Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

9/11 Arraignment #11: Nevin Questions Judge Pohl

Benjamin Wittes, Wells Bennett
Sunday, May 6, 2012, 8:24 AM
We have come now to the part of the hearing where the lawyers get to question Judge Pohl to see if they want to move to disqualify him. This turns into quite a marathon. Each of the defendant's legal teams spends a lot of time grilling the increasingly weary judge. In the interest of reader sanity, we will do a fair bit of condensing. Judge Pohl starts with Nevin, for KSM, who begins by asking about his contacts with the former Convening Authority, Susan Crawford. Judge Pohl says he may have argued in front of her when she was a judge and he was an appellate lawyer.

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We have come now to the part of the hearing where the lawyers get to question Judge Pohl to see if they want to move to disqualify him. This turns into quite a marathon. Each of the defendant's legal teams spends a lot of time grilling the increasingly weary judge. In the interest of reader sanity, we will do a fair bit of condensing. Judge Pohl starts with Nevin, for KSM, who begins by asking about his contacts with the former Convening Authority, Susan Crawford. Judge Pohl says he may have argued in front of her when she was a judge and he was an appellate lawyer. He hasn’t seen her socially or had any other contact since the mid-1990s, though. What about her staff? I don’t know who is on her staff.  Have you had contact with her or her staff with regard to a military commission matter? No. Nevin asks the same question regarding former counsel to the Convening Authority, Brig. Gen. Thomas Hartmann. Judge Pohl says he had no such contact, with the caveat that Hartmann testified in a hearing on which Judge Pohl may have sat. The issue was supposed unlawful command influence by Hartmann on the prosecution.  And it was litigated in a number of cases.  What about contacts with the current Convening Authority? None, Judge Pohl says. Crawford appointed me as chief trial judge, he says. When Bruce MacDonald took over, nobody told me I was not chief trial judge any more. That’s my only contact with the Convening Authority in a commissions capacity. So the court has no contact with Convening Authority or staffs on matter related to military commissions, other than his appointment and his appointment as chief trial judge. Judge Pohl says his staff handles contacts with counsel and logistical issues with the Convening Authority. He clarifies that there are no substantive communications with the Convening Authority, directly or through staff, related to commissions on matters of law. Nevin next asks why Judge Pohl has detailed himself to this case. Judge Pohl says he’s not sure the question is appropriate, but he thought it was the best thing to do. Why? Judge Pohl says his rationale is not relevant to any challenge for cause and he won’t answer. Nevin argues that the judge’s detailing himself rather than some other judge could bear on whether the latter’s impartiality might reasonably be questioned. Judge Pohl says he doesn’t think so and he’s not answering. The attorney moves on to other contacts about commission cases.  Any contacts with members of Congress by either you or your staff? Nope. The Justice Department, CIA, or any other agency? Not in the sense that you mean, Judge Pohl answers. In course of my judicial duties, I sometimes have to look at classified evidence. But that’s just paper--and it’s in the context of my work as a judge. Outside that, I’ve never spoken to anyone. Has the court has received any kind of training before undertaking his role as a military judge?  Not specific to commissions, Judge Pohl says, but I did take a course on capital litigation for judges once.  When? Actually, the court self-deprecates, I was a slow learner and took the same class twice, most recently in 2011. The first time, he recalls, was sometime around 2004. Have you sought any guidance on the law of war from anyone, prior to undertaking your military judge role? Nope. Any meetings or conferences related to procedures to be followed by commissions? Not directly, but last March I a seminar on international law and terrorism put on by the federal judiciary. Who taught it? The lecturers included--but were not limited to--Chief Judge David Sentelle of the D.C. Circuit, Scott Silliman of Duke, and Judge Royce Lamberth. It focused on federal judges and national security. Silliman did talk a lot about commissions - but his instruction was aimed at judges unfamiliar with them, and I knew all of the material he described already.  