Thursday, January 29, 2009

Army Judge Pohl Sticks it to Obama Adminstration [Updated]

Here is a link to breaking news from the WaPo that Army Colonel James Pohl has denied the Obama Administration's request to delay the military commission hearing in the case of Abd al-Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Al-Nashiri is accused of, according to the Post, "planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others."

The article says Judge Pohl found the government's arguments for postponing the arraignment "unpersuasive." Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.

Update: Apparently the defense did not object to the continuance, though Nashiri's defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, "The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

The WAPo gave us this quote, that falls into the understatement of the year (it's early) category, "'It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney."

Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.

67 comments:

Anonymous said...

Hmmm. An army officer refusing to follow orders from the President...will this judge be court-martialed?

Anonymous said...

Wasn't an order, was a prosecution motion. Order would've been UCI. No court-martial.

Anonymous said...

Yeah, maybe the Cox Commission II can look into how we can insure that our Military Judges lackey the orders of their superiors, rather than exercise independent judgment in accordance with their understanding of the law....that's the ticket to greater respect for the military justice system.

Anonymous said...

Nice to see the judge looking out for al-Nashiri's speedy trial rights.

Anonymous said...

This is the same MJ that declared Abu Ghraib prison a crime scene and forbade its demolition after former President Bush said it would be demolished.

Anonymous said...

I was going to write a joking comment about they could have the commission trial, and then the regular federal circuit court of appeal could decide the case belonged in civvie court under regular criminal charges, and then follow the usual military course and proclaim the defendant guilty of the new charges based on the old trial.

Then I realized it wasn't funny.

Anonymous said...

No, that is still hilarious.

Anonymous said...

it was - in fact - an order:

"The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted."

brian mizer said...

As an interested observer, this is a fascinating issue. The last post is correct, there was an executive order in addition to the requests made by the prosecution. But what authority does the President have to stop an Article I court from proceeding? Have we returned to Colonel Winthrop's 1886treatise where he describes military courts as merely the executive arm of the president?

John O'Connor said...

But that's an order telling SECDEF what to do. I suspect President Obama is too smart to issue an order to the judge to do anything, as it would be pretty clear UCI.

I can kind of see both sides. I can see the point that the administration wants to get snapped in and review current procedures. But I can see Judge Pohl's position that an arraignment isn't going to somehow undermine the administration';s ability to review commission procedures.

I sort of appeared before Judge Pohl in the Abu Ghraib courts-martial. He granted a motion to quash a subpoena that had been served on my client, though I think I did all my talking in chambers (with counsel for the parties present). I only saw him for a couple of hours, but he seemed to run a pretty tight, no-nonsense ship.

Anonymous said...

What some fail to understand is that Art. I courts are DIFFERENT from Art. III courts. This judge's action is a problem. The president runs the military, not the trial judges.

Anonymous said...

The President issued an order to Sec of Def. It may be a lawful order to him, or maybe even an lawful order to the Convening Authority for the Commissions. Its an illegal order to a military judge and UCI if he were to do so. This is not to say that Judge Pohl's decision isn't subject to review, but once again it won't be by the President.

Anonymous said...

Fine print -
Order is used in the broadest sense. Civilians such as the Sec Def and the C/A could be fired for failing to follow orders, unlike the military.

This all assumes the Military Commissions tracks completely the UCMJ, which it doesn't to my understanding.

If the POTUS were to intervene in actual C/M proceedings and try to order a military judge to stay a proceeding, that would be UCI no different than if the Chief of Staff were to do so, or the Division Commander, or some BCT Commander. And SCOTUS would likely end up deciding that issue.

Dew_Process said...

Maybe it's simpler as one post suggests - If the government is directed to "halt" further proceedings, then withdraw the pending charges without prejudice. Leaving them pending before the MJ leaves it to his "sound discretion" on granting adjournments. The MJ may be politely signalling, "put your money where your mouth is...."

Anonymous said...

MCA 2006 gives authority to the President and SecDef to convene Kangaroo Courts. It doesn't establish any sort of judicial review power regarding Commander-in-Chief or other Presidential powers. There was no room for the Military Judge to be "unconvinced," "unpersuaded" or otherwise. The harder question is what mechanism should be used to fix the problem.

As an aside, it's difficult to restore the rule of law when there's lots of unconstitutional "law" floating around -- what is the President's obligation to enforce? The answer as to torture was to nullify all the DOJ memoranda, which was done. Some things are trickier. Welcome to the awkward transition phase.

