Guantánamo judge refuses to step aside

The judge presiding over three high-profile military commission trials at the US base at Guantanamo Bay refused to disqualify himself Tuesday over accusations that he is vulnerable to improper influence from the military bureaucracy and from his commanding officers.

Defense lawyers for the suspected mastermind of the 2000 attack of the USS Cole had argued that US Army Col. James Pohl’s independence is undercut by the fact he works on a year-to-year basis, having been recalled from retirement to serve as the commissions’ chief judge.

Colonel Pohl, however, rejected those arguments, saying Congress ordered military judges to preside over the commissions: “My status is no different than any other military judge.”

The recusal motion was potentially significant because Pohl has assigned himself to preside over all three pending trials involving so-called high value detainees at the US Naval Base in Guantanamo Bay, Cuba. This includes the trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and of Abdal Rahim Al-Nashiri, who is accused of plotting the suicide bombing of the USS Cole that killed 17 US sailors.

Because there is only limited legal precedent guiding the newly created military commission process at Guantanamo, Pohl will play a particularly important role in shaping how tribunals will be conducted, such as deciding which pieces of evidence are allowed in the trials, including classified information and details culled from coercive interrogations.

The decision came on the first of three days of pretrial hearings in Mr. Nashiri’s case, being held at a high-security courtroom at the Guantanamo base. A live video feed of the proceedings was broadcast to reporters at Fort Meade in Maryland.

The recusal motion was presented by Nashiri’s lead defense lawyer, Richard Kammen. The lawyer argued that Pohl lacked the requisite level of judicial independence to avoid the appearance of a conflict of interest.

As a retired US army colonel recalled to active duty, Pohl is serving under a year-to-year contract, renewable every September.

Mr. Kammen said the arrangement left the judge vulnerable to removal by the Department of the Army should Pohl issue rulings that displease or anger Defense Department officials.

Should he be removed, Pohl’s salary would revert to his retirement pay – roughly 20 percent less than he is currently receiving.

That possible loss creates a financial incentive for the judge to avoid ruling in a way that might cause him to lose his job – and 20 percent of his compensation, Kammen said. That is a direct financial interest that could influence the judge and taint public perceptions of the military commission process, he argued.

Judicial independence is a fundamental principle enshrined in the US Constitution. Federal judges are appointed for life and the Constitution commands that a federal judge’s salary may not be reduced – ever.

The provision is designed to fortify judges against outside influences and help insure that their rulings are made without fear or favor.

In contrast, military judges are not part of a separate, independent branch of government. They function within the military bureaucracy and thus are employees within a chain of command who are assigned their work as judges and are paid a salary. Unlike federal judges, military judges can be reassigned.

In 1994, the US Supreme Court examined whether the lack of a set term in office for military judges undercut their independence and raised questions about the fairness of their trials. The high court ruled that those differences did not undercut the ability of military judges to remain impartial and free of the influence of senior officers.

But Kammen’s motion raised a different issue. Pohl’s status as a judge who was recalled from retirement renders him more vulnerable to the influence of his superior officers than an active-duty judge, the defense lawyer said.

Pohl’s contract must be renewed each year, unlike an active-duty judge. In addition, should his contract be terminated, he would return to retirement and his pay would be reduced by 20 percent, unlike an active-duty judge.

Those circumstances create not just the appearance of a potential conflict of interest, they establish that the judge has a financial stake in his continued involvement in the military commission process, Kammen said.

Prosecutors opposed the defense motion and urged the judge not to recuse himself from the case.

Assistant Trial Counsel Navy Cmdr. Andrea Lockhart said an attorney must present more than just “fears, accusations, and surmise” to warrant a judge’s disqualification from a case.

A judge has as much obligation not to recuse himself where there is no reason to do so, as when it is proper to step aside, she said.

Pohl said it was routine for military judges to be transferred and for more than one judge to hear a case.

Kammen countered that no active-duty judge detailed to another case would suffer a reduction in pay. “Your situation is significantly different,” Kammen told Pohl. “And that creates a legally cognizable conflict that requires your recusal.”

Kammen compared Pohl to a military judge who presided over an earlier commission trial and lost his job after make a ruling that allegedly angered officials in the Defense Department and at the White House.

Col. Peter Brownback had served as a commission judge from 2004 to 2008. Like Pohl, he had been recalled from retirement and his contract was renewed year to year.

In June 2007, Colonel Brownback issued a ruling dismissing all charges on jurisdictional grounds in the commission case of Omar Khadr. The action forced the Defense Department to create a military appeals court to review the decision. It also stalled the fledgling military commission process.

Brownback later commented to a lawyer that he had taken “heat” as a result of his Khadr decision. The comment found its way into the press. A few months later, Brownback’s contract was not renewed and a new judge took over the Khadr case.

Kammen said given the high profile stature of the Nashiri case, the judge should step aside to help build public confidence in the military commission system. 

 “It is the view of much of the world – and I believe it is a correct view – that all of [the military commission process] is a façade to convict these people and kill them and do it in secret,” Kammen said.