4/22 Motions Session #1: In Which Recusal is Revisited

It’s Al-Nashiri time, y’all.  The military judge, Army Col. James L. Pohl, calls the hearing to order.  The accused is here, along with his lawyers, save two: Capt. Daphne Jackson and Nancy Hollander (whose own role in the case is itself the subject of litigation).  Judge Pohl advises Al-Nashiri of his right to be present, and the consequences that might flow from a waiver of that right.  The accused says he understands this.

And then the fun commences with AE84E---a renewed defense bid to disqualify Judge Pohl.  (The first recuse-yourself-judge motion was rejected by the court, but now Al-Nashiri’s lawyers have re-filed it, claiming that new motion-supporting facts have come to light.)  The court has a conflict, according to the defense, stemming from his joint detailing to both “high value” commission cases at Guantanamo; from his denial of defense requests, in the Abu Ghraib cases, to substantiate their claim that, in allegedly abusing Iraqi prisoners, the accused in those cases acted on orders from higher-ranking officials in the Department of Defense; and from the fact that Judge Pohl was assigned to this case by the very entity prosecuting Al-Nashiri.

Two additional filings bear on the request's renewal, which Al-Nashiri Learned Counsel Rick Kammen overviews: one is a motion (AE84H) to compel witness production, and another (AE266) regards other governmental agencies’ contact with the commission.  And those, along with AE84 itself, ought to be resolved not by Judge Pohl, but by another military judge detailed specially for that purpose.  At any rate, argues Kammen, under federal and military law, when there’s a demonstrated conflict, the presumption is that recusal is appropriate.  All the more so where, as here, the military judge also has an actual conflict. The lawyer then highlights a number of important unknowns, which will be the subject, presumably, of his discovery requests: the dates of Judge Pohl’s fitness evaluations, the circumstances of his appointment, people Judge Pohl conferred with at the time, his interactions with defense officials before each re-appointment (including the Convening Authority) and so on.

Kammen adds that, under the 2006 Military Commissions Act, it isn’t even clear that the Convening Authority (then Susan Crawford) could appoint Judge Pohl; the regulations vesting appointment authority in the Convening Authority contravene the MCA’s text, and were not signed by the Secretary of Defense, as required by statute---but instead by a Deputy Secretary.  Similar problems inhered in the appointment of Crawford’s successor, Vice Adm. Bruce MacDonald.  The latter ought to be called to testify, too, given the circumstances surrounding Judge Pohl’s re-appointment---and a letter MacDonald apparently wrote, which spoke approvingly of Judge Pohl. The implication is clear: the guy referring capital charges seemed to like Judge Pohl’s participation in the case, and thus to hint at the latter’s impartiality.

Discovery out of the way, the lawyer says a few words about substance. Judges must appear to be conflict-free, he argues; like “Caesar’s wife.”  But Judge Pohl’s appointment looks different.  The remedy is thus recusal and assignment of a different judge.  Kammen boils his merits argument down to a series of questions: did the Convening Authority have the power, under the circumstances alleged, to appoint Judge Pohl, and to re-appoint him? (No, in light of, among other things, the MCA’s plain language, and the Supreme Court’s decision in Weiss v. United States.) Would a different judge hear these allegations in the federal system?  (Yes.)  Should we explore further into Judge Pohl’s assignment to this case?  (You betcha, thus his discovery motion.)   All this must be aired out, given that prosecutors didn’t advise Kammen and company of facts relevant to this motion when defense attorneys initially questioned the military judge about his fitness to preside over the case.  There’s new information in play now, according to Kammen---the MacDonald letter in particular.

The lawyer develops these arguments further---and at some length---and sits down. But before he does, Kammen cites Yale scholar Eugene Fidell.  The latter, Kammen argues, has found the commissions appointment scheme to conflict with international standards.  The attorney also refers to Fidell’s recent remark in the New York Times, to the effect that intelligence agencies truly control what happens in the Guantanamo courtroom.  All this goes to the perception problem he described earlier---and warrants granting the renewed AE84.

Prosecutor CDR Andrea Lockhart says recusal is inappropriate and unnecessary.  She stoutly denies that the prosecution kept any relevant information from the defense bearing on Judge Pohl’s appointment: the most significant document (presumably MacDonald’s letter) at issue is, in fact, a standard form, one that wasn’t in any event ever sought by the defense.  She adds that the item adds nothing new, and thus supplies no reason to change Judge Pohl’s prior decision regarding recusal.  The only new fact here goes to Judge Pohl’s “retired recall” status.  Well, that’s just not enough to overturn the prior ruling, which found no conflict.  And, Lockhart adds, the defense has no idea what its discovery witnesses would say, regarding the military judge’s continued role in the case. That, too, is insufficient: under commission rules, the defense must in each case proffer sought witness testimony, in order to establish relevance and necessity.  This whole affair, to Lockhart’s eye, has the feel of a systemic attack on the commissions---not a more particularized attack on Judge Pohl’s ongoing participation.  No surprise there, as the defense has shown no evidence at all of impropriety on Judge Pohl’s part.  She returns to counsel table.

Kammen delivers brief reply argument, beginning with the proffer issue: sometimes witnesses won’t talk to you, he says.  Well if not, then how can you proffer? The issue of course would go away if Kammen had unilateral subpoena power---which he doesn’t in this forum.  So he’s caught in a cute little bind: no proffer means no discovery; but the most important witnesses for this motion won’t speak to him, so as to permit a proffer.  At any rate, how could a letter, specifically calling for Judge Pohl’s appointment as Chief Judge and military judge on both capital commissions, amount to a “standard form,” as Lockhart claimed?  He's incredulous, adds that courts have batted away prosecutors’ attempts to classify documents like the MacDonald letter as administrative in character. Kammen also thinks Lockhart might well be right to characterize his challenge as “systemic;” but so what?  If the Convening Authority indeed has lacked power to appoint Judge Pohl from the get-go, then that issue needs to be resolved.  Kammen ends up by implying an appellate court’s likely reversal of a trial verdict, given the seeming importance of the Convening Authority’s input, in having Judge Pohl assigned.