Court Agrees with Ethics Bureau that Judge in Terrorism Case Acted Improperly

A federal appeals court agreed with the Ethics Bureau at Yale that the military judge in the USS Cole bombing case acted improperly, ruling that years of proceedings under that judge must be thrown out.

At issue was the judge on the case against Abd Al-Rahim Hussein Muhammed Al-Nashiri, the alleged mastermind of the deadly attack of the U.S. warship in 2000 and a Guantanamo detainee. Colonel Vance Spath presided over the case while secretly pursuing a job as an immigration judge with the Department of Justice. The Ethics Bureau’s amicus brief in support of Al-Nashiri’s petition for a writ of mandamus argued that Spath had a conflict of interest because he was seeking a job with the Department of Justice while regularly hearing from the department’s lawyers in court. Professional conduct rules prohibit judges from presiding over cases involving their potential employers, even if it only creates the appearance of a conflict. Moreover, the bureau argued, Spath had a particular financial interest in convicting Al-Nashiri because former Attorney General Jeff Sessions, who led the Department of Justice at the time, had publicly called for Al-Nashiri’s conviction. Under these conditions, according to the bureau, Spath violated ethics rules and deprived Al-Nashiri of due process of law.

The court sided with the Ethics Bureau and Al-Nashiri, granting his petition on April 16 and vacating all of the orders Spath issued in the case since applying for the immigration judge job in 2015. Spath stopped presiding over the case when he got the new job last year.

“The D.C. Circuit’s decision … underscores that judges may not take lightly the duty to recuse — an obligation that protects the due process rights of litigants and safeguards the legitimacy of the courts,” said Paul Shortell ’20, who wrote the brief with Elise Grifka Wander ’19.

The Ethics Bureau worked with Florence Rogatz Visiting Lecturer in Law Eugene Fidell to submit the brief. Fidell, whose expertise includes habeas corpus and military justice, collaborated with the bureau on another case involving judicial ethics and a Guantanamo detainee in 2015.

“I’m grateful to have been a part of Mr. Al-Nashiri’s case and to have seen a glimpse of the fight for justice on Guantanamo,” Wander said. “It’s humbling to see the tireless advocacy necessary to achieve just a chance at a fair trial in this case. And it’s a reminder that we can’t take ethical standards for granted, even — and especially — when the stakes are high. To face the possibility of a death sentence at the hands of a judge who may be biased against you is unthinkable.”

Michel Paradis, a senior attorney for the Department of Defense and a lecturer at Columbia Law School, argued the case on January 22. Paradis came to New Haven to moot the case with Fidell and students Wander, Darcy Covert ’20, Megan Mumford ’20, Abby McCourt ’20, and Elizabeth Villarreal ’19.

The Ethics Bureau at Yale (EBaY) advises lawyers on how to proceed when faced with violations of the Model Rules of Professional Conduct and other ethical dilemmas. Students draft amicus briefs in cases involving professional responsibility; help people with ineffective assistance of counsel claims; and offer ethics advice to nonprofit legal services organizations. A weekly class on professional responsibility is also part of the bureau. The Ethics Bureau is taught by Lawrence Fox, the George W. Crawford Visiting Lecturer in Law.