8/4 Motions Hearing #3: Which Judges Get to Decide What

Not too long after lunch’s conclusion, court and counsel confront the question: will Judge Spath recuse himself from service as presiding judge, having served on the case for only a few weeks? Nope. Explaining his ruling from the bench, Judge Spath says that a disinterested person wouldn’t see a real or perceived problem with his continued participation here---notwithstanding his prior service as prosecutor in Witt, the ongoing appeal in that case, and CDR Mizer’s role in the appeal. Recusals dealt with, we move to the substance, beginning with defense motion AE305. In it, the defense essentially asks to revisit the unique circumstances of Judge Pohl’s departure from the case. In doing so, Judge Pohl reserved to himself the power to resolve, after his departure, certain outstanding but ripe motions, while leaving other ones to Judge Vance. Al-Nashiri’s lawyers immediately cried foul, and asked to re-open ripe, undecided motions that Judge Pohl took with him, notwithstanding his replacement by Judge Vance. Army Maj. Tom Hurley stands for Al-Nashiri and asks Judge Vance to wipe away any residual authority on Judge Pohl’s part. There’s one military judge in every proceeding, he argues, and one judge only---and that is you, Judge Vance. But we don’t do two judges in one case. As evidence, the defense lawyer observes that the Military Commissions Act and implementing rules uniformly speak of “the military judge,” who gets to rule on interlocutory questions, the admissibility of evidence, and the like. The use of the singular hints that only one judge gets assigned to a given case at a time.  Policy seemingly is on Hurley’s side, too: what wackadoodle system tolerates an unaccountable party (Judge Pohl) and an accountable party (Judge Vance) making decisions simultaneously?   Here the military judge suggests some agreement with Hurley in principle, while also doubting the propriety of the relief sought: the defense wants re-argument of legacy motions before Judge Vance, not just decision by Judge Vance instead of by Judge Pohl. Hurley rejoins that the facts and law might have changed between the time of argument and the present, thus warranting a new presentation to Judge Vance.  Consider, for example, Judge Pohl’s prior decision finding live testimony from Al-Nashiri’s torture expert to be unnecessary; it might well be now.  Hurley adds that some of the issues in play are of the utmost significance. One motion concerns the power to execute a capital defendant who has been denied all access to relevant classified evidence.  The lawyer concludes by emphasizing the utter lack of precedent for preserving Judge Pohl’s decisional authority; doesn’t that imply unlawful influence, something the Military Commissions Act explicitly forbids?  A few words more---among other things, about the logistical burden imposed by the two-judges-for-a-while setup---and Hurley finishes. The government, it seems, is agnostic on AE305---or, at least, that’s what prosecutor Lt. Bryan Davis suggests in his rebuttal argument. Provided we move to trial and protect the rights of the accused, he says, the prosecution isn’t especially invested in a one-judge or a limited-time, two-judge setup. This notwithstanding, Davis says he does dispute the defense’s suggestion that Judge Pohl has “recused” himself from the case; without that, argues the lawyer, there is no lapse Judge Pohl’s continuing authority under military rules.  The use of the singular tense in the MCA is not at all inconsistent with that position, either. Next Davis adds that Judge Pohl isn’t insinuating himself into the case writ large, but instead aims to resolve only a few legacy items. Judge Spath: could I issue an order countermanding one of Judge Pohl’s rulings on those items?  Yes is Davis’s answer.  So isn’t it more efficient for me, then, to issue any legacy orders in the first instance, rather than await Judge Pohl’s rulings, and then review them later anyway?  Seemingly all roads lead to Rome, in Judge Spath’s view; he'll be deciding the motions one way or the other.  Mention of this returns Davis to his opening profession of ambivalence about the way forward---though Davis observes that re-argument of already argued motions isn’t exactly an economical modus operandi, either. Finally the prosecutor throws water on the notion of “unlawful influence" here.  We see no supervisory or like command relationship in play, he argues---as we must, under analogous unlawful command influence rulings from the courts martial context.  And at any rate, there’s no prejudice one way or the other to Al-Nashiri. Back to Hurley, who rises in reply and observes that Judge Pohl is not detailed to this case; he’s undetailed himself, thus dissolving any legal say-so over the proceedings and clearing the way for Judge Spath. The court interrupts, and auditions a procedure whereby Judge Pohl decides his list of holdover motions initially, subject to any motions to reconsider brought before Judge Spath. Appeals courts rule on dry records all the time; couldn’t Judge Spath do the same?  Hurley doesn’t like the idea, instead arguing for evidence and argument to be presented to the case’s only presiding judge: Judge Spath.  The defense lawyer ends up by disputing Davis's claim that unlawful influence requires a showing of prejudice.  The latter says a few words in surreply, then Hurley too, both lawyers essentially rehashing the debates over what’s fastest and fairest, given the case's temporarily quite odd procedural posture.  Then AE305 lands in the military judge’s inbox---and we move to other matters.