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9/11 Arraignment #13: Getting Through These Challenges Has Been A Challenge

Benjamin Wittes, Wells Bennett
Sunday, May 6, 2012, 12:17 PM
It’s nearly 5:00 pm when the court reconvenes, and everyone is exhausted. The day has been long and contentious, and we are not even 40 percent of the way through the questioning of the judge. Fortunately, the remaining defense lawyers move a bit quicker than Bormann and Nevin did--the latter two having asked many of the questions that all of the defense lawyers wanted answered. So things pick up at this point, and we treat all four remaining lawyers in this single post. Michael Schwartz begins--still on behalf of Bin ‘Attash--by returning to the subject of news coverage.

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It’s nearly 5:00 pm when the court reconvenes, and everyone is exhausted. The day has been long and contentious, and we are not even 40 percent of the way through the questioning of the judge. Fortunately, the remaining defense lawyers move a bit quicker than Bormann and Nevin did--the latter two having asked many of the questions that all of the defense lawyers wanted answered. So things pick up at this point, and we treat all four remaining lawyers in this single post. Michael Schwartz begins--still on behalf of Bin ‘Attash--by returning to the subject of news coverage. This case generates lots of publicity, he says. When I log into a computer, I actively seek out news about the case in the morning. But do you, Judge Pohl, have to consciously ignore it? I’m not sure what you’re asking, responds the judge. If you’re asking whether I see press accounts, then sure, occasionally. When you do, do you have to look the other way, so speak, in order to remain impartial? No. I put press reports aside when I sit as a judge. I decide cases on the evidence as presented by counsel. Sometimes, what a reporter sees is not anywhere close to what actually happened, the judge notes. But I’m not going to discuss every article out there, whether I read it or not. What about op-ed pieces, Schwarz asks? Given the unsettled questions about the commissions' fairness, there have been a lot of op-eds about them. Is it fair to say that you’re open to the possibility that this system is broken? I deal with legal terms. I’m not familiar with “broken” in the legal sense, says Judge Pohl. If some or all of the system is not, in my view, functioning in accordance with legal principles, then I’ll issue appropriate remedies. And if others characterize that as “broken,” so be it. Schwartz notes that in military practice, it’s common on longer days for judges to take over lines of questioning from counsel. I haven’t practiced in an army court before, he says, but I’d like to know your opinion about whether the accused’s rights are harmed when a judge takes over questioning in this way. The judge says he doesn’t give advisory opinions.  Should any party do something that objectionable, then counsel can object. Nevin, Schwartz noted, talked to you about ex parte communications with certain government agencies. But he didn’t cover them all. Have you or your staff had contact with any person assigned to JTF-GTMO? Yes. They supervise logistical support for the commissions, says the judge.  On that issue, they are the primary contact point for my staff. There’s also routine contact for vehicles and housing. But, Judge Pohl stresses, I sure don’t discuss cases with anyone from JTF-GTMO. What about the CIA? As I told Nevin, the judge repeats, the answer is a clear no--with the exception of 505 evidence review. How about the Defense Department's Assistant Secretary for Detainee Affairs? I don’t know whom you’re talking about, Judge Pohl says, but the answer is also no. I’m not trying to minimize the importance of the question, but these people just are not part of my life. Schwartz says he’s never practiced in an Army courtroom, but in the Air Force, courts are pretty incestuous places. I’ve seen a prosecutor turn into a defense lawyer, he notes. Judge Pohl is getting irritated. Just ask me a question that has to do with my life, please. Schwartz moves on. Have you ever been involved in ex parte conversations with trial counsel? Judge Pohl says that he assumes Schwartz means improper ex parte communications. Right, says Schwartz. Then the answer is no, says the judge. Have you ever counseled a prosecution lawyer ex parte, regarding the latter’s poor performance? As a judge, any counseling about perceived shortcomings is done on the record if it is serious; or, if otherwise, in the presence of both parties once the case is over. I wouldn’t use the term “counseling,” either, because I’m not able to “counsel” any lawyers, Judge Pohl adds. Schwartz pauses, then resumes. Have you ever shown disagreement or dissatisfaction with a prosecutor, because the prosecutor had agreed to a pretrial agreement that you didn’t like?  The court answers in the negative, and explains.  