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Military Commission Judge Defies Obama Executive Order; Refuses To Halt Proceedings

By Big Tent Democrat, Section Terror Trials
Posted on Thu Jan 29, 2009 at 12:12:45 PM EST
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In an Executive Order, President Obama directed that:

The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

(Emphasis supplied.)Via litigatormom, we discover that one military commission judge has chosen to defy this executive order:

Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, portions of which were read to The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

Perhaps government attorneys failed to bring President Obama's Executive Order to Judge Pohl's attention. As I read the order, halting proceedings is not subject to the discretion of the military judge. The Military Commissions Act provides the President, acting through the Secretary of Defense, absolute authority over the military commissions process.

If Judge Pohl is in fact aware of President Obama's executive order, I would be curious to know on what basis he feels empowered to defy an order of the President. Perhaps Judge Pohl views that military commissions as a species of Article 1 court not subject to the President's orders. A very curious development.

Speaking for me only

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    Military Commission Judge Defies Obama Executive Order; Refuses To Halt Proceedings | 104 comments (104 topical)

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    How long before FOX... (5.00 / 1) (#51)
    by Dadler on Thu Jan 29, 2009 at 02:00:46 PM EST
    ...will be hailing this judge as courageously standing up against an egregious abuse of executive power?

    I love it (5.00 / 2) (#66)
    by ruffian on Thu Jan 29, 2009 at 02:37:45 PM EST
    We will then have come full circle, since it was the egregious use of executive power that the Military Commissions Act attempted to correct.

    [ Parent ]
    There were two different orders in play (5.00 / 2) (#77)
    by steintr on Thu Jan 29, 2009 at 03:04:04 PM EST
    I think there's a bit of confusion stemming from two different orders.

    On January 20, the Government requested a 120-day continuance of the pending military commissions cases; a copy of the motion papers are available here.  In that motion, the prosecution specifically represents that it is requesting a continuance pursuant to an oral order from the President to the Secretary of Defense and then in turn from the Secretary of Defense to the Chief Prosecutor of the Office of Military Commissions.  (See paragraph 5(b).)  As far as I can tell, it was that request for a continuance which was denied.  The Court's decision may be erroneous, but it's not ultra vires or insubordinate --- both because the Court was not the subject of any direct order (the prosecutors were) and because the Court presumably has the authority under the MCA to rule on motions (even erroneously).

    The Executive Order that BTD cites is dated January 22 (two days later), and the operative provision is directed from the President to the Secretary of Defense.  Again, there's no way in which the military judge could violate that order, since (i) it hadn't been relayed to him through the chain of command; and (ii) it doesn't direct him to do anything.  Rather, the Secretary is directed to take "steps sufficient to ensure . . . that proceedings . . . are halted."  

    At the time, I assume that both the President and the Secretary thought that the request for continuances made on January 20 was sufficient, but now that it is clear that it wasn't (in at least that one proceeding), the Secretary is presumably under a duty to do something else to "ensure" that the proceedings are halted, such as ordering the Convening Authority to withdraw the charges (with or without prejudice), directly ordering the military judge to stay the proceeding, or taking some other steps he deems appropriate to fulfill the President's request.

    So in short, I don't think there's grounds for thinking anyone did anything illegal here (beyond the generally farcical status of the MCA), although what the military judge was thinking is beyond me...  (It's not as if the military commission's proceedings are worth spending time on if the President isn't on board...)

    No confusion on my part (none / 0) (#79)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:06:54 PM EST
    I just find it farcical that Judge Pohl thinks something beyond the express order of the President is required.

    [ Parent ]
    No disagreement on that (none / 0) (#91)
    by steintr on Thu Jan 29, 2009 at 04:09:18 PM EST
    Well, I'm sure he'll get more direct "guidance" now...

    The whole thing is more than a little silly (as much as a capital case can be); we're talking about a request for a stay of an arraignment --- it's not as if jeopardy has attached (if double jeopardy even applies in the commission system), so the prosecution shouldn't need the court's permission to withdraw and refile in 120 days, if the court doesn't want to stay proceedings.  And we've obviously established by now that nobody is concerned with a speedy trial right...

    [ Parent ]

    Thanks for the clarification. (none / 0) (#98)
    by Jacob Freeze on Thu Jan 29, 2009 at 04:53:31 PM EST
    But it isn't clear that jeopardy won't attach if the case proceeds to arraignment and al-Nashiri enters a plea, and that may be exactly the point of Judge Pohl's resistance to more delay.  Al Jazeera makes a fairly clear presentation...

