GUANTANAMO

9/11 judge has handled tough cases before

 

The judge presiding over the trial of the five men accused of orchestrating the 9/11 attacks is a no-nonsense jurist who takes on the toughest cases himself.

 
U.S. Army military judge Col. James L. Pohl arrives for a pretrial hearing for U.S. Army Pfc. Lynndie England at Fort Hood, Texas, Thursday, July 7,  2005.
U.S. Army military judge Col. James L. Pohl arrives for a pretrial hearing for U.S. Army Pfc. Lynndie England at Fort Hood, Texas, Thursday, July 7, 2005.
LM OTERO / ASSOCIATED PRESS

crosenberg@miamiherald.com

When President George W. Bush proposed razing Iraq’s Abu Ghraib prison in 2004, this American Army judge declared it a crime scene and forbade its demolition. When five years later President Barack Obama asked the Guantánamo war court to freeze all proceedings, the same judge refused the brand-new commander-in-chief’s request.

He’s Col. James L. Pohl, who has appointed himself to preside at the war crimes trial of the five men accused of orchestrating the Sept. 11 attacks.

It’s not that Pohl is unaware of rank after three decades in the Army. It’s simply not relevant in this colonel’s court.

Here’s how he scolded a prosecutor when the prison commander, an admiral, was late for court to testify after lunch recess in January: “Witnesses should be waiting either in the trailer at the back or outside,” the judge bristled, “and I really don’t care what their rank is.”

A soldier since the ’80s and a judge since 2000, Pohl has had judicial oversight of some of the most notorious Army cases of the post-Sept. 11 era.

•  He presided at the trials of nine soldiers found guilty of abusing detainees at the Abu Ghraib prison in Iraq.

•  He decided that U.S. Army psychiatrist Maj. Nidal Hassan should get a death-penalty trial for the 2009 shooting spree that killed 13 soldiers and wounded dozens more at Fort Hood, Texas.

•  In September, however, he found the opposite at a show-cause hearing for Army Sgt. John Russell. Unlike Hassan, Pohl ruled, Russell had “an undisputed mental disease or defect” that made it “inappropriate” to pursue a capital case for allegedly killing five troops at the combat stress center at Iraq’s Camp Liberty in May 2009.

•  Pohl also presided at the so-called “mercy killing” trial of an Army captain, a tank commander, who killed a critically wounded insurgent in May 2004, and was captured on an aerial drone’s videocam doing it.

Now, at a moment when most 60-year-old colonels are retiring from service, Pohl is chief military commissions judge, and has chosen to take on two of the most high-profile trials of his career: the 9/11 trial, and the trial of a man who allegedly engineered al Qaida’s 2000 USS Cole bombing.

Each case seeks the death penalty. Each is to be heard by a military commission, the tribunals that Bush had created after Sept. 11 and Obama ordered reformed upon taking office.

Saturday, Pohl will face off for the first time with Khalid Sheik Mohammed, who bragged that he masterminded 9/11 for al Qaida — wading into the case that’s been a lightning rod for criticism that the court was created to cover up torture.

Serious about the law, but not himself

“All judges should be like him,” says Indiana Supreme Court Justice Steve David, a retired Army colonel.

Pohl “takes what he does very seriously but not himself. He is fair and firm with a great sense of humor and a keen mind. If I were prosecuting or defending, he would be a great choice for judge.”

He’s by far the most experienced military judge currently in the Army, adds retired Marine Lt. Col. Guy Womack, a veteran military defender of Pohl courts martial from the Green Zone in Iraq, Germany and the United States, notably the Abu Ghraib case.

There, Pohl caused a mini-stir by refusing a guilty plea by Pfc. Lynndie England, the soldier photographed with a detainee on a leash. At her hearing, another soldier testified that England was ordered to pose for that picture, casting doubt on her admission of conspiracy. Pohl ordered a trial. She was found guilty.

Womack also described Pohl as one of the military’s most methodical and careful crafters of judicial rulings to make sure they stand up to appellate scrutiny, a skill set he likely acquired in the early 1990s while working at the government appellate division in Falls Church, Va., defending Army convictions.

When he got the Abu Ghraib case, said Womack, Pohl kept “all of them, which is typical” — a practice Pohl has repeated at Guantánamo by handling all the trials of the former CIA captives.

Womack called Pohl’s judicial style “dictatorial,” and said the judge preferred to meet defense and prosecution attorneys in chambers, out of earshot of the public and off the record, before each day to map out how the session would proceed.

Of the 9/11 trial, said Womack, “Col. Pohl would be the judge of choice for this case either because he doesn’t want to be reversed, or because he wants to mean well. You need a strong judge; a weak judge would never get it done.”

At the same time, he has shunned the spotlight.

Pohl wouldn’t be interviewed for this profile.