How long did this seminar last? A day and a half. Was it about the laws of war or just national security law in the U.S.? It was focused primarily on recent Supreme Court decisions and related developments in U.S. national security law, Judge Pohl says. Nevin asks whether Judge Pohl has done any independent research or reading regarding the facts and events of 9/11. If the question is whether I have been exposed to the factual allegations about 9/11, then the answer is yes. I have read stuff in general press, he says. He adds that having done this for quite a while, he doesn’t accept press accounts point blank. What newspapers do you read? The Judge’s answer is superior to Sarah Palin’s: The Los Angeles Times, USA Today, the Washington Post, and others. He also says he reads the Defense Department Early Bird, which aggregates news from many sources. Have you read any books about 9/11? Sure, says the judge, though I can’t recall specifically which ones. Have you read the 9/11 report? I may have read the first 10 pages, but not any further than that. Any other books come to mind? Judge Pohl replies that he read the Black Banners - as a reference to the Nashiri case - within the past year. The lawyer asks the judge what the latter learned from Soufan’s book, and Judge Pohl says the question is far afield from the proper inquiry--since he’s not the fact-finder in this case. That said, he’ll answer it. It was written, he says, by an FBI agent who took umbrage about the necessity and effectiveness of enhanced interrogation techniques. Nevin notes that it’s likely that EITs will be an issue in this case. Has Judge Pohl formed or expressed any opinions about EITs, about which the parties should be aware? No. Does he agree with the FBI agent’s umbrage? My personal opinion is irrelevant to my job as a judge. With the input of counsel and my examination of appropriate authorities, I will apply the law as I believe it to be, regardless of what I may personally believe the law should be. Based on the Black Banners or anything else, do you come to court with any kind of decision having been made about whether KSM’s mistreatment and torture during incarceration could constitute appropriate mitigation in a capital case? Mitigation, responds the judge, is in the eye of defense counsel. Are you a member of any organizations, clubs, or committees? Just the U.S. Army. Have you worked with any NGOs? No. How about any private volunteer organizations? Judge Pohl says he’s not sure the question is appropriate, but he’s willing to answer: No. How about international organizations like the ICRC, the UN, and NATO? No. Nevin asks for Judge Pohl’s religious affiliation. Judge Pohl says the question is inappropriate and he won’t answer it. Nevin notes that previous military judges took the question and responded. They were wrong to answer, Judge Pohl responds. Are you acquainted with any Muslims, asks Nevin? It’s irrelevant to how I sit as a judge. Nevin returns to torture, asking whether in the training the judge has received, he had had any regarding torture of prisoners.  No, Judge Pohl says, but he has presided over case involving mistreatment of detainees. Like what? Abu Ghraib, for one. Are there others? Yes, Judge Pohl says, but I’m not recalling them right now. Are you a member of a political party? Judge Pohl says the question is inappropriate. Do you have any connections with political leaders either in the Bush or Obama administrations? No. Where were you on 9/11? Fort Bragg, North Carolina. Where was your spouse? In Georgia. Did you have any family in New York City on 9/11? My wife’s sister was in the area, but she was not injured or involved. Is that the same regarding the Pentagon? Yes--and also the same regarding Pennsylvania, Judge Pohl says. Did you suffer any form of personal injury or property damage on 9/11? No. Are you acquainted with anyone who did? I don’t think so. But I may have been acquainted with someone was at the Pentagon that day; the Army is a big place. Other than in this case, have you participated in ceremonies or memorializing events regarding 9/11? This is getting far afield for Judge Pohl, but he nevertheless answers no. Have you formed or expressed opinions publicly or privately about whether the accused is responsible for 9/11? No. Are you acquainted with anyone hurt or killed in a so-called terrorist attack other than 9/11? Not to my knowledge. What kind of role did you plan in the wars in Afghanistan and Iraq? Judge Pohl responds that has been to Afghanistan as a military judge. He did not serve in Iraq or anywhere else in any capacity other than as military judge since 9/11. Judge Pohl says he was chief judge in Germany from 2002-2007 and made made approximately 20 trips to Iraq and Afghanistan and Kuwait. He was last in Iraq in 2007; the last time he was in Afghanistan was earlier--probably late in 2006 or early 2007. Did you ever come under fire? Occasionally indirect fire, but never direct, and Judge Pohl says he was never injured. Was anyone close to you