    Judge James Pohl denied the motion put forward by the prosectution at Obama's request to suspend the trial for 120 days, saying it was "not reasonable" and "did not serve the interest of justice."

    The White House said on Thursday it was looking at its options following the judge's ruling.

    "We are consulting with the Pentagon and the department of justice to explore our options in that case," Robert Gibbs, a White House spokesman, said.

    You're probably right that "nobody is concerned with a speedy trial," since it's five years too late for "speedy," but it's also possible that Judge Pohl has had enough of indefinite detention and doesn't want to condemn the defendant to another open-ended period of confinement while Obama's DOJ gets its ducks in a row.

    There's more in the Post...

    But Pohl said he found the government's reasoning "unpersuasive" and he clearly felt he was not bound to bow to the administration's wishes.

    The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

    "The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, which was obtained by The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

    The judge wrote that "the public interest in a speedy trial will be harmed by the delay in the arraignment."

    But it would bring the Nashiri case back to square one and cost the government time if it attempted to re-start the case within military commissions system. Some military defense attorneys had urged the withdrawal of charges in all cases, which would have been a clear indication that military commissions were dead. But the Obama administration instead sought only a suspension, a decision that some human rights activists described as 'life support" for the current system.

    And if an arraignment goes ahead and Nashiri enters a plea, subsequent proceedings would be subject to double jeopardy rules, according to defense lawyers. That could severely complicate the administration's ability to move Nashiri's case to federal court or courts martial, defense lawyers said



    [ Parent ]
    Silly (none / 0) (#99)
    by Big Tent Democrat on Thu Jan 29, 2009 at 05:02:23 PM EST
    The government will refuse to proceed to arraignment, withdraw the charges and refile them in 120 days.

    Pohl has acted stupidly and absurdly here, under the BEST interpretation. Under the worst, he has been insubordinate.

    [ Parent ]

    So many armchair lawyers, and one excellent judge (none / 0) (#100)
    by Jacob Freeze on Thu Jan 29, 2009 at 08:13:55 PM EST
    Isn't it strange that Judge Pohl has won the respect of all parties involved with the commissions, and managed to maintain his integrity through a long series of trials involving Guantanamo and Abu Ghraib, and successfully resisted abuses by the Bush administration through five years of military tribunals constantly altered in form and procedure, and honorably served as a military lawyer and judge for 27 years, including his current rank as Chief Judge of the 5th Circuit of the Military Trial Judiciary since 2002, and now...

    So many armchair lawyers  with zero experience of military law claim to understand the issues in a very complicated and unprecented legal tangle better than Judge Pohl, even though none of them has read more than a few fragments of Judge Pohl's ruling.

    [ Parent ]

    I lied last time, when (none / 0) (#103)
    by eric on Thu Jan 29, 2009 at 10:42:37 PM EST
    I said THAT was the last time I would say this, but please, dear Jacob, please listen this time, this is not a military court!  This is a tribunal set up under the Militiary Commissions Act.

    [ Parent ]
    Can you reference what wqas done HERE (none / 0) (#105)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:09:40 AM EST
    for once in this thread?

    Your commenting in this thread has been simply absurd.

    [ Parent ]

    Thanks (none / 0) (#89)
    by ruffian on Thu Jan 29, 2009 at 04:04:29 PM EST
    that does help me understand what is going on.

    Have you thought of writing for the Washington Post?

    [ Parent ]

    I am thinking Harry Truman fired McArthur (none / 0) (#1)
    by Molly Bloom on Thu Jan 29, 2009 at 12:20:23 PM EST


    A court martial for Judge Pohl? (none / 0) (#2)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:22:00 PM EST


    [ Parent ]
    It's called insubordination. (5.00 / 1) (#5)
    by scribe on Thu Jan 29, 2009 at 12:25:09 PM EST
    A crime under the Uniform Code of Military Justice.

    And a pretty flagrant example of it, too.

    [ Parent ]

    I agree (5.00 / 1) (#10)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:33:31 PM EST
    but the MCA contains provisions that military judges are not to be subject to any penalty for their actions as military judges.

    I would argue that his actions were ultra vires and that, indeed, any motions before him were rendered moot, or at the least stayed, by the Executive Order.

    [ Parent ]

    True, and the more I think about it (5.00 / 1) (#17)
    by scribe on Thu Jan 29, 2009 at 12:47:23 PM EST
    the more I kinda tend to agree with the judge.

    Recall that, when the Obama order first was sent out, it was sent to the prosecutors instructing them to seek the 120 day continuances.  Everyone mis-reported at the time, and I made a big stink about it, that Obama ordered the tribunals stopped.

