Tuesday, June 03, 2008

Gitmo Chief Judge: trial judge's replacement unrelated to rulings

As reported here last week, Army Colonel Peter E. Brownback III was recently replaced as presiding judge in the trial of Omar Khadr, a Canadian detainee accused of killing a U.S. soldier in 2002.

Although Khadr's counsel had intimated that Judge Brownback was removed from the case because he had ruled in favor of the defense, the real reason, according to Marine Colonel Ralph Kohlmann, the chief judge at Guantanamo, was the fact that Judge Brownback's active-duty orders expire at the end of this month. "My detailing of another judge was completely unrelated to any actions that Col. Brownback has taken in this or any other case," Kohlmann said.

Chief Judge Kohlmann also laid to rest the suggestion that Judge Brownback had asked to retire: "Any suggestion that Col. Brownback asked to return to retired status before the case of US v. Khadr was completed is also incorrect."

12 comments:

Anonymous said...

But why were Col Brownback's orders not extended, when he's in the midst of this complex case and apparently not opposed to remaining in the position?

Gene Fidell said...

Does having a judge on a year-to-year basis provide reasonable assurance of judicial independence? Does such an arrangement foster public confidence in the administration of justice. Why did Judge Kohlmann not protest the Army's [thus far unexplained] decision to end Colonel Brownback's recall to active duty?

Anonymous said...

What's with NIMJ? They have a link to a site that claims President Bush should be shot and that he is on active duty, subject to the UCMJ.

Anonymous said...

They have a link to...? Boy, that's great reasoning. Guilt by association.

OK, I'll play your game: What's with the United States? The US Government is "linked to" slavery, genocide, war crimes, assasinations (not just claiming that other presidents should be shot, but actually shooting them), etc., etc.

Hold people and organizations accountable for what they actually advocate and do, not such specious "linkages."

Do you have a response to the argument that we need judicial independence? Or would you like to throw another rhetorical smoke-bomb?

Gene Fidell said...

The NIMJ website has an automatic feed feature that picks up news stories based on key words. We do not select the stories that appear in the newsfeed box. Not a perfect system, obviously, but it beats allowing anonymous posts since the source is disclosed for all to see.

Christopher Mathews said...

Mr. Fidell, your comments in post #2 above are well-taken, but include at least one assumption more than the record presently supports: Chief Judge Kohlmann may well have opposed the decision that prompted Judge Brownback's replacement, but elected to do so privately through channels. On the other hand, he may have felt the matter sufficiently innocuous that no protest was appropriate.

I don't know that there's a basis for determining what position he took on the matter, or even that he had any input at all.

Gene Fidell said...

Chris, you make an excellent point: we don't know if Chief Judge Kohlmann objected. But he either did or didn't. If he didn't, the stated concern remains. And if he did, why not do it on the record? Even if he had no input before the deed was done, that would not have prevented him from registering an after-the-fact public objection (e.g., by resigning). I imagine we will know more some day, but for the moment I think it fair to say that this episode makes it harder, rather than easier, for the public to have confidence in the administration of justice through military commissions.

Anonymous said...

Let's start with the fundamental question: Why was Col. Kohlmann chosen to be chief judge in the first place?

He is probably a great lawyer. But I'm guessing that he also has a track-record as a hard-liner that inspires confidence in Washington.

Chris Mathews point about going through "channels" sends chills down my spine. The things that are considered perfectly normal in military justice are truly jaw-dropping. Why not have federal judges have private phone conferences with US Attorneys, too?

Anonymous said...

I don't know about any other "track record as a hard-liner" that Chief Judge Kohlman might have relied on to get the job, but the article he reportedly wrote at as a Master's candidate at the Naval War College hardly seems to qualify him as such.

As reported by NYT, Judge Kohlmann wrote in 2002, that the military commission process would face criticism for the “apparent lack of independence” of military judges and would have “credibility problems,” the very argument made by Guantánamo’s critics.

He said it would be better to try terrorism suspects in federal courts in the United States. “Unnecessary use of military tribunals in the face of reasonable international criticism,” he wrote, “is an ill-advised move."

Anonymous said...

Good find. Interesting.

Gene Fidell said...

I have today made a FOIA request for, among other things, the background documents on the termination of Judge Brownback's recall to active duty and any objections he or Judge Kohlmann may have filed.

Anonymous said...

Interesting that the Early Bird had a story that commissions are priority number one of DoD and they let an experienced judge go at retirement. Surely they could have extended him or immediately recalled him after retirement.