He travels incognito, in jeans and polo shirt, no colonel’s uniform for him. And he has stood in line to check in for the war court charter flight from Andrews Air Force Base undetected by reporters, legal observers, enlisted troops, even some lawyers going to Guantánamo, too.

An ex-Army prosecutor calls him “ego-less.” David calls him “humble,” and, oddly for a man so private, “someone that could do those commercials for Dove soap for men. He is very comfortable in his skin!”

Omitted from Pohl’s terse court biography is that he was sworn in as a judge on May 19, 2000, after completing the Army’s “Military Judge Course” with perfect scores on his final exams and graded practical exercises. That makes him the longest serving judge currently in the U.S. military. His biography also does not mention that he’s been retained past his retirement date, Oct. 1, 2010, and serves in a special status that requires renewal each year.

At Guantánamo, it’s hard to spot him around the base, where he mostly splits his time between the court and his quarters. On a sticky evening in April, military lawyers donned crisp uniforms and civilians put on suits and ties to climb a hill to the old tribunal building and meet the judge in his chambers.

They found Pohl in jeans and loafers, no socks, and a pink sports shirt.

By gavel-down the next morning, he was in his Class Bs, the new Army uniform with a gold stripe down the trousers, topped by a black robe — commissions business attire.

Sometimes, you can see him at dinner in a corner booth at O’Kelly’s pub. But, unlike the lawyers and reporters, who mingle and make small talk, he keeps the company of his staff, and he doesn’t linger at the bar.

Judicial independence

Judge Pohl comes to the 9/11 case from the peculiar position of having been passed over for promotion to general and retained past retirement, meaning “he’s got nobody he has to please,” says retired Lt. Col. Victor M. Hansen, who spent 20 years as an Army lawyer and now teaches at New England Law School.

Hansen says Pohl has the judicial independence to throw out a case for insufficient evidence, no matter how high profile. “He would not bat an eye, and sleep like a baby that night.”

Guantánamo’s death penalty cases present Pohl with grave issues in a still-evolving system.

CIA torture is alleged — some of the accused were waterboarded, threatened at gunpoint, sleebp deprived, hung by their wrists, had their families threatened. A jury of U.S. military officers decides guilt or innocence, life or death. It’s Pohl’s job to decide what charges go to the jury and to make sure no evidence derived from abuse or worse is used at trial.

Pohl has yet to tip his hand on what he’ll do if he’s confronted with proof that U.S. agents tortured a captive. By international law, it’s a war crime.

He has told defense lawyers it’ll be their job to instruct him on how to regard the treatment, what rules apply, and it’ll be his job “to follow the law and the preferences given to me by counsel and as I interpret it.”

Hansen predicts that Pohl “will take the prosecution through the wringer” to make sure no “derivative evidence from coerced confessions comes in.”

Earlier in their careers, Hansen was an Army prosecutor who worked opposite Pohl, who was taking a turn as defense attorney, typical of the Army legal career track. Hansen predicts the judge will be “tough on both sides” at the 9/11 trial.

“He’s lived as a defense counsel in the Army, when you’ve got the whole prosecution against you. And so he’s very good on keeping the government’s feet to the fire.”

Lawyers who’ve watched Pohl for years say he sweats the details, and demands the same of those who come to his court.

Privacy, wry wit

Pohl’s an intensely private man.

Friends likewise declined to answer the most innocuous human interest questions. Not even what he does when Army plays Navy, a football rivalry that’s a rite.

Public records show that James Lancaster Pohl earns $10,557 a month plus a housing allowance. He turns 61 next month.

He has served a stint in Korea, at least five years in Germany and is now based at Fort Benning in Georgia, where he registered as a voter in September 2008.

He’s voted once since — on Nov. 4, 2008, the historic elections that put the first African American in the White House.

He’s a 1974 graduate of UCLA, where records show he got a bachelor of science degree in psychology. He went up the road to Malibu’s Pepperdine University to get his law degree in 1978, and was admitted to the California Bar after Thanksgiving that year.

Several friends mentioned his hilarious sense of humor, which you only glimpse at court.

Once, a defense attorney invoked the estimate that it costs $800,000 a year per Guantánamo detainee and called it “a monument to waste.”

Pohl retorted: “Let’s say it is robustly resourced.”

When a Saudi in his court pulled out a poster showing Obama’s pledge to close Guantánamo, the judge dryly asked the man’s attorney whether this should be marked as evidence.

“For as many big cases as he’s had, that he’s tried, the man really is ego-less,” said former Army Maj. Christopher Graveline, who prosecuted the Abu Ghraib case and left the military in 2006. “It’s never about him, it’s about doing the process and trying to reach a fair result.”

So when Pohl was holding hearings in Baghdad and President Bush remarked back home that the prison should be demolished, the judge ruled for defense attorneys that the place needed protection.