Anonymous said...

A bit editorial with the posting headline. And I really doubt Judge Pohl was trying to "stick it" to the President.

Anonymous said...

This is not an Art. III judge, he does not have the luxury of just choosing to ignore his superiors, in this the President. Last I checked, President was higher than colonel...of course, when I was in the military, drill instructors wouldn't get court-martialed for slapping a little sense into new recruits...

An Old Judge said...

Arraignment does not trigger the protection against double jeopardy the last time I was on the bench: seat the panel or, in judge alone setting, call the first witness.

The EO does not address Judge Pohl. It addresses the SecDef, who, if he had any competent legal counsel, would have directed the C/A to withdraw the charges rather than asking for delay.

And for what it's worth, the President does not and should not give orders to the federal judiciary (Art III), either.

Ted said...

The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES “RES IPSA LOQUITUR” BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?wprss=rss_nation

Anonymous said...

Grassy knoll

Anonymous said...

Welcome, Ted! Please stick around and offer your insights!

ED said...
This comment has been removed by a blog administrator.
brian mizer said...

For those in this string who believe that the 20th century reforms of military justice never arrived and that military courts are mere extensions of the President, what are the limits of the President's power? If the President may order a sitting judge to stop a case, can he direct findings of guilty? Can he remove a sitting judge if he disagrees with his rulings? Is he only constrained by the UCMJ in taking action in an ongoing court-martial? And since only the bizzaro UCMJ applies at GTMO, is he not constrained at all under the MCA? Have you studied the 1968 amendments to the UCMJ, or are you still calling judge Pohl law officer Pohl?

Anonymous said...

Look, pal, all you MJ wonks can sit back and theorize about the "extent of Presidential power" all you want. But know this: our military does not exist to try wayward soldiers (or terrorists, for that matter). It exists to defend our way of life. So, yeah, at the end of the day, the President can tell a colonel (judge or not) when to jump and how high...

Anonymous said...

Brian made a new pal. I think that's nice.

Phil Cave said...

Direct the prosecutor the withdraw the chares.

Anonymous said...

Well said Phil.

Anonymous said...

ANON 2110 - "our way of life" is the U.S. Constitution, and a judge, military or civilian, is still a judge and part of the "judiciary."

The President cannot tell a military judge what to do, period. He can remove him from the Bench, decertify him as a JAG and whatever, but he cannot legally interfere with the judicial function.

Toussaint-Guillaume Picquet de la Motte said...

I do find comments that start, "Look, pal..." to be very persuasive. I will have to incorporate that trial advocacy tip into my daily practice.

Anonymous said...

I am so tired of all these anonymous comments. If they don't stop, I'm outta here by the super bowl...

Anonymous said...

I think "Military Justice wonk" should be a bullet in my next fitrep.

Anonymous said...

I agree- while I am reasonably sure the poster meant it as an insult- MILJUS Wonk has a nice ring to it. I expect it will start appearing in numerous evaluations from now on. Woo hoo!

I also really appreciate the "Look pal" appraoach. it is friendly yet has nice undertones of hostilty. Very nice touch. I too will try to encorporate it in my practice of wonk-ness.

brian mizer said...

ANON 2110-You make a very convincing argument, and those over at the War Department are sure to agree with you. I think General Ansell summed up your position in his testimony before the Senate Subcommittee on Military Affairs on August 25, 1919. "In my judgment, it is too clear for argument that courts-martial having once been brought into being their proceedings and judgements when properly completed and all that is incident thereto, are not based upon, but indeed are independent of, the power of command as such. Winthrop thought otherwise, and he has been followed blindly ever since by the War Department, though more recent decisions of the Supeme Court of the United States have exposed the fallacy of his views." The recent cases General Ansell referred to as rejecting Winthrop's view began a year after Winthrop published the first edition of his treatise in 1886 with Runkle v. United States, 122 U.S. 543 (1887).

As noted above, the appropriate thing to do is have the convening authority withdraw the charges and dismiss them without prejudice. Of course this carries potential political consequences, which is probably why the government elected to first attempt to stay the proceedings with a motion before the Commission.

Anonymous said...

Does the Military Commissions Act contain a prohibition on unlawful command influence akin to that contained in the UCMJ? If not, is there any rule that prevents the president or SECDEF from ordering a judge to perform a particular act?

brian mizer said...