It’s not my job to conclude pretrial agreements between the accused and the Convening Authority. That’s their job. I give the appropriate sentence if and when that becomes necessary. But it is not my role to evaluate pretrial agreements, Judge Pohl says. The attorney is done and turns things over to James Harrington, lawyer for Ramzi Binalshibh. Harrington says he has only a few questions. Before he begins, though, he notes the poor quality of the consecutive translations. As if on cue, one of the translators complains that someone is touching a microphone, and thus precluding the translators from hearing remarks by counsel and the court. It turns out that one of the detainees is tickling the microphone with a piece of paper. Thus we witness one of the true successes of U.S. detention policy over the last decade -- the greatest danger to people’s health and safety now posed by these men is to only to the ears of courtroom translators. But Judge Pohl is annoyed and threatens to have the microphone removed from the detainee in question if he doesn’t behave. Harrington notes that Mark Martins has spoken many times, comparing these military commissions to Article III courts.  And yet he persistently does what Harrington calls the Martins Shuffle -- in which the prosecutor refuses to say whether constitutional rights in fact apply to the commissions. Do you believe or accept that the U.S. Constitution applies in these proceedings? The Constitution always limits congressional authority, the judge replies. With the exception of the Suspension Clause, though, I have seen no case in which an individual right has been held to apply to an accused here. That may be because most of the action has been in the habeas arena. So it is an open issue. And I am open to persuasion either way, with the assistance of counsels’ briefs. Other than in court filings and correspondence with attorneys, have you had outside contact with the prosecution team? I’ve been in the Army for a long time, the judge says. Martins and I were in the Army at the same time, and in prior lives, we crossed paths. Another prosecutor is a retired judge, and we served as judges together until his retirement. Since the commissions started, however, I have seen them in court or in passing, but not had substantive discussions with them.  Judge Pohl adds that he may have encountered another member of the prosecution before - but, unfortunately, he has a terrible memory and cannot recall.  Ditto for the defense.  Judge Pohl apologizes if he is wrong, but says he doesn’t remember seeing anybody before except Harrington himself, whom the judge met briefly during his last trip here. Harrington says that forgetfulness may come with grey hairs, of which he has a few. What have you done to prepare for this case, he asks? I’ve been a commission judge since 2007, and a trial judge since 2008. I read the commissions’ authorizing statute first upon its enactment, and again when it was amended in 2009. I also have read the manual, and its subsequent revisions. And I have followed most of the significant habeas cases, and reviewed the rules of the court. Have you reviewed the Supreme Court’s capital cases, too? Yes, says Judge Pohl. Harrington is done and turns things over to James Connell, representing Ali Abdul Aziz Ali. Am I correct that you took an oath to uphold the Constitution, he asks? Yes. In general, what do you think that oath means? It means what it says. Have you undertaken or refrained from any action because of that oath that you would have otherwise taken? I can’t conceive of that decision matrix, says the judge, but that’s who I am. Connell asks whether he correctly understands the implementation of the oath and its effect on the judge--that implementation is left to his own moral judgment. Different people could think the Constitution means different things. Do you agree? Sure, the judge says. What I’m really trying to find out is whether the oath has an impact on your day-to-day activities? I’m not quite sure what you mean, says Judge Pohl. The oath has nothing to do with whether I have a hamburger or a hotdog for lunch. It of course does have to do with what I think is right as a judge; it absolutely permeates everything I do in that latter regard. For Judge Pohl, the oath means that he must consider every argument as he hears it, and call things as he sees them based on the law.  The results are what results are--whether that means dismissal, that a crime scene is preserved, or that an arraignment is not delayed. That’s what I do, explains the court. Let me give you an extreme example, Connell says. Suppose that Congress passed a law allowing for capital trial by summary contempt.  Yet during this proceeding, because of either bad legal counsel or the absence of any counsel, no argument was made that the trial was unconstitutional. Would your oath allow you to preside in such a case? Judge Pohl says he would not stand by, follow a clearly unconstitutional statute, and allow the death penalty to be carried out. I would participate, he says, in order to prevent that from happening. Does your understanding of the oath to uphold the Constitution include the fact that others might exercise their moral judgment differently? Judge Pohl says he doesn’t know what that means. Here’s Connell, trying to be more concrete: imagine that a panel member made the moral judgment that his oath would not permit him to convict the accused or to impose the death penalty in a military commission.  