killed or injured? No. Nevin notes that Judge Pohl is a member of an army fighting wars. How do you set that aside when you come here to judge this case? Judge Pohl says he’s no different from any other judge in that regard. Yes, Nevin pushes, but usually, military trials deal with the actions of American soldiers. Here, the proceeding relates to persons allegedly part of the enemy. That doesn’t make any difference, Judge Pohl responds. I don’t see any connection between the events in this trial and, say Tikrit (which postdated them), and even if there is a connection, I will put it aside and do my job as a judge. Nevin pushes again: Yes, but how do you put aside the question that we are at war and now the court is supposed to judge the supposed enemy combatants of the other side? That logic, the judge responds, would apply to any military judge selected. Replies Nevin: Exactly. Nevin seems to think he has scored a big point with this last exchange, but Judge Pohl responds laconically. If you want to challenge me on that basis, he said, feel free. Nevin argues that this case will be different from past military commissions cases. In past ones, he says, I’ve never questioned the structure and legitimacy of the court itself. And I’m not going to now. But the fact that you have appeared and donned a robe implies that you have already decided that this forum is legitimate. Is that right? Congress passed a statute, twice, says the judge. It’s been implemented by the executive branch. I have been detailed in accordance with those authorities. It’s not for me to say whether or not a particular statutory authority is legitimate or not, unless you point me to some authority, constitutional or otherwise, that requires me to strike it down. You will have every opportunity to challenge the structure and basis of this commission if you wish. Yes, but have you already decided the answer to the legitimacy question? Walking through the door does not mean I’ve made up my mind on every legal issue, responds the court. Nevin now dredges up a 24-year-old article Judge Pohl wrote about a case called United States v. Holt. In that article, the attorney points out, you wrote about the illusory appearance of fairness in an aspect of court martial practice. Is it possible, he asks, for a court to create only the appearance of fairness, rather than actual fairness? As your question is framed, anything is possible, says Judge Pohl. Nevin asks whether Judge Pohl has presided in a capital case before. He has not. Have you ruled on mitigation issues? No. Is there any part of the law of capital punishment that you disagree with, with the understanding that you are nonetheless obligated to follow it? The judge says he will follow the law as best he can, regardless of his personal opinions. Do you have any predisposition as to whether the torture of a detainee is or is not a valid issue for mitigation? I have said before, says Judge Pohl, that I have no preconceived notions on the admissibility or weight of any evidence. I will rule on that when it comes up. The only thing I have decided, Judge Pohl says wryly, is that we’re arraigning this case today. But in Nashiri, Nevin pushes, you signed an order prohibiting counsel from discussing torture and other issues with the client. Judge Pohl says he believes that there is a pending order to the same effect in this case.  I may be wrong, he says, but I won’t sign anything without input from both sides absent extraordinary circumstances. This issue should come up when we talk about the motions schedule, he says. Even though I may get similar motions as in Nashiri, I will treat them individually. I don’t have preconceived ideas about how to rule on the various issues that will arise. Yes, but the fact that you issued the exact same order in another case, Nevin says, implies that you have previously decided the question. Many of the same issues litigated in the Nashiri case will arise here too. How do we get a fair hearing on issues that you have already heard and decided? It seems like we’ll be at a constant disadvantage. You won’t like the motions that the Nashiri defense loses, but you’ll like the ones he wins, Judge Pohl responds. I will treat each case separately, and if I’m wrong in Nashiri, then I’ll be wrong in this case. My point exactly, says Nevin. Will you have open mind? Judges do that all the time, says the judge: ignore arguments in one case that we considered in another. There were no capital charges in the Abu Ghraib case, observes Nevin. And there was no homicide in the Abu Ghraib case, responds the judge. There were deaths, says Nevin.  True, but not in my cases, says the judge. Nevin asks briefly about Judge Pohl’s retirement plans, and he sits down.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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