    I argued then (and recall it now) that what Obama was doing, by having the prosecutors ask for relief by way of a motion, he was working to re-establish not only the idea of the Rule of Law, but also the practice of it.  I argued then that there was a chance a judge would deny the motion request and the test would then be whether not just the name "Rule of Law" would be bandied about, but also whether it would be observed in practice.

    In so many words, submit it to a judge, let the judge decide, if you don't like the decision, appeal and deal with it within the usual legal procedures.

    Thus, Pohl may be (1) engaging in a little kabuki with the Administration by forcing them to appeal and work within the Rule of Law, or (2) testing the Administration to see whether they actually mean what they say or (3) angling for a job on Fox to come after being fired, in the event the Admin does not mean what they say and fires or disciplines him for not being the rubber stamp he was expected to be under Bush.

    So, now the rubber meets the road - is Gitmo going to be a kangaroo court where the forms serve only to mask the fact that the President is playing all the hands at the table (which is what we've had, what with forced retirements of judges who ruled against the government and termination of the service of defense JAGs), or is it going to be a real court where the government can lose.  

    [ Parent ]

    I Chose Door # 3 (5.00 / 2) (#25)
    by squeaky on Thu Jan 29, 2009 at 01:01:02 PM EST
    angling for a job on Fox to come after being fired
    lol

    [ Parent ]
    Now the Government has to take an appeal (none / 0) (#29)
    by scribe on Thu Jan 29, 2009 at 01:12:28 PM EST
    From the news reports I've seen, the arraignment was not to take place until Feb. 9, so it's not like they are going to do it tomorrow.

    A system only works, if you make it work.  That's what has to be done here.  

    [ Parent ]

    I disagree (none / 0) (#33)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:32:42 PM EST
    I suggest that Secretary Gates should send Judge Pohl a direct order and tell him that his proceeding has been halted and that he should stop issuing orders forthwith, other than one informing the parties that the proceedings have been halted by executive order.

    [ Parent ]
    How about the Weakest Link Award (2.00 / 1) (#60)
    by Intrepid One on Thu Jan 29, 2009 at 02:23:29 PM EST
    for Obama. He spits in the wind of bi-partisanship when average voters who have been around and understand politics knew it would never work and were right as the world watches him fail at it. I won't get into the world implications of his failure and how it leaves the status quo of division in countries throughout the world starting in the Middle East.

    And now Obama can't even gain the support of a military judge when Obama is supposedly the CiC.

    This green slick talking guy who double-talked, schmoozed, and lied his way into the WH is so far a God Send for the GOP and for the status quo in the world.

    I pity poor George Mitchell in I/P trying to talk up reconciliation when the leader of the free world can't garner a single opposition vote and has the military justice system thumbing their nose at him.

    If the first 9 days are any indication we are in big trouble. The thoughts of a President Hillary Clinton are looking real good to those with 20/20 hindsight.

    [ Parent ]

    Keep you comments on topic please (none / 0) (#62)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:25:50 PM EST
    The -place to bitch about Obama is in all my posts bitching about Obama below.

    [ Parent ]
    out of my area of expertise (none / 0) (#4)
    by Molly Bloom on Thu Jan 29, 2009 at 12:24:40 PM EST
    I would welcome hearing from someone who does have knowlege.

    I suppose that is an option

    [ Parent ]

    Judge Pohl is exactly right. (none / 0) (#35)
    by Jacob Freeze on Thu Jan 29, 2009 at 01:36:28 PM EST
    Judge Pohl has already amply demonstrated his commitment to fiat justitia ruat caelum in previous orders prohibiting the destruction of the prison at Abu Ghraib, and later ensuring easy access to their clients for lawyers representing defendants at Guantanamo.

    Judge Pohl is probably literally incomprehensible to a "lawyer" like Barack Obama, who never tried a case or published a scholarly article in a legal journal, and never regarded the law as anything other than a device for propelling his political career, but Mr. Obama would be wise to avoid a full-scale confrontation with Judge Pohl, and the other commenters on this thread should reconsider their advocacy for transforming all military courts into playthings of whoever happens to occupy the Oval Office.

    [ Parent ]

    Excuse me (none / 0) (#39)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:41:48 PM EST
    BY LAW, they are plaything of the President.

    the LAW is the problem and needs to be repealed.

    Judge Pohl is way out of line here.

    [ Parent ]

    Can you cite relevant statutes? (none / 0) (#46)
    by Jacob Freeze on Thu Jan 29, 2009 at 01:56:22 PM EST
    Judge Pohl isn't some stooge whose opinion should be dismissed without exact justification.