Would you consider that to be a valid implementation of the member’s oath? There are two separate issues there, observe Judge Pohl. One issue is whether the members’ belief is honestly-held, and that is a personal matter for the member and the member alone.  Whether that member meets the standard required to serve on a death-qualified panel is a separate question. Regarding that, Judge Pohl emphasizes that the case simply has not come to the qualifications phase for the members.  And, he adds, qualification is legal issue; he does not give advisory opinions about challenges for cause. Connell pushes a little more here, but he doesn’t get more from Judge Pohl, so he sits down. Walter Ruiz, for Al Hawsawi, goes last.  Did you have to submit an application to be considered for military commission duty, Judge Pohl? No. Did you have conversations with the appointing authority regarding the commission assignment, Judge Pohl? No. Did you have conversations with others who were compiling the list of possible assignees, Judge Pohl? I was in Baghdad at the time, the judge responds. At that time, I received a call from the chief trial judge of the Army, who asked whether I would serve as a military commission judge. I said yes, and that was the end of our discussion. Ruiz wants to know when that discussion took place: around March of 2007, Judge Pohl says. There are nine judges? We tried to have three from each service, the court explains, and while the Marines don’t like this, we consider them as part of the Navy. So there’s three judges from the sea services, three judges from the Air Force, and three judges from the Army.  So the number if nine, though it can be a little more or less because of retirements or transfers. The dialogue falls back into its by-now-familiar rhythm.  Did you have to submit any kind of application, in order to become chief judge for the military commissions, Judge Pohl? No. Did you speak to representatives of the Convening Authority concerning the job, Judge Pohl? No. Other than presiding over commissions, what are your duties as a member of the trial judiciary? The court says its job is to try cases, and to assist jurisdictions that are short of judges or have a large case load. Judge Pohl notes that in 2009, the Army put a full-time military judge at Fort Benning to handle cases there.  There’s one more question along these lines.  Do you have supervisory authority over judges accepted by the Convening Authority as members of commissions trial judiciary? I have detailing authority, Judge Pohl says, but no real supervisory authority. Ruiz returns to the question of Judge Pohl’s experience, relative to that of the other available judges.  (The judge earlier had said that he had not examined this matter closely.) Judge Pohl, you indicated earlier that you follow the law as you understand it. Did you know that the MCA requires a review of defense qualifications before a detailing decision can be made? Is that not also the trial judge’s role--to assess, in advance, the proper qualifications of all judges in the pool, so as to ensure that the most suitable judge is detailed to a particular case? If, Judge Pohl responds, you are asking me to explain my rationale about why one judge gets one case, and another judge gets another, well, I won’t go into that with you. Suffice it to say that I assign the judge whom I believe to be most appropriate for the case. I was not asking, says Ruiz, about your mental thoughts in assigning members of the trial judiciary. I was simply asking if you make any effort to determine what experience a member of trial judiciary may have, before you decide to assign him or her. Yes, says Judge Pohl; he does. Ruiz wants to spend some more time on Judge Pohl’s CV and biography.  You were in Heidelberg, Germany in 2002? I was chief judge there from 2002-2007, says the court. That circuit included Afghanistan, Iraq and Kuwait? Yes, it comprised all of EUCOMM and CENTCOMM.  And how many judges did you supervise there? Judge Pohl says he’s not sure what this has to do with disqualification, but that he’ll answer the question nonetheless. He and two other judges were in one city, and another judge was elsewhere. Did you detail yourself, Ruiz asks, to the Abu Ghraib case? Yes. And to the mercy killing case in Wiesbaden? Yes. And to the killing in 2003 of a fellow soldier by two U.S. privates in Wiesbaden? Yes, Judge Pohl says. I think I did the bail hearing, but that may have been all I did. These were all high-profile cases, in Ruiz’s view. High-profile is in the eye of the beholder, protests the judge. Did those cases get press? Sure, though some more than others; there were other cases in Europe that I didn’t try that also got coverage from the media.  