It does contain a prohibition against unlawful influence. See, 10 U.S.C. 949b (2006). If you compare the language in section 949b to Article 37, you will find that the detainees are afforded greater protections against unlawful influence than are uniformed service members. Colonel Mo Davis testified in Hamdan's case and others that he wrote this provision for Senators Graham and McCain and bolstered the protections against unlawful influence because he knew that politicians would attempt to influence the commissions process.

joonka said...

Forgive me if am wrong for I am non-lawyer, who enjoys this forum, but I believe there is no problem here, my understanding of the meaning of an independent judiciary is exactly that"INDEPENDENT" our constitution makes no allowance for judicial interference by any other branch ofm government not even the president the chief of the excecutive branch. In the judiciary the judge and even in the military is no longer in the president's chain of command though he serves at the discretion of his superiors who are in the president's chain of command. Now the the prosecutor on the other hand works directly in the presidents chain of command , hence he can be order to withdraw charges, which in effect would comply with the president's order, The judge in this instance is backed by precidence and the great constitution of the united states, hey guys, just ask SCOTUS!

Idont see a big problem here its a simple fix order TC to withdraw charges, I dont believe jeopardy attaches at this point with most of these case. Further POTUS, IS A SMART GUY and a constitutional lawyer, he knows this stuff, SECDEF dropped the ball on this one in my humble opinion.

MILJUS Wonk II said...

Legal issues aside - as interesting as they are - we must remember that as military officers, we all "serve at the pleasure of the President." I'm not sure I'd want to get into a pi$$ing contest with the Commander in Chief, particularly this one, since his personal popularity is high & the GITMO issue low in public esteem. I mean that to say that your only redress after you're fired (or at least have had your career "halted") is the media, and you'll not get any traction there. An order is presumed lawful and one disobeys it at his own peril.

Anonymous said...

Maybe citing the reference isn't enough, we'll try posting it:

§ 949b. Unlawfully influencing action of military commission

(a) In general.
(1) No authority convening a military commission under this chapter [10 USCS §§ 948a et seq.] may censure, reprimand, or admonish the military commission, or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or his functions in the conduct of the proceedings.
(2) No person may attempt to coerce or, by any unauthorized means, influence--
(A) the action of a military commission under this chapter [10 USCS §§ 948a et seq.], or any member thereof, in reaching the findings or sentence in any case;
(B) the action of any convening, approving, or reviewing authority with respect to his judicial acts; or
(C) the exercise of professional judgment by trial counsel or defense counsel.
(3) Paragraphs (1) and (2) do not apply with respect to--
(A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or
(B) statements and instructions given in open proceedings by a military judge or counsel.

(b) Prohibition on consideration of actions on commission in evaluation of fitness. In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of any such officer or whether any such officer should be retained on active duty, no person may--
(1) consider or evaluate the performance of duty of any member of a military commission under this chapter [10 USCS §§ 948a et seq.]; or
(2) give a less favorable rating or evaluation to any commissioned officer because of the zeal with which such officer, in acting as counsel, represented any accused before a military commission under this chapter [10 USCS §§ 948a et seq.].

Anonymous said...

Oh yeah, and violations are adjudicated by the President, but by the Courts.

Anonymous said...

***I think "Military Justice wonk" should be a bullet in my next fitrep.***

Given the selection rates, you could likely have 'Picks own boogers and eats them' and still get promoted.

MILJUS Wonk II said...

Surely COL Pohl is not naive enough to rely upon a mere statute as his shield. Anyone who is naive enough to believe that will save him if the Administration chooses to destroy him has never been inside the Beltway.

I admire him for taking a stance. It lends credence to the integrity of the Commissions themselves. It could be earlier enough in the process that this is not necessarily the nuclear option yet - some commentators have suggested ways forward that allows both sides to save face. But, if the COL chooses to engage in brinksmanship with the President, he needs to decide if this is the beachhead he wants to die upon. IMHO, he's made his point, but now maybe he should ask himself if he can do more long-term good by staying in a viable position in the Commission process.

Anonymous said...

MJW2: Isn't that type of political calculation exactly what we don't want from a judge -- even an Article 1 judge?

Shouldn't he just enforce the Congressionally-enacted provisions of the MCA?

Anonymous said...

Look, pal- (just wated to try that out- I like it)COL Pohl is a very senior O-6, who has been on the bench for quite awhile and who could retire whenever he wants to. What, exactly should he be afraid of?? He is making decsions based upon his interpretation of the law, that's what Judges do, and good on him. If the adminisstration is unhappy they can withdraw and dismiss. same as in any other case. I am really worrried that folks outthere seem to think that an MJ should take political factors into consideration- while not quite a "bullet proof" as a fed DCT judge- this guy is darn close.