    Upon exactly which statutes do you base your opinion?

    [ Parent ]

    I cite the law (none / 0) (#48)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:59:08 PM EST
    in my post. It is called the Military Commissions Act.

    It say quite clearly that military commissions are under the control and authority of the President and empowers the Secretary of Defense to control it.

    the legislation creates rules for how it functions. But IF it functions is entirely up to the President.  

    Judge Pohl has no leg to stand on at all.

    [ Parent ]

    Citing "the law" isn't a legal argument. (1.00 / 1) (#52)
    by Jacob Freeze on Thu Jan 29, 2009 at 02:06:10 PM EST
    Which statute empowers the President to directly interfere with the proceedings of the court?

    [ Parent ]
    The statute I cited to (5.00 / 1) (#55)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:10:36 PM EST
    If you can't click the link, I can't help you.

    I love that citing to the statute and telling you what it says is now "not an argument."

    Enjoy your obtuseness.

    [ Parent ]

    There's also a summary on Wikipedia (none / 0) (#63)
    by Jacob Freeze on Thu Jan 29, 2009 at 02:28:27 PM EST
    I looked at your link, and there's also a summary on Wikipedia that I read for an overview, and nothing in either location seems to me to imply that the President can directly interfere with court procedure.

    I'm not asking for direct statutory authority just to be difficult. Judge Pohl is an eminently respectable jurist, and before I dismiss any ruling by someone with an illustrious record of resisting abuses by the Bush administration, I want to see some clear language in black letter law.

    [ Parent ]

    Read the law (none / 0) (#64)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:33:17 PM EST
    the language could not be clearer.

    [ Parent ]
    I guess I am a glutton (none / 0) (#67)
    by eric on Thu Jan 29, 2009 at 02:40:45 PM EST
    for punishment, but here goes.  The link in the main post, to the Military Commissions Act, clearly puts the "Authority for Military Commissions in the President".  See Section 94b(b), which is on the third page.

    This whole apparatus is under the authority of the President.  He cannot be interfering with it because it is his to interfere with.  This is NOT a regular military court.  GET IT?

    [ Parent ]

    948b (none / 0) (#69)
    by Jacob Freeze on Thu Jan 29, 2009 at 02:48:08 PM EST
    AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military
    commissions under this chapter for offenses triable by military commission as provided in this chapter.

    The President is only authorized to establish the commissions, and no provision of the Act gives him authority to interfere with court procedure.

    [ Parent ]

    the President has the complete authority (none / 0) (#71)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:48:53 PM EST
    to utterly disregard the military commission (it is NOT a court.)

    [ Parent ]
    I gave him some of the sections (none / 0) (#70)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:48:15 PM EST
    The part I liked best is that the President can completely disregard anything the military commissions do.

    [ Parent ]
    A few parts (none / 0) (#68)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:47:22 PM EST
    ``(a) PURPOSE.--This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants
    engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

    ``(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.`

    ``Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose."

    "PROCEDURES AND RULES OF EVIDENCE.--Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be
    prescribed by the Secretary of Defense, in consultation with the Attorney General."

    ``(c) DELEGATION OF AUTHORITY TO PRESCRIBE REGULATIONS.-- The Secretary of Defense may delegate the authority of the Secretary
    to prescribe regulations under this chapter.
    ``

    ``§ 949u. Execution of confinement
    ``(a) IN GENERAL.--Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into
    execution by confinement . . ."

    ACTION BY CONVENING AUTHORITY.--(1) The authority
    under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.
    ``(2)(A) The convening authority shall take action on the sentence of a military commission under this chapter.
    ``(B) Subject to regulations prescribed by the Secretary of Defense, action on the sentence under this paragraph may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
    ``(C) In taking action under this paragraph, the convening authority may, in his sole discretion, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening
    authority may not increase a sentence beyond that which is found by the military commission.
    ``(3) The convening authority is not required to take action on the findings of a military commission under this chapter. If the convening authority takes action on the findings, the convening authority may, in his sole discretion, may--
    ``(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or
    ``(B) change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge.
    ``(4) The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection.`

    FYI. "the convening authority" is the PResident of The United States.

    So do you see NOW that these military commissions are a Presidential plaything? The President can completely disregard everything the military commissions do.

    Judge Pohl is full of crap.

    [ Parent ]

    Authority to pardon isn't authority to interfere w (none / 0) (#72)
    by Jacob Freeze on Thu Jan 29, 2009 at 02:55:24 PM EST
    Most of the sections you quoted deal with the power to suspend or set aside sentences after judgement has been rendered. None of them deal with procedural interference.