You think the Abu Ghraib case was not high profile? Yes, it certainly would be, Judge Pohl acknowledges. One of the questions Nevin asked was whether you had suffered personal injury or property damage as a result of 9/11. You said no. Did you suffer any significant economic losses as a result of 9/11? Ruiz here refers specifically to investments in the stock market. The judge says he doesn’t really know. I have mutual funds that go up and go down, he says. Did I suffer some changes in airport security? Yeah. But only in the way everyone else did. I don’t think in any way that I am a direct or indirect victim of 9/11, except in the sense that any U.S. citizen is a victim. That’s an intriguing response, from Ruiz’s standpoint.  Addressing Judge Pohl, he asks whether Judge Pohl considers himself to be a victim, as a citizen.  I consider myself a U.S. citizen who saw fellow citizens killed, the court explains. Just like every soldier’s death is tragedy, the deaths on 9/11 were a tragedy to me. It is no different from the Japanese who died in the earthquake, or the southeast Asian tsunami victims. For Judge Pohl, its just sad when people die, but that has nothing to do with my his role as a judge. Do you consider it a tragedy when there are citizens and civilians who are victims of collateral damage, during U.S. bombings in the Middle East? Yes, says the judge, but let’s get back on topic here. That I have personal feelings when people die unnecessarily has precisely zilch to do with my beliefs as a judge. I was not asking about the tsunami in Japan, says Ruiz. I was asking about 9/11 and your use of the word “victim.” Judge Pohl apologizes, and stresses that he used the word inartfully. Again, he goes on, I don’t consider myself to be a victim of 9/11, at least not in the sense that Ruiz seems to have used the term.  I am a human being who saw things that saddened me. Judge Pohl pauses to note that there’s been three hours’ worth of questions, and that the discussion is now well afield of anything that might be grounds for the court’s disqualification. The procedure has been lengthy, Ruiz acknowledges. But the lawyer wants to make sure that Al Hawsawi has the same opportunity as the other defendants to question Judge Pohl. You have said you are a “process guy,” he continues. What do you mean by that? Trials are a process that take place according to certain rules, the judge answers. They lead to certain results. But I’m not a results person; I’m a process person. That means the parties must have opportunities to raise motions, to speak, and so forth - but it also means that I won’t take things out of order. That’s what I meant by process. Where do you see the quality of that process fitting in? I have said it again and again, says the judge--who now says it again: I follow rules as best I can. Remember Ruiz’s motion from earlier this morning? The exchange with Judge Pohl seems to reawaken the matter in Ruiz’s mind.  When you say process, Ruiz argues, that assumes that there is only one way to get from Point A to Point B.  And yet, when I earlier cited a Supreme Court case that said you have discretion as to how to conduct pre-arraignment procedures, you rejected that. Where does my effort fit into your idea of “process?” Judge Pohl has no patience for the question. I haven’t seen the case, he says. And counsel simply does not have standing to argue any motions until counsel elections have been made pursuant to commission rules. Finally, you’ve suffered absolutely no prejudice by following those rules, which put both sides on the same footing. Ruiz tries to engage the judge over the 802 issue.  Judge Pohl isn’t biting, so Ruiz turns to the Nashiri case and the similarity of that case’s issues to the issues in this one.  Judge Pohl has ruled against the defense on several motions in Nashiri, thus it appears his mind must be made up on those same issues, to the extent they are raised by counsel in this case.  Well, wouldn’t assigning different judges to the two cases remedy the concern raised by Judge Pohl’s assignment to both? I can’t speak to that, Judge Pohl says. I can only do my job as best I can under the law. So, Ruiz presses on, your position is that, prior to detailing yourself, you had made a determination that none of other eight available judges were qualified to serve on this case or on Nashiri’s?  That’s an irritating question for the judge.  I detailed myself to both cases and that speaks for itself, he says. I believe it does, says Ruiz. Counsel and the court next talk about the latter’s retirement plans, which were deferred by assignment to the military commissions.  Do you have any plans for future employment? My wife says I should have a plan, Judge Pohl responds, but I don’t. I have no plan to do anything until September.  If his commission service is extended at that time, Judge Pohl says he plans to continue serving as a judge. Ruiz fleshes out Judge Pohl’s relationships with the two prosecutors briefly and then concludes.

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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