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.

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