    Section 948f is also worth careful consideration:

    `(f) PROHIBITION ON EVALUATION OF FITNESS BY CONVENING
    AUTHORITY.--The convening authority of a military commission
    under this chapter shall not prepare or review any report concerning
    the effectiveness, fitness, or efficiency of a military judge detailed
    to the military commission which relates to his performance of
    duty as a military judge on the military commission.

    This is one of several provisions intended to prevent exactly the sort of executive intrusion into court proceedings that Mr. Obama has attempted.


    [ Parent ]

    At the risk of getting in the middle of this (5.00 / 1) (#73)
    by jbindc on Thu Jan 29, 2009 at 02:58:50 PM EST
    If the judge is being insubordinate and can be punished by the Commander-in-Chief, then why has no statement from the administration other than "the Pentagon will look at their options" come out?

    Don't you think if it was as black and white as many here think, stronger words would have already been spoken and stronger actions would have already been set in motion?

    [ Parent ]

    Hardly (5.00 / 1) (#75)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:01:28 PM EST
    Why would Obama want a big stink?

    [ Parent ]
    I give up (none / 0) (#76)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:03:24 PM EST
    You ignore everything that disproves your argument, such as

    "(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.`"

    To wit, the President can abolish the military commissions tomorrow but you argue he can not order a suspension of the military commissions.

    This is simply absurd.

    [ Parent ]

    As for "interference" (none / 0) (#78)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:04:48 PM EST
    Completely ignoring the results of the proceedings counts as what? This is just absurd.

    The law stinks. We agree. But it is the law.

    [ Parent ]

    Obstruction of justice (none / 0) (#80)
    by Jacob Freeze on Thu Jan 29, 2009 at 03:13:27 PM EST
    The President has full power to pardon anyone convicted of anything by any court in the United States, except himself, after impeachment by the House and trial by the Senate.

    This does not mean that the President is empowered to interfere with court procedure or even criminal investigations, and that's exactly why impeachment proceedings typically include charges of obstruction of justice.

    If the President had unlimited authority to interfere with administration of the law, as many commenters on this thread allege, a charge of obstruction of justice would be vacuous by definition, but it isn't.

    [ Parent ]

    Dear Jacob: (none / 0) (#81)
    by eric on Thu Jan 29, 2009 at 03:18:29 PM EST
    and this is the last time I will say it.  This IS NOT A COURT!  It is a tribunal authorized by the President pursuant to the Military Commissions Act.

    [ Parent ]
    That is incorrect (none / 0) (#82)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:18:49 PM EST
    The President is the law enforcement officer and can, through his Attorney General, interfere with criminal investigations.

    But that is really irrelevant. Military commissions are not Article  III or Article I courts.  

    [ Parent ]

    Prediction (none / 0) (#83)
    by Jacob Freeze on Thu Jan 29, 2009 at 03:37:52 PM EST
    I predict that Mr. Obama will arrive at a significant accomodation with Judge Pohl, or Judge Pohl will simply prevail, and it's probably pointless to argue this thing ad nauseam when it will be obvious in a week or two who was right or wrong, and whether I'm an "obtuse troll," as several commenters so intelligently argued, or not.

    [ Parent ]
    Define "Judge Pohl will prevail" (none / 0) (#85)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:42:52 PM EST
    Cuz I know one thing for sure - that proceeding will NOT go forward.

    I call that Judge Pohl NOT prevailing. But I am positive your mileage will vary.

    There will be no arraignment on February 9.

    [ Parent ]

    The Court (none / 0) (#54)
    by eric on Thu Jan 29, 2009 at 02:10:07 PM EST
    and indeed the whole process, exists only because of the law cited, the Military Commissions Act.  That Act puts full authority in the President to administer the process.

    This is NOT a court that exists outside of the MCA.  It exists ONLY because of the Act.  The President, since he has full authority over the process, isn't interfering with it.  He is doing what the law says he can do.

    [ Parent ]

    you're off base, Jake (none / 0) (#65)
    by wystler on Thu Jan 29, 2009 at 02:36:37 PM EST
    You ask for citation?

    Really must wonder what you need.

    James Pohl is a Colonel in the US Army. As such, his actions are reviewable by the chain of command.

    At the top? (guess who)

    There are no statutes required here. Obama's executive order is sufficient.

    [ Parent ]

    And your expertise is based on what? (none / 0) (#49)
    by Molly Bloom on Thu Jan 29, 2009 at 01:59:26 PM EST


    [ Parent ]
    Are you trolling (none / 0) (#50)
    by eric on Thu Jan 29, 2009 at 01:59:42 PM EST
    or are you trying to be serious.  The President has absolute authority over the entire process that the Judge is administering.  Of course he can halt it.

