An appeals panel on Friday limited the authority of the judge presiding in hearings in the U.S.S. Cole bombing case while it considers an ethics challenge, the latest obstacle in the slow-moving path to trial in the longest-running war crimes prosecution at Guantánamo Bay.
At issue is whether Col. Lanny J. Acosta Jr., the judge, had a duty to step down earlier this year when he lined up a civilian job at the Defense Department to follow his retirement from the Army on Sept. 30.
Lawyers for Abd al-Rahim al-Nashiri portray Colonel Acosta’s pursuit of his next job — as a clerk at the Air Force judiciary — as a conflict of interest because he was simultaneously seeking a job from the Pentagon while presiding in a case being brought by the Pentagon.
Mr. Nashiri, a Saudi prisoner, is accused of orchestrating the Oct. 12, 2000, bombing of the destroyer Cole off Yemen that killed 17 U.S. sailors. He has been in U.S. custody since 2002 in a case that has been hampered by challenges, including over the judge’s 2021 decision, since overturned, to accept evidence derived from torture in certain circumstances. No trial date has been set.
In 2019, a federal court threw out two years of rulings after Cole case defense lawyers prevailed in a similar challenge. In that instance, Judge Vance H. Spath failed to disclose that he was seeking employment with the Justice Department, which has a key role in the Cole case prosecution. He eventually obtained a job as an immigration judge.
Col. Spath subsequently left the immigration court and took a civilian legal job at the Pentagon, as a special adviser to the two most senior lawyers in the Air Force.
Lawyers for Mr. Nashiri mounted the latest ethics challenge after Colonel Acosta announced in court on April 19 that he had applied a day earlier for the civilian job with the Air Force. The judge said he had considered the possibility and concluded that “there’s no possible conflict between my role as the military judge in this case and my application.” Then on May 26, he disclosed that he had been tentatively offered the job and had accepted it.
Defense lawyers asked the U.S. Court of Military Commissions Review to stop Colonel Acosta from presiding this month. They also want his rulings since April 18 scrubbed from the record.
Air Force judges and lawyers do temporary tours of duty at the Guantánamo court.
Colonel Acosta and Cole case prosecutors dismiss the idea of a conflict and have scheduled three weeks of pretrial hearings starting Monday.
On Friday, a three-judge panel from the Court of Military Commissions Review issued an order limiting what the judge can do next week, while it considers whether to halt the proceedings. He can hear testimony and receive exhibits on pending motions, but he cannot rule on any of them, with one exception: He can decide whether to disqualify himself.
The panel also permitted him to offer more information on how he got the new job. Mr. Nashiri’s lawyers have said they want to question him in open court.
Colonel Acosta has had the case since 2019. He has yet to issue some key pretrial rulings, including on a motion to dismiss the case or remove the possibility of a death penalty on grounds of outrageous government misconduct related to Mr. Nashiri’s torture by the C.I.A.
The problem of judges retiring or departing for other assignments is endemic at the war crimes court at Guantánamo Bay. Unlike in federal court, many military lawyers take turns as judges in between roles as defense, prosecution and staff attorneys, causing a revolving door at the war court’s judicial bench.
Of the four active cases at Guantánamo, Colonel Acosta and a Navy judge in the Bali bombing case are leaving, and an Army colonel based in Germany arrived this week to take over presentencing proceedings in another case.
Colonel Acosta is also the chief Guantánamo judge, an administrative position that will have to be filled when he leaves the court.
Carol Rosenberg has been covering the U.S. naval base at Guantánamo Bay, including detention operations and military commissions, since the first prisoners were brought there from Afghanistan in January 2002. She worked as a metro, national and foreign correspondent with a focus on coverage of conflict in the Middle East for The Miami Herald from 1990 to 2019. @carolrosenberg • Facebook
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