He gave a restraining order to the president and didnt bat an eyelash, said Graveline, who called it unprecedented and seemed genuinely dumbfounded by the order even now. It wasnt like a chest thumping thing for him. He said, This is a crime scene and were 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 Commands 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 werent 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, hed reconsider the request not unlike what hes 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, whod 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 Pohls motives.
Anthony D. Romero, executive director of the American Civil Liberties Union, blamed Bush administration holdouts for exploiting ambiguities in President Obamas executive order as a strategy to undercut the presidents 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 judges penchant for noting the political and then arguing its 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. Hes announced that hell accompany Nashiri prosecutors and defense lawyers to Yemen this summer, as deposition officer overseeing sworn testimony from Yemenis who cant be subpoenaed to the war court in Cuba.
Location does not matter to Judge Pohl, said Graveline. I know hes gone to Afghanistan, hes gone to Iraq in that sense, hes very Army. Hes held court at a forward operating base in Baghdads 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 weeks hearing, the Pentagon is bringing up to 60 reporters.
Pohls made clear from the bench that hes a proponent of transparency but will close the court if the rules require it.
I dont think he worries about the media scrutiny or the military scrutiny, said Hansen. But he doesnt want to make a bad ruling or a rash ruling.
Plus, said Hansen. Hes 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 thats military law and U.S. law and he follows the law. Theres 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 cant have referees that vacillate.