    [ Parent ]
    Who is Judge James Pohl? (none / 0) (#58)
    by Jacob Freeze on Thu Jan 29, 2009 at 02:20:34 PM EST
    Maybe you should look through a few google results under Judge Pohl's name before you dismiss him as a fool and start calling anyone who defends him a "troll."

    He resisted pressure by the Bush administration in numerous cases related to Abu Ghraib and Guantanamo, and now he's resisting Obama's attempt to turn the court into a public relations freak show.

    I don't believe that the President has any authority express or implied to interfere with Judge Pohl's compliance with the law as Congress wrote it, and until someone cites a relevant statute to the contrary, I will continue to side with Judge Pohl against nonsense interpretations of military law.  

    [ Parent ]

    I know who he is (none / 0) (#59)
    by Big Tent Democrat on Thu Jan 29, 2009 at 02:22:32 PM EST
    I know what he is doing here is pretty damned outrageous.

    you seem not to.

    [ Parent ]

    Apparently (none / 0) (#61)
    by eric on Thu Jan 29, 2009 at 02:25:04 PM EST
    you are trolling.  At a minimum you are being deliberately obtuse.  If you read BTD or my comments you will see that you are profoundly mistaken and making a fool out of yourself.

    [ Parent ]
    What Shock (none / 0) (#56)
    by Socraticsilence on Thu Jan 29, 2009 at 02:17:33 PM EST
    The guy who always disagree's with Obama thinks he's wrong here.

    [ Parent ]
    And MacArthur became a hero (none / 0) (#3)
    by scribe on Thu Jan 29, 2009 at 12:24:20 PM EST
    to the Republicans and, for a while, a prime contender for the 1952 Presidential nomination.

    I even recall his receiving delegates from, IIRC, Wisconsin.

    Soon-to-be-former Colonel Pohl had better hope he is in ignorance of the Executive Order (not frickin' likely) and correct himself, tout suite.  B/c if I'm Obama, Pohl won't be making any addresses to joint sessions of Congress nor will he be making any appearances on Fox Noise.  He'll count himself lucky if all he does is spend a year or so counting snowflakes in Thule, Greenland.

    [ Parent ]

    Hmmm (none / 0) (#6)
    by Abdul Abulbul Amir on Thu Jan 29, 2009 at 12:27:48 PM EST

    Are not military judges supposed to be immune from command influence?  

    In terms of their action in proceedings (none / 0) (#8)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:31:52 PM EST
    not halted by Executive Order? Yes.

    Thinking it through, it seems to me Judge Pohl is treating his role as that of an Article 1 judge, not subject to suspension by the President.

    this seems a ludicrous view to me.

    [ Parent ]

    Is there an (none / 0) (#31)
    by Abdul Abulbul Amir on Thu Jan 29, 2009 at 01:27:49 PM EST

    Executive Order exception?  

    [ Parent ]
    In the sense that the Executive Order (none / 0) (#32)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:31:10 PM EST
    halted the proceedings, I would say yes.

    [ Parent ]
    Pressure Building Up (none / 0) (#7)
    by squeaky on Thu Jan 29, 2009 at 12:30:26 PM EST
    The generals and on down are still drunk from BushCo blank check. Obama's drawdown plans, one brigade a month for 16 months is being dramatically challenged.

    Colonel Pohl may be the first ripe pimple ready to burst.

    Next act:

    As President Obama moves to redefine the nation's mission in Iraq, he faces a difficult choice: Is he willing to abandon a campaign promise or risk a rupture with the military? Or can he finesse the difference?

    NYT

    Seems that he was aware of it (none / 0) (#9)
    by ruffian on Thu Jan 29, 2009 at 12:33:06 PM EST
    the article makes it sound like the order is what he is referring to when he says he finds the reasoning "unpersuasive".

    Let's see how conciliatory he finds the CinC.

    He finds the President's reasoning unpersuasive? (none / 0) (#11)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:34:35 PM EST
    Well now.

    Actually I think he is ruling on the motion of continuance that was probably filed prior to the issuance of the Executive Order.

    [ Parent ]

    OK, that makes more sense (none / 0) (#12)
    by ruffian on Thu Jan 29, 2009 at 12:35:56 PM EST
    I'll read the article again!  

