Eric Holder was right about how to try the 9/11 defendants

Part 1 of 2

About 10 years ago, former Attorney General Eric Holder appeared before the Senate Judiciary Committee to defend his decision to try the 9/11 case defendants in a civilian federal court in New York City. But those who attacked him, many of them Republicans, should have realized that, by that time, civilian federal courts already had tried successfully more than 100 terrorist cases since 9/11. By February 2018, such courts had already convicted more than 660 individuals on terrorism-related charges since the brutal attacks on that terrible day.

Compare the current and feeble record of the military commissions at Guantánamo Bay, as described in national security expert Steve Vladeck’s April 16 piece in “Lawfare,” “It’s Time to Admit that the Military Commissions Have Failed:” 

•  In 13 years, the commissions have produced merely eight convictions, six of which resulted from plea bargains;

• Only one of those convictions, that of al Bahlul, has survived a post-conviction appeal to the D.C. Circuit Court of Appeals (D.C. Circuit);

• In that case, the D.C. Circuit dismissed two of the three charges as being in violation of the U.S. Constitution, after the military commission and the Court of Military Commission Review (CMCR) had unanimously sustained them. The only surviving charge failed to obtain a majority rationale from the D.C. Circuit;

• Three other convictions, all in cases where defendants had pleaded guilty, were vacated on appeal.

Hence, it plainly was a sad day when, in the face of enormous political pressure, Holder failed to stick to his guns. Both capital prosecutions — the 9/11 and the U.S.S. Cole cases — wound up before military commissions at Guantánamo Bay. Both began with the filing of charges in 2011 and remain mired in their pre-trial stages with no trial date being set, and none expected anytime soon. This pathetic record belies the primary rationale for creating the military commissions in the first place — that such a judicial system would deliver closure expeditiously.  

In the latest body blow to the military commissions, on April 16 a unanimous three-judge panel of the D.C. Circuit, including Judge Thomas Griffith who normally has ruled in favor of the military commissions, nullified every pre-trial order rendered over more than two years by former military judge Vance Spath in the capital prosecution of Abd al-Rahim Hussein Muhammed al-Nashiri, the alleged mastermind of the lethal attack on the U.S.S. Cole while it lay at anchor in Yemen in October of 2000. The Court also threw out every ruling by the CMCR that reviewed now-vacated Spath orders. 

In a case already renowned for how long it has been taking, the Court nullified more than two years of the little progress it had made! Think of how angry and upset that must have made the survivors and relatives of the 17 sailors who died when an explosives-laden launch was detonated beside the ship, almost sinking it. Something hugely important, even astonishing, must have forced the judges to mete out such severe justice.  And, given the clear magnitude of Spath’s offense and the culpability of the prosecution, the Justice Department (DOJ) and even the CMCR, I doubt strongly that the government will seek to have that harsh decision reviewed by either the entire D.C. Circuit or the U.S. Supreme Court.

Here’s what prompted the panel to inflict such a blow. A bit over a year after Spath had assumed the role of military judge in the case in mid-2014, he applied for a job as an immigration judge with the DOJ, which also was playing a major role in al-Nashiri’s prosecution. Making this blunder worse, Spath never disclosed this blatant conflict of interest to the defendant and his legal team. Further, his application highlighted the importance of his role in al-Nashiri’s capital prosecution. It emphasized his “five years of experience as a trial judge” and crowed that he had been “handpicked by the top lawyer in the Air Force” to preside over “the military commission proceedings for the alleged ‘Cole bombing’ mastermind….”  He even provided as a writing sample an order he had issued in the case.

After then-Attorney General Jeff Sessions appointed Spath as an immigration judge, an offer of employment came through. But as Spath still was an Air Force officer on active duty, and also remained detailed to preside in the Cole case, it would take time for him to be available, so the DOJ agreed to hold his paperwork and contact him again almost a year later, in early 2018.  

Part 2 next time.


Charles R. Church is a resident of Salisbury. He is one of the attorneys representing Zayn al Abidin Muhammad Husayn (known as Abu Zubaydah), a detainee now at Guantánamo, who has been held by the U.S. government for more than 17 years. Church’s opinions are his own.