The chief war court judge Tuesday declined to disqualify himself from presiding at the USS Cole capital murder case, dismissing defense objections to his post-retirement status and choice to preside at all the former CIA captives’ trials at Guantánamo.
Army Col. James Pohl said he found no merit in the arguments of defense lawyers for Abd al Rahim al Nashiri that there was at the very least a perception of a conflict.
Pohl’s decision to keep the case is irreversible in this process, which provides no interlocutory appeal on the issue at the military commission that is seeking Nashiri’s execution as the alleged architect of the suicide bombing of the guided-missile destroyer USS Cole off Yemen on Oct. 12, 2000. Seventeen U.S. sailors died in the al-Qaida attack.
Defense attorneys spent the rest of the first day of a three-day hearing asking the judge to fund several consultants and additional legal staff for the death-penalty case — from a memory expert to one on handling national security evidence.
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Pohl did not rule immediately, unlike his swift decision to continue to preside over the Cole case himself.
Defense attorneys had sought an active-duty military judge whose contract is not up for annual review by the Department of the Army. The defense also said the process would benefit from a variety of judges making decisions beyond Pohl, a 32-year career Army officer with 12 years experience presiding at American soldiers’ courts martial. Pohl has described himself as “a process guy” who follows the rules of court.
But Nashiri defense attorney Richard Kammen argued that military commissions are so historic and new — tackling “completely unknown, untested, unheard issues” — the process would benefit from different rulings by different judges.
“If two judges disagree, one is right and one is wrong,” Pohl said at one point, before adding the caveat that there are at times issues of discretion.
“The Spanish inquisition was a process. Soviet kangaroo courts were a process,” said Kammen, a seasoned criminal defense attorney from Indianapolis whose salary in this case is being paid by the Pentagon, just like the judge’s.
Pohl bristled at the analogy. “Mr. Kammen, this process was set up by the United States Congress and set up by the president of the United States.”
The hearing is to resume Wednesday at 9 a.m. in a secret session between the judge and lawyers but not Nashiri. The lawyers are to discuss how, if at all, the public — and the accused — can hear at least part of the attorneys’ arguments over what kind of information Nashiri’s lawyers can get related to his secret overseas detention and interrogation by CIA agents.
Their specific request is filed under seal at the war court. Before Nashiri got to Guantánamo in 2006 he was held in the secret CIA prison network, called black sites, where declassified abuse investigations found agents interrogated him at gunpoint, with a revving power drill to his head, while hooded. His defense team considers those techniques torture that make certain evidence inadmissible at trial.
The CIA has cast Nashiri, a self-described former millionaire from Mecca, Saudi Arabia, as al-Qaida’s chief of Arabian Sea operations at the time of his capture in 2002 in the United Arab Emirates. Nonetheless, his long-time Pentagon defense lawyer, Navy Lt. Cmdr. Stephen Reyes, told the judge Nashiri had a right to attend Wednesday’s closed session.
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.