    [ Parent ]
    I don't know BTD... (none / 0) (#13)
    by ruffian on Thu Jan 29, 2009 at 12:39:59 PM EST
    I read it again...here's what the article says, for what its worth since i don't trust the press to report anything accurately:

    In one of its first actions, the Obama administration instructed military prosecutors to seek 120-day suspensions of legal proceedings in the cases of 21 detainees who have been charged. There are approximately 245 prisoners held at Guantanamo.

    The request was quickly granted in other cases when prosecutors told military judges that a suspension was in the "interests of justice" so that the "president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

    Then next line is the paragraph quoted in your post. Sure seems to me tha the is deliberately not granting the 'request', as the Post puts it.


    [ Parent ]

    The sequence may be: (none / 0) (#14)
    by ruffian on Thu Jan 29, 2009 at 12:43:36 PM EST
    1. Executive order
    2. Resulting request for continuance from prosecutor
    3. Pohl denies it

    I will reiterate my own request for a better media that tells the story clearly so there is no parsing needed.

    [ Parent ]
    I get it now (none / 0) (#15)
    by ruffian on Thu Jan 29, 2009 at 12:45:12 PM EST
    you're saying the prosecutor may not have mentioned that this request was stemming from an executive order.

    I'm slow, but I get there...

    [ Parent ]

    Legislation (none / 0) (#36)
    by jedimom on Thu Jan 29, 2009 at 01:37:37 PM EST
    but isnt the military judge using the Congress' Legislation requiring the tribunals? that is what the decision seems to say. can an Executive Order override the Legislation?

    [ Parent ]
    From the post (none / 0) (#42)
    by eric on Thu Jan 29, 2009 at 01:44:25 PM EST
    "The Military Commissions Act provides the President, acting through the Secretary of Defense, absolute authority over the military commissions process."

    So yes, I think the President does have that power.

    [ Parent ]

    That's wrong (none / 0) (#16)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:45:52 PM EST
    the motions for continuance came first. I am positive of that. Most were granted prior to the executive order.

    Indeed, I did not know any were outstanding.

    [ Parent ]

    Could very well be wrong (none / 0) (#19)
    by ruffian on Thu Jan 29, 2009 at 12:49:17 PM EST
    I'm just going by what the Post says in the part I quoted.

    [ Parent ]
    Or may be this is a loophole in the EO (none / 0) (#18)
    by ruffian on Thu Jan 29, 2009 at 12:47:40 PM EST
    that is being exploited. Did the EO just order them to request continuances, which could then be denied?

    No (none / 0) (#21)
    by Big Tent Democrat on Thu Jan 29, 2009 at 12:52:06 PM EST
    the President ordered the Secretary of defense to take all necessary steps to halt all proceedings.

    At this point, it appears the removal of Judge Pohl may become a necessary step.

    [ Parent ]

    Indeed (none / 0) (#23)
    by ruffian on Thu Jan 29, 2009 at 12:55:16 PM EST


    [ Parent ]
    But who's the boss (none / 0) (#20)
    by Saul on Thu Jan 29, 2009 at 12:50:55 PM EST
    Seems to me that since the president is the commander in chief his last order is supreme law of the land in the military.  The judge and those soldiers involved must obey the president first irrespective of any prior order.

    Military judges (none / 0) (#34)
    by Abdul Abulbul Amir on Thu Jan 29, 2009 at 01:35:56 PM EST
    are supposed to obey the law and ignore command influence.  We only know what was reported in the news.  See post #17 above.  

    We don't know that this judge was issuen any particular order at all.  Before claiming he disobeyed an order, at least we should see a copy of the order that was given to him.  Whatever BHO gave to SecDef is irrelevant to what the judge's orders are.

    [ Parent ]

    Maybe Gates disobeyed the order (none / 0) (#38)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:40:36 PM EST


    [ Parent ]
    Could be (none / 0) (#84)
    by Saul on Thu Jan 29, 2009 at 03:42:14 PM EST
    This reminds me Of A Few Good Men

    Kaffe:   Any chance Kendrick ignored the order

    Jessep: Ignored the order?
               We follow orders, son.  
               or people die. It's that simple.  
               Are we clear?

    Kaffe   Yes sir.

    Jessep: Are we clear?

    Kaffe:   Crystal


    [ Parent ]

    Then have Obama sign another order (none / 0) (#41)
    by Saul on Thu Jan 29, 2009 at 01:43:42 PM EST
    in which it is perfectly clear of his totality of his intentions so no one in the chain of command to include military judges can construe  his order as murky and that it did not mean this or that.

    Its that simple.

