The main gate at the prison in Guantanamo Bay is pictured. A federal appeals court threw out years worth of rulings from Guantanamo Bay's military tribunals on Tuesday. | Sylvie Lanteaume/AFP/Getty Images Legal Guantanamo military tribunal hit with another legal setback The tribunals were created after the 9/11 terrorist attacks to prosecute detainees at the military prison.

A federal appeals court dealt another severe blow to the beleaguered Guantanamo Bay military tribunals Tuesday, tossing out three years worth of rulings in a key terror case after deciding the judge overseeing the proceedings did not appear to be impartial.

In a blistering opinion, the D.C. Circuit Court of Appeals held that Air Force Col. Vance Spath created “an intolerable cloud of partiality” over the military commission by pursuing a job at the Justice Department while simultaneously presiding over the case against Abd Al-Rahim Al-Nashiri, the alleged mastermind of the USS Cole bombing in Yemen in 2000.


The unanimous opinion from a three-judge panel also accused Spath of a “lack of candor” for obscuring his pending job change by not revealing it when he halted proceedings in the case in July 2018.

Judge David Tatel said that under the circumstances, Al-Nashiri had “a clear and indisputable right to relief.”

The case is being handled under Guantanamo Bay’s military commissions, created after the Sept. 11, 2001, terrorist attacks to prosecute detainees at the military prison.

Playbook PM Sign up for our must-read newsletter on what's driving the afternoon in Washington. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

The process — intended to bypass civilian courts out of concerns they might offer too many rights to the accused and jeopardize classified information — has run into one hurdle after another, including repeated allegations of intrusions on the confidentiality of defense communications.

The problems have led to a tangle of litigation that has resulted in protracted delays, not only in the Cole case, but in another case against men accused of involvement in the Sept. 11 attacks.

Tuesday’s ruling is yet another setback for the tribunal system. The order included an extraordinary rebuke of military judges, prosecutors and other officials for failing to ensure that the commission process remained free of bias and the appearance of bias.

“Criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the [Court of Military Commission Review] to the judge himself—failed to live up to that responsibility,” Tatel wrote. “And we cannot dismiss Spath’s lapse as a one-time aberration, as Al-Nashiri’s is not the first meritorious request for recusal that our court has considered with respect to military commission proceedings.”

Tatel added that the need for an independent judge in Al-Nashiri’s case was heightened by the fact that the government is seeking the death penalty in connection with the deaths of 17 soldiers in the Cole attack.

“In no proceeding is the need for an impartial judge more acute than one that may end in death,” Tatel wrote in an opinion joined by Judges Judith Rogers and Thomas Griffith.

The ruling will void about 460 written orders Spath issued as well as an untold number of oral rulings, including rulings he issued against defense attorneys who attempted to withdraw from the case over ethics concerns.

The decision means any trial for Nashiri, an alleged al-Qaida operative, will likely come more than two decades after his alleged crime.

Tatel said the court recognized that the ruling would lead to further delays in a process already faulted for its glacial pace, but added that upholding the legitimacy of the process had to take precedence over speed.

“Surely the public’s interest in efficient justice is no greater than its interest in impartial justice,” Tatel wrote. “Any institution that wields the government’s power to deny life and liberty must do so fairly, as the public’s ultimate objective is not in securing a conviction but in achieving a just outcome.”

The appeals court also noted that the military initially replaced Spath with another military judge, Air Force Col. Shelly Schools. However, earlier this year, government lawyers said her retirement was imminent — as she also had accepted a position in the Justice Department’s burgeoning ranks of immigration judges.

The Justice Department declined to comment, citing the pending litigation.

Pentagon spokesman Johnny Michael said, "The Department of Defense is reviewing the order and accompanying opinion, and assessing all available options."

An attorney for Nashiri, Michael Paradis, said the D.C. Circuit decision ruling is an indictment of the military commissions system.

“It is a disgrace that it had to come to this,” Paradis told POLITICO. “These are basic rules of judicial ethics. They were violated for years. They were violated in secret. And no one within the military commission system … did anything even after they came to light.”

“Things like this would never have happened in a federal court, let alone festered for years as they have,” Paradis added.