Dew_Process said...

Hey pals [nah, that doesn't work, too much like "pay pal" spam....] anyway,

Perhaps the learned Judge was thinking ahead, headline: "Military Judge Halts GTMO Commissions!" Why should he shoulder this?

As someone noted, the SecDef's lawyers and for that matter, the Legal Advisor to the CA [is she gone yet?] tried to dump this on the Judge and he obviously wasn't having any part of it.

Anonymous said...

http://www.latimes.com/news/printedition/asection/la-na-guantanamo-judge30-2009jan30,0,4747376.story

Anonymous said...

Listen pal (this is now my standard greeting),

I already tried "Picks own boogers and eats them" on my fitrep and I still didn't get promoted. WTF?

MJW1

Mike "No Man" Navarre said...

Ahhh yes, the comment %$#* storm ensued. To address a few things:

Anon, Jan 29, 05:18:00 PM EST: The title of the post was not meant to be editorial, but, rather a play on words. Sorry if you didn't get the humor. Blogging and humor don't always go hand in hand.

Old Judge, Jan 29, 07:03:00 PM EST: Agreed I took a little liberty there and that should probably say something about being able to make arguments about jeopardy attaching. Thanks for keeping us honest, keep posting and try non-anonymity. I find it refreshingly liberating.

ED at Thu Jan 29, 08:34:00 PM EST: While hte First Amendment may recognize a public figure exception, this ain't a public forum. Thank you and please post again without the ad hominem attacks. I did the same thing on an attack about GW Bush about 6 months ago.

Anonymous said...

All these comments on the process, and not one comment on whether or not, or how, the man that planned the bombing of the COLE and the murder of American Servicemen should be punished. Think about that. The defense in that case is not disputing that he did it, just whining about the process by which we recognize that fact.

Anonymous said...

Anon 0845: Please tell us you are not a lawyer. You cannot be a lawyer if you do not understand that a trial is not about a just outcome, it is about a just process. Having a just process is more important that punishing someone who is guilty, but it cannot be proven that they are guilty.

brian mizer said...

For better or worse, process has been interfering with summary adjudications of guilt and executions in this country with some success since 1789. As for the silence of the defense, it is generally considered to be unethical for a defense attorney to comment on the facts of a case even when the government has been declaring that your client is guilty for nine years. But do not confuse silence with an acceptance of guilt.

Anonymous said...

No Man (look pal),

Or should I call you "mo Man." Anyway I just wanted to say that your are more of a WONK than about 90% of active MJ attorneys.

MJW1

Mike "No Man" Navarre said...

MJWI:

Not sure if that was meant as a compliment, insult, sarcasm, or other. I am taking it as a compliment considering the other Mil Jus brain power on this blog---probably now warranted in light of the MilJus eggheadedness of the Contributor list, but I'll take it.

Anonymous said...

No Man,

MJ Wonk is now a badge of honor, so of course it was a compliment.

John O'Connor said...

Listen pal, Navarre's a wonker all right.

Anonymous said...

Mr. Mizer, surely you must agree that a claim that factual innocence is a morally and qualitatively different claim than a claim that "the process by which we legally determine factually undisputed issues is unfair."

Anonymous said...

I didn't post either of the comments about which I am about to refer, but I'm getting tired of reading "Please tell me your not a lawyer" for anyone who comments that some of the techinical process has been elevated over the actual guilt or innocence of an accused. I respect the Constitution as much as the next guy, but observations like the one previously posted are valid and should be given more respect than taking the "you can't be a lawyer" pot shot. Most of you suscribe that all attorney's job (TC and DC) is to do justice, and maybe the result sometimes is equated to justice.

Anonymous said...

a lawyer should know the difference between your and you're.

brian mizer said...

ANON 8:22: I am not certain from where your quotation regarding undisputed facts comes, but the "technical process" is how we determine guilt or innocence. Very few cases are uncontested, and Mr. al Nashiri's case does not appear to be one of them. At his CSRT he stated that he confessed to acts of terrorism under torture. In fact our government has acknowledged that he was water boarded, and we have prosecuted as war criminals Japanese officers and non commissioned officers for torturing American POW's for using that method of interrogation.

