USS Cole case defense wants Guantánamo judge to recuse himself

The motion was under seal this weekend, but the lawyers argue he has a career motive to keep the case alive, as well as no capital trial experience

06/16/2012 5:00 AM

02/09/2014 10:10 PM

Defense lawyers have filed a sealed motion at the Guantánamo war court that argues the chief judge has a career incentive to keep the USS Cole bombing case alive, no experience in capital cases and should remove himself.

The Pentagon disclosed the existence of the filing on Friday, listing it on the military commissions docket under the title: “Motion to Disqualify or in the Alternative Requesting the Recusal of Col. James L. Pohl as Military Judge in this Case.”

Pohl, chief of the war court judiciary, has a contract that’s up for renewal each year because he faced mandatory retirement from the U.S. Army in 2010, one reason he’s not qualified to serve, the lawyers argue.

“The judge has a financial incentive to keep the cases going,” said Richard Kammen, the Indianapolis-based, Pentagon-paid criminal defense counsel for Abd al Rahim al Nashiri.

Nashiri is facing the first death-penalty trial at a Guantánamo military commission, for allegedly orchestrating the October 2000 attack on the Navy destroyer off Yemen. Seventeen U.S. sailors died in the attack.

The Guantánamo cases need “a judge who is truly independent of the bureaucracy,” said Kammen, describing the motion. “Given the financial situation there is a perception that Judge Pohl cannot and does not have that independence.”

The motion can be sealed for up to 15 business days under the Pentagon’s rules — time enough to let intelligence agents black out information that they consider a breech of national security or a violation of certain government employees’ privacy.

Pohl has defended his ability to hear the national security cases impartially under questioning by defense lawyers at Guantánamo.

“Judges come with their life experiences. However, their role, in my view, is to apply the law as it is, regardless of personal feelings,” Pohl said May 5.

Pohl, 61, earns $10,557 a month. He is the only military judge hearing cases at Guantánamo because he’s assigned himself to all three of them — the Cole case, the complex five-man prosecution of the five alleged Sept. 11 conspirators and a guilty plea by Majid Khan, a U.S.-educated captive at Guantánamo who pleaded guilty to supporting al Qaida and turned government witnesses.

All three cases involve complex national security issues because the men were held for years by the CIA before President George W. Bush had them brought to Guantánamo for trial in 2006.

Pohl was supposed to retire on Sept. 30, 2010 under the Defense Department’s mandatory retirement rule for colonels who reach 30 years in the Army. Instead, the colonel was discharged that day, and rehired the next by the Army on what has become two year-long extensions. He said he anticipated annual extensions “for the foreseeable future until these cases are done.”

Pohl came to the Guantánamo cases after presiding at the courts martial of U.S. soldiers who abused Arab captives at the Abu Ghraib prison in Iraq. In the Nashiri case, lawyers for the Saudi-born captive allege he was tortured in U.S. custody, and note that the CIA’s own inspector general’s report illustrates it. Nashiri was waterboarded and had a revving power drill held to his hooded head, among other techniques, during interrogations at secret CIA overseas prisons.

In their filing, Kammen said, the Nashiri defense lawyers argue that Pohl choked off defense lawyers’ ability to go up the chain of command into the political leadership when he presided at the Abu Ghraib trial. Pohl at the time entertained motions by the soldiers’ lawyers to question people like Defense Secretary Donald Rumsfeld but denied the request. He said they didn’t make a compelling argument to merit subpoenas of senior Pentagon officials.

Nashiri’s lawyer also said they are asking Pohl to remove himself from the case because he has assigned himself to all cases of former CIA captives at the war court. “In effect Judge Pohl has designated himself as the only judge for death penalty cases at Guantánamo,” said Kammen, “which in our view is highly inappropriate. Judge Pohl has no capital experience.”

Pohl has said in questioning at court that while there’s a pool of other military judges who could hear cases at the Guantánamo military commissions, the others have full case loads presiding at courts martial in the various services.

As a chief judge, and in retirement recall status, Pohl said May 5 that he has just three non-Guantánamo cases he’s handling.

Plus, death penalty trials are rare in the U.S. military and, like Pohl, none of the military judges in the war court pool have presided at a capital trial.

“No one has more experience than I do as a military judge currently on active duty,” Pohl told a defense lawyer who questioned his qualifications at the May 5 arraignment in the 9/11 trial.

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