Military Commissions

3/2 Session #1: Unlawful Influence

By Wells Bennett
Monday, March 2, 2015, 11:36 AM

The military judge, Air Force Col. Vance Spath, ascends the bench.  Our proceedings return to order.

And they begin with a bang: That is, with the court partially granting defense motion AE332, regarding unlawful influence owing to actions of the Defense Department and the commissions’ Convening Authority, retired Marine Maj. Gen. Vaughn Ary.  A written ruling, Judge Spath says, is forthcoming, but the gist his bench ruling is this: Last week’s rescission of a controversial order (so called “Change One”), requiring military commission judges to reside at Guantanamo and to work on commission cases only, does not remove the appearance of an improper effort to improperly influence commission proceedings.  In that respect, the defense seems to have prevailed.

The court’s factual summary seems to telegraph the outcome. First Judge Spath recites a quite lengthy factual summary---in which Spath notes, among other things, the concerns over the “pace of litigation” which had motivated Change One initially. Additionally, in the view of the Convening Authority, Spath intones, “realignment of resources” was required, so as to make commission judging a full-time affair and to bring commission litigation to a speedier resolution. That's problematic. As Spath observes, the Convening Authority has no authority over trial judges, and their discretion to adjust the litigation tempo, bar the duty to ensure that the judges receive needed resources. And there is no power, he adds, to influence judicial discretion or to push the pace of commission cases.

This brings Spath to a discussion of controlling legal principles regarding unlawful influence. These are conceptually distinct from the narrower courts martial doctrine of unlawful command influence---but courts martial precedents are nevertheless instructive.  Among other things, the case law precludes measures that even create the appearance of unlawful influence, or “UI,” as Judge Spath puts it. As for whether such an appearance exists, the test is one of objective reasonableness.  This raises the question squarely: Would an objective observer harbor significant doubt about the proceedings’ fairness?

Here, the answer is Yes.  Though well-intentioned, Judge Spath says, the Convening Authority’s motivation was clearly to speed up commission proceedings, and thus to trample discretion committed solely to the trial judiciary. Said differently, an objective person would have doubts about the case's fairness under the circumstances. One relevant detail, in the court’s view, goes to the absence of notification of Change One to the Defense Department’s General Counsel and other high-ranking personnel; another has to do with the obviously problematic nature of giving judges an incentive to hurry up commission cases, so as to return to prior duty stations. (You can see lawyers asking the question: Did the court deny a defense-proposed continuance in the interests of justice, as the rules require, or instead merely in order to hasten a departure from the Naval Station?) Finally, Spath observes that the government has presented no evidence at odds with this account. (As an aside, the court points to the futility of the policy: Why would making only the judges take up full time at GTMO move things along more quickly? After all, says Judge Spath, hearings and trials require not merely judges, but also counsel, witnesses, evidence, and accused.)  

So what of the rescission?  Yes, it is true that Change One has been rescinded; it also seems future orders with potentially harmful consequences for the commissions must be more widely and rigorously vetted by the Department of Defense. But that’s not the whole story. The Change’s overturning only removes the formal effort to influence Spath and other commission judges.  Yet even that leaves in place a lingering cloud over the independence of the trial judiciary.  Remember, Ary took an action specifically designed to interfere with the pace of commission cases; and, Judge Spath says, the policy seemingly could have brought about Spath’s own departure from Al-Nashiri’s trial, for scheduling reasons. It lastly happens that Ary is still the Convening Authority---and the latter testified that he would enact Change One all over again, if given a second chance. There is, in other words, a wrong to remedy, Change One's invalidation notwithstanding.

So what is that remedy? To nobody's surprise, Judge Spath says he won’t dismiss the case. But he will disqualify the Convening Authority, Vaughn Ary and his legal advisors, from taking any actions in Al-Nashiri’s case, including making recommendations. The Secretary of Defense must, Spath says, appoint a new Convening Authority who will consult with outside advisors. Moreover, in order to prevent any lingering taint imposed by Ary’s actions, and further to reaffirm the court’s independence, Judge Spath says he will cancel any remaining evidentiary hearings this week; the April hearing in Al-Nashiri’s case, moreover, will be truncated.  The unlawful influence motion thus is partially granted and partially denied.  

Along with a little housekeeping, that takes us to a brief recess.  We expect a little argument in the afternoon, along with the possibility of a closed session. Before the gavel bangs, Judge Spath returns to this theme: He can’t stress how improper it is to try to affect judicial independence, or to influence a judge to leave the case.  That’s why Judge Spath has formulated the relief as he did in his order on AE332.