    [ Parent ]

    the Executive Order is NOT murky at all (none / 0) (#44)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:46:04 PM EST


    [ Parent ]
    It is not quite that simple. (none / 0) (#53)
    by Abdul Abulbul Amir on Thu Jan 29, 2009 at 02:09:09 PM EST

    Besides signing an order it needs to be delivered.  To the appropriate parties.  If its not delivered its not much more than a rumor.  You don't want the military acting on news accounts of what an order supposedly said, and who it is supposed to be delivered to.  

    [ Parent ]
    The dog ate it (none / 0) (#57)
    by mmc9431 on Thu Jan 29, 2009 at 02:18:21 PM EST
    I really hope that his defense isn't that "he didn't get the memo". Even at Gitmo they get Fox News. If he didn't get it he should have been on the phone to Gates asking why.

    [ Parent ]
    Wrong! (none / 0) (#74)
    by Abdul Abulbul Amir on Thu Jan 29, 2009 at 02:59:53 PM EST
    The members of the military respond to orders given by the superior they report to, not news accounts.  He has a reporting superior, if he has not has a change in orders, he is supposed to carry out his existing orders.  There will be a record of what his orders are and what they were.  That record will speak for itself.

    [ Parent ]
    BushCo Planned Strategy? (none / 0) (#22)
    by squeaky on Thu Jan 29, 2009 at 12:54:06 PM EST
    Wonder how this relates to TL story Jan 14 regarding Omar Khadr Trial in Limbo. The story was that all gitmo detainees trial, including Khadr's were "accidentally withdrawn".  
    Military defense lawyers also said yesterday that the Office of Military Commissions may have accidentally withdrawn the charges against all defendants at Guantanamo Bay facing trial, including Jawad and even Khalid Sheik Mohammed, the operational mastermind of the Sept. 11, 2001, attacks.

    Defense lawyers said the Office of Military Commissions, while creating new jury panels, took the additional step of re-referring all charges, which, they said, would return all cases to square one and require new arraignments.

    Peter Finn WaPo

    Looks like it was not an accident and Colonel Phol is either daring Congress to dissolve the Military Commission Act or trying to throw a wrench in Obama's plan to ultimately close Gitmo. In any case I do not think he is acting as a rogue holdout.

    How does this fit in? (none / 0) (#24)
    by jbindc on Thu Jan 29, 2009 at 01:00:31 PM EST
    Sec 4(c)(4) says:

    (4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

    Isn't the judge in this case promptly implementing a (future) disposition, as ordered by Sec 4(c)(4) in this case (as the judge's ruling only applies to Nashiri) by saying arraigning him will not preclude a review?

    No (none / 0) (#26)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:04:47 PM EST
    Section 4 is addressed to the task force, not to the military commissions, which is covered by Section 7.

    [ Parent ]
    That provision (none / 0) (#27)
    by eric on Thu Jan 29, 2009 at 01:10:58 PM EST
    comes under the "Operation of Review" section which describes the scope of the review.  It has nothing whatsoever to do with the halting of the proceedings.  The "review" is what is supposed to take place after the halting of the proceedings.

    [ Parent ]
    Ok, thanks (none / 0) (#28)
    by jbindc on Thu Jan 29, 2009 at 01:12:05 PM EST
    That's why I asked smarter people than me!

    [ Parent ]
    ahhh (none / 0) (#37)
    by jedimom on Thu Jan 29, 2009 at 01:39:00 PM EST
    oh thanks, ignore my question above too!

    [ Parent ]
    Next time I sue (none / 0) (#30)
    by eric on Thu Jan 29, 2009 at 01:20:49 PM EST
    someone after they get a stay from a Bankruptcy Court, I will try this excuse.

    It seems to me (none / 0) (#40)
    by Steve M on Thu Jan 29, 2009 at 01:43:11 PM EST
    that the Executive Order is directed to the Secretary of Defense, not to Judge Pohl.  Now, maybe that's a technicality and maybe it isn't, but I'm not sure that Judge Pohl has disobeyed anything just yet.

    A technicality indeed (none / 0) (#43)
    by Big Tent Democrat on Thu Jan 29, 2009 at 01:45:24 PM EST
    I suppose it is possible that Gates did not forward the order to military commission judges and order them to act accordingly, but it seems extremely far fetched to me.

    Judge Pohl sounds a bit out there on this one.

    I imagine this will be handled by Gates sending Pohl a direct order.

    [ Parent ]

    Well, if we know (none / 0) (#45)
    by eric on Thu Jan 29, 2009 at 01:48:10 PM EST
    about the executive order, certainly this judge does.  He is out there on this one.

    [ Parent ]
    Give Him a Direct Order . . . (none / 0) (#47)
    by