A military jury may ultimately convict Mr. al Nashiri, but only after a military judge determines what evidence they will hear. Determining whether a U.S. court will admit evidence derived by torture, whether that court has jurisdiction over the accused and the offense, and whether the tribunal comports with domestic and international law may appear to be technical issues. But it is only after these technical issues are resolved that any court can make a determination of guilt or innocence. The process at GTMO is not fair, but even there an accused is innocent until proven guilty after some form of process.

Anonymous said...

Anon. 8:21

A lawyer should know that a sentence begins with a capital letter. I guess we'll marginalize your comment to the degree you did to the previous post.

Lighten up, Francis.

Anonymous said...

Couple final comments. Anyone even vaguely familiar with online commentary should have expected this issue to generate interest outside the military community. Add in the fact that your topic was styled provocatively, and the ensuing food fight was to be expected much the same as you see at most blogs or the comments section to stories at major newspapers.

There were a couple of ways to accomplish what the administration wanted to do. They chose the option which provided them the greatest flexibility, but under estimated the risk that by asking, they allowed for the possibility that the answer mihght be no. Before the looney tunes get all cranked up again, I'm referring to the prosecutors asking for a delay, rather than the Convening Authority withdrawing charges.

Finally, didn't here much critical out of the President, or any of his surrogates this weekend regarding Judge Pohl. The liberal blogosphere worked itself into a lather, but what did you expect.

Gary Swenchonis said...

Our family was happy to see someone stand up for our murdered son and his 16 mates. Its long overdue. I am sure that the ACLU and their liberal supporters will find a way to stop justice again, and to free these killers in the long run. They have already freed other Yemenis who have go right back to Al-Qaeda. But then again two of our sons killers are walking around free in yemen with 5 million dollar rewards on their heads. And we are still sending more terrorists back to them. Its insane.

Dew_Process said...

Mr. Swenchonis:
I understand your grief and anger - anyone who has served in the military has lost friends, relatives and loved ones.

But, your son and his shipmates, wore a uniform and took an oath to "support and defend the Constitution from all enemies foreign and domestic," the very same oath practically, that all lawyers must take.

This is not about the "liberal ACLU" [which by the way, is not political], but rather prosecuting people accused of crimes in a fundamentally fair way that whatever the verdict (and if appropriate, sentece) is, that such will withstand judicial and constitutional scrutiny by the Courts.

The Military Commissions Act of 2006 is indeed the "law," but it is a deeply flawed piece of legislation [part of which has been declared unconstitutional].

The issue is not setting "terrorists" free, but rather, if there is credible and more importantly, "admissible" evidence justifying prosecution, what is the proper legal forum for prosecution? The reason for the delay request was not to set anyone free, but to determine whether or not a) those charged should be tried in federal court, like 99% of the other alleged terrorists; b) tried by a General Court-Martial; or c) if the MCA should be amended to make it "legal" in the context of complying with minimum constitutional and Geneva Convention requirements.

No one wants to stop justice as you suggest - all of us are for that. We just want to insure, that the process is fair, yes, something denied to you, your son and your family unfortunately, but something since the time of John Adams defending the British Soldiers in Boston, has been a part of our legal system and legal profession.

But your frustration might be better focused on those who allowed these prosecutions to get so screwed up, the illegal use of torture, etc. Had the process worked the way that the "military" had always planned it in accordance with the Geneva Conventions, we probably would not be having this unpleasant discourse.

I hope you understand, but if not, you still have my sympathies.

Anonymous said...

Dew Process,

WOW, just WOW! You have some set of cajones to take that condescending tone with a grieving father!

And, you are really just out for justice as long as the process is fair? That's what you said, right? So, as soon as the process "gets fair," you're gonna plead your client guilty to the charges, b/c he's factually guilty, right? Justice?...You have no idea what that term means...

Anonymous said...

Dew Process, I think you let your politics get in the way of being polite.

The man's concern is possible and under these circumstances did not deserve to have the standard law school belittiling response.

Anonymous said...

Dew:

One word, inappropriate.

Dew_Process said...

Opinions . . .

Have you been to his website? My response was quite measured.

A fair "process" might induce guilty pleas - but that's never been the standard for pleading not guilty, which last I looked, remained a Constitutional right.

Anonymous said...

Dew it's a shame you feel you have to be right at all costs at all times. Think your tirade on the victim's family change their minds? Do you think you swayed anyone who was of the opinion commissions are correct? You only managed to do what many lawyers, regardless of experience do, say the inappropriate thing and then try to justify it. Your comment was just plain petty and enlightened no one who knows what the law is. And you are so correct about opinions...yours just lost significant credibility in my personal opinion.