7/21 Session: A “Despicable” and “Perverse” Motion for Recusal, and a Possibly Toxic Courtroom

Thursday’s open session of the trial of five men accused of plotting 9/11 begins with a testy exchange between Judge Pohl and and one of the accused, Walid Bin Attash, who refuses several instructions to remain quiet and seated. It seems Bin Attash does not want his lawyers at his table (for all the reasons enumerated in the last open hearing), telling Judge Pohl that he is happy to sit, but that he has to understand, “you have to move them first.” Pohl isn’t amused with this morning’s sideshow, telling Bin Attash, “No, you don’t understand. I run this courtroom, not you.”

And we're off to another great start here at Guantananmo.

A few more rounds with Bin Attash and Judge Pohl eventually gives up, ordering the guards to escort Bin Attash back to his holding cell. After ensuring that Bin Attash’s “disruptive” behavior is memorialized on the transcript, Judge Pohl finally is able to call the Commission to order.

Attorneys for the 9/11 defendants are present, along with General Martins and the rest of the prosecution team. Defendants Ali Abdul Aziz Ali and Mustafa al Hawsawi have voluntarily waived their right to be present, but may decide to attend in the afternoon. If that happens, they can tell their guards and show up to the proceedings late. However, Judge Pohl will continue the proceedings in their absence, and won’t “let the commission’s schedule be dictated by a change of mind.”

The proceedings now turn to the subject of Appellate Exhibit (AE) 425, Khalid Sheikh Mohammed’s controversial motion for the recusal of Judge Pohl and the entire prosecution team. AE 425 argues that recusal is warranted because Judge Pohl improperly “colluded” with the government by approving the destruction of classified evidence without the defense’s knowledge. The evidence at issue concerns the defunct ‘black site’ interrogation program, in which the CIA allegedly tortured the defendants following the 9/11 attacks. In the defense’s view, this destroyed evidence could have “take[n] on huge significance” upon conviction, since evidence that the defendants were tortured bears on whether they should be sentenced to death.

Before getting to the merits of AE 425, the parties must first address the threshold issue of whether Judge Pohl is qualified to rule on his own recusal. Mohammed’s attorney, David Nevin, begins by noting that the Commission’s rules provide that judges should disqualify themselves in any proceeding “in which [their] impartiality might reasonably be questioned.” According to Nevin, that condition is met here. Judge Pohl approved the prosecution’s request to destroy the secret evidence and replace it with unclassified substitutes, apparently without ever seeing the original evidence. To Nevin, this means that Judge Pohl essentially substituted the prosecution’s legal judgments for his own.

Additionally, Nevin argues that the government’s destruction of evidence was contrary to a preservation order from Judge Pohl that was still on the court’s docket at the time of the destruction. Because of the order, the defense never had notice of the potential destruction or an opportunity to discover and contest it, and only learned about the destroyed evidence more than a year after the fact. According to Nevin, these events give Judge Pohl a personal stake in the outcome of AE 425, since he was deeply involved in either the intentional or inadvertent misleading of the defense. Under the circumstances, Nevin believes “it is time for a different approach to be taken now,” and that Judge Pohl should recuse himself from the qualification decision.

Recognizing the personal nature of his motion, Nevin starts to observe that “it isn’t particularly pleasant” for him to be questioning Judge Pohl’s impartiality. But before he can continue, Judge Pohl interrupts:

Mr. Nevin, I take every motion filed in good faith. And the day that my decisions are not being criticized by at least fifty percent of the participants is the day I probably won’t be a judge anymore, so I take none of this personally.

Judge Pohl now asks the other defense attorneys if they have anything to add in support of Nevins’s motion.

Cheryl Bormann, counsel for Bin Attash, notes her agreement with the substance of the motion, and her view that “the person who was part of the destruction . . . of evidence probably is not the best person to sit in judgment of that.” James Harrington, for Binalshibh, characterizes the situation as one where “there’s a bit of a smell or a bit of an odor to it,” but that “the odor can be put out” by having another judge rule on the recusal motion. Attorney James Connell adds his view that until more information is available, it is not possible for him to take a position on whether Judge Pohl’s disqualification is warranted.

Now the prosecution team has a chance to respond. Robert Swann begins by noting that Mr. Nevin’s AE 425 motion is full of deductions, but “deduction is the craft of Sherlock Holmes, and . . . Nevin is not Sherlock Holmes in this instance.” Swann next takes an aggressive stance towards the defense team, characterizing their “motion as “despicable,” “perverse,” and a “not so [subtle] accusation of wrongdoing or cheating” by a distinguished military judge.

In the government’s view, the request to Judge Pohl to destroy the secret evidence was entirely appropriate under the Military Commissions Act and relevant discovery rules. Swann further notes that the defense received adequate substitute evidence, and Judge Pohl’s ex parte ruling to that effect was fully documented for purposes of appellate review. Swann argues that the defense “completely ignores” any reference to the commission’s evidence rules and case law interpreting related provisions of the Classified Information Procedures Act. The applicable law clearly authorized Judge Pohl to approve, ex parte, the use of substitute evidence providing “the same ability to make a defense as would discovery or access to the classified information.” And even if Judge Pohl’s ruling on that issue was incorrect, that hardly constitutes grounds for recusal, given the Supreme Court’s instruction that an adverse judicial ruling “almost never constitutes a basis of bias or recusal.” Swann methodically covers the relevant authorities on this issue, concluding that Judge Pohl “did nothing wrong.” He also predicts that when the appeals court inevitably reviews Judge Pohl’s decision to use unclassified substitute evidence, and the manner in which he arrived at that decision, the court will find his rulings “more than adequate.”

