Justice Department attorney Joanna Baltes countered that classified information would be discussed and therefore the captive couldn’t hear it — even though the title of the secret motion makes clear it’s about Nashiri’s own detention.
Nobody in court — neither the judge nor the lawyers — mentioned an objection filed by 14 media organizations including The Miami Herald to the closure or gave any explanation for it beyond the judge’s saying they needed to discuss if they could adopt “euphemisms” to hold at least some arguments in open court.
Pohl had originally set a hearing schedule through Friday, but all sides agreed to finish by Thursday night before the holy Muslim month of Ramadan starts.
The prosecution opposed the defense bid to disqualify the judge, who has never before presided at a death penalty case. At Guantánamo, he has assigned himself to all commissions cases of captives whom the CIA turned over to the military in 2006 after years in secret prisons. They total three cases involving seven defendants — alleged Sept. 11 mastermind Khalid Sheik Mohammed and four accused co-conspirators; Nashiri; and a guilty plea from Majid Khan, who agreed to turn government witness in consideration for eventual release.
There are no other active cases before the war court at Guantánamo. All of Pohl’s cases involve questions of national security and foreign relations and are being heard in a special security court that allows for a 40-second audio delay to spectators and a white noise option to muffle anything deemed a state secret.
The colonel ruled after a 15-minute break from arguments. A day earlier he agreed to a defense request in the 9/11 case to delay the next hearing by two weeks until after Ramadan. The prosecution had opposed that request.
In Nashiri, prosecutors argued that the judge has taken an oath and is by nature independent of senior or political influence. They dismissed a defense argument that Pohl had a financial incentive to keep the cases. The judge was retired from the Army two years ago but recalled the same day to serve as the chief of the Guantánamo judiciary at a colonel’s pay of $10,557 a month.
The Pentagon prosecutor said the pay was not of consequence because he’d get it as chief judge even if he had assigned other military judges to the trials. Plus, prosecutors argued that, as a retiree, Pohl would get 75 percent of his pay, anyway. Pohl said the prosecution brief was wrong. He’d be entitled to 80 percent of his pay in retirement, he said.
Pohl also refused to allow the defense Tuesday to question him about additional benefits he gets as a re-activated Army officer as well as other issues they sought to clarify for the record in their failed bid to get the judge to recuse himself.