“He gave a restraining order to the president and didn’t bat an eyelash,” said Graveline, who called it unprecedented and seemed genuinely dumbfounded by the order even now. “It wasn’t like a chest thumping thing for him. He said, ‘This is a crime scene and we’re going to allow them to take a look at it.’ ”

In the same hearing Pohl ordered numerous officers in the military chain of command, notably the Central Command’s chief, Army Gen. John Abizaid, to undergo questioning by defense lawyers trying to make the case that the guards were following policy by posing detainees for humiliating photos. (They weren’t and all the soldiers were convicted.)

“I was shocked,” Graveline said. “I was a captain at the time. I had to go back and tell my boss!”

The judge drew the line, however, when lawyers asked to question Defense Secretary Donald Rumsfeld and Stephen Cambone, his undersecretary for intelligence.

Pohl ruled the defense had not drawn a clear enough line to the political hierarchy to merit a subpoena. But, he told them, if they could make a better case for it later, he’d reconsider the request — not unlike what he’s been telling defense lawyers in the USS Cole case when their motions fail.

It was his handling of the Cole case that confounded the freshly minted Obama administration.

Just hours in office, Obama sent word to the Pentagon that he was suspending the trials at Guantánamo to review all the cases.

Obama had campaigned on a promise to close the prison in Cuba, and prosecutors filed motions to delay the arraignment of Abd al Rahim al Nashiri, who’d been waterboarded by the CIA.

Bush-era lawyers approved death-penalty charges in the dwindling days of the administration, and served Nashiri on Christmas Eve. A statutory 30-day speedy trial clock was ticking.

And Pohl ruled against the new president.

“The Commission is bound by the law as it currently exists not as it may change in the future,” he wrote. A continuance, he added, would “not serve the interests of justice.”

The Pentagon had an out: It could withdraw the charges, without prejudice, and preserve the option to try Nashiri later. A Defense official ultimately did that. But not before a mini-maelstrom questioned Pohl’s motives.

Anthony D. Romero, executive director of the American Civil Liberties Union, blamed Bush administration holdouts for “exploiting ambiguities in President Obama’s executive order as a strategy to undercut the president’s unequivocal promise to shut down Guantánamo.” Former USS Cole commander Kirk S. Lippold countered that the judge had delivered “a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.”

An online bulletin board for the military law community posted the development with the headline, “Army Judge Pohl Sticks it to Obama Administration”

Lawyers who had worked with the judge weighed in, and disagreed.

Pohl had applied the law, as written, to the government motion and could not find a reason to grant it. “On its face, the request to delay the arraignment is not reasonable,” he had ruled.

Classic Pohl, it reflects the judge’s penchant for noting the political and then arguing it’s irrelevant.

At a hearing weeks after Obama was elected, but before he took office, Pohl announced the obvious:

“This court is aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings.” Meantime, he advised, everyone should stay focused “unless and until a competent authority tells us not to.”

Guantánamo has a court like no other. It gets turned off and on by a charter flight carrying staff, and follows its own rulebook, not the Uniform Code of Military Justice used to try American soldiers. In between court sessions, Pohl issues instructions by email. He’s announced that he’ll accompany Nashiri prosecutors and defense lawyers to Yemen this summer, as deposition officer overseeing sworn testimony from Yemenis who can’t be subpoenaed to the war court in Cuba.

“Location does not matter to Judge Pohl,” said Graveline. “I know he’s gone to Afghanistan, he’s gone to Iraq — in that sense, he’s very Army.” He’s held court at a forward operating base in Baghdad’s Sadr City, the mostly Shiite slum that often simmered with anti-American unrest.

Once, during an Abu Ghraib hearing, the courtroom building shook with the thud of insurgent mortars striking inside Camp Victory in Baghdad. Pohl told everyone “to stop in place” for a few moments; the attack over, he ordered court to resume.

For next week’s hearing, the Pentagon is bringing up to 60 reporters.

Pohl’s made clear from the bench that he’s a proponent of transparency but will close the court if the rules require it.

“I don’t think he worries about the media scrutiny or the military scrutiny,” said Hansen. “But he doesn’t want to make a bad ruling or a rash ruling.”

Plus, said Hansen. “He’s certainly not afraid to ruffle feathers, to call it like he sees it and not necessarily worry about the long-term consequences.”

At the end of the day, those who know him say, Pohl will play the role of referee at Guantánamo through the prism of three decades of service to the Army that honors judicial independence guided by what the rules created by Congress and the White House require.

Says Graveline, the Abu Ghraib prosecutor: “Judge Pohl knows what the law is — that’s military law and U.S. law — and he follows the law. There’s always evolving areas of law, but we try to analogize it to bedrock principles of justice, and it always goes back to, is this a fair process?”

Defense attorney Womack, who argued opposite Graveline, says that Pohl is capable of delivering that kind of justice. “He knows the law. He has a strong personality. And you can’t have referees that vacillate.”

Read more Guantánamo stories from the Miami Herald

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