Judge Pohl turns back to Nevin, who notes that the government’s response said nothing about the defense’s reliance on the preservation order, nothing about the destruction of evidence without giving notice to the defense, and nothing about the fact that Judge Pohl had at least some role in causing those events. Nevin also counters Swann’s accusatory rhetoric, arguing that what was actually “despicable” was the prosecution’s destruction of evidence without giving notice to the defense.

After a recess for lunch, the Commission reconvenes at 2:32 PM. Judge Pohl has arrived at his decision regarding whether he will disqualify himself from ruling on AE 425:

The issue before me as to whether or not I need to detail another judge to hear AE 425, after considering the pleadings and reading the argument, that motion is denied. . . . Also just to put both sides on notice that if you wish. . . to have voir dire of me, I will permit it, assuming it’s relevant, but if it may touch classified information, we have to discuss it [in classified session.]”

His ruling comes without any further elaboration. The attorneys ask a few additional questions about the issue of voir dire, and move on.

The next issue for discussion is AE 426, a motion from defense counsel Matthew Schwartz. Schwartz begins by quoting an excerpt from a February 2016 report from the Navy and Marine Corps Public Health Center: “At this time, the potential cancer risk and noncancer health effects associated with Camp Justice and any final conclusions and resulting risk management actions cannot be determined.” (For context, the military apparently built Camp Justice, the location of the Military Commission, near an abandoned airfield where the Navy had previously dumped fuel and toxic chemicals. A whistleblower complaint last year indicated that several former residents of Camp Justice had contracted cancer, prompting the Navy to investigate and publish the report from which Schwartz is quoting.)

In AE 426, Schwartz seeks government funding for an expert to independently assess the conditions at Camp Justice. Schwartz’s motion also requests the raw data from the Navy investigation, which the expert would need to conduct his assessment. Judge Pohl seeks greater clarity regarding the details of what the expert would actually do, with questions indicating that he regards the motion with skepticism. Schwartz concedes that it is “highly unusual [to litigate resources] for a toxicologist to determine the safety of the courtroom.” However, Schwartz points out that if a bomb was sitting under the podium in front of him, “there’s no way that the judge couldn’t do something about it.”

Schwartz next outlines how the Navy responded to the whistleblower complaint by conducting walkthrough examinations of Camp Justice in August 2015. The government collected samples during those walkthroughs, and later subjected the samples to testing and analysis. The raw data resulting from this effort informed the conclusions in the Navy’s report, but the data itself was never released publicly.

Judge Pohl interjects, asking what Schwartz ultimately wants to achieve by obtaining an assessment from an independent expert. If the government maintains that the camp is safe, it doesn’t seem plausible that the 9/11 trial could be delayed or called off simply because of an expert report about toxicity. Judge Pohl also expresses his concern about getting sucked into a “morass of environmental law,” and notes that he is not prepared to turn the 9/11 trial into a pollution lawsuit.

In response, Schwartz argues that military judges routinely have to deal with esoteric or unfamiliar issues. For instance, the 9/11 trial will almost certainly include expert testimony about torture, mental health, and international law. Judge Pohl concedes this is true, but counters by asking Schwartz if there is any precedent for a court addressing this specific type of environmental safety issue. Schwartz says that he looked for analogous cases, but came up short:

Your honor, I looked for cases where a temporary structure was set up on an abandoned airfield that had been subject to fuel spills and all sorts of other chemicals and then put it into use for a court-martial or a trial for the next, you know, five to fifteen years. No, I didn’t come across that. And I would concede, this is weird. This is an odd motion.

However, Schwartz points to several facts that support his position. He refers to the Navy’s recent investigation, in which the government learned that a certain part of Camp Justice had unsafe levels of formaldehyde. Despite this discovery, the government still permitted members of the defense team to stay there for more than five weeks. Schwartz also objects to the Navy’s conclusion that the arsenic levels at Camp Justice are lower than typical background concentrations in Florida. A quick Google search on this issue reveals several major flaws in the Navy’s analysis. Schwartz then cites to a particularly embarrassing incident from 2012, in which the government disputed the defense team’s complaints about asbestos at Camp Justice. The defense subsequently discovered that a technician had been pressured to fabricate his asbestos report at the direction of the Navy Captain in charge of Camp Justice at the time.

Nevin and Ruiz also weigh in, expressing concerns that the uncertainty regarding whether Camp Justice is safe has affected their ability to defend their clients. The safety concerns create a potential conflict of interest for the attorneys, who must weigh the health of their team members against the defense’s requirement to have adequate personnel support at Camp Justice. For his part, Harrington adds that neither he nor his subordinates trust the Navy anymore, and that no one he knows is confident that Camp Justice is safe.

Judge Pohl now looks for a response from the prosecution team. General Martins argues that under applicable case law, the Navy’s assessment of Camp Justice is entitled to a “presumption of regularity.” Overcoming the presumption requires clear evidence that the Navy is not handling the investigation at Camp Justice competently, impartially, and professionally. General Martins also notes that the defendants cannot receive expert consultant funding unless they establish a reasonable probability that the expert would be helpful. Furthermore, the defendants must also show that the denial of the expert “would result in a fundamentally unfair trial.” In his view, the defense’s allegations cannot meet these doctrinal burdens, and Schwartz’s motion therefore fails to present a justiciable issue.

Judge Pohl takes both sets of arguments under advisement, and promises to issue a ruling “in due course.” He then recesses the Commission until Friday’s closed session, when the parties will discuss the use of classified information under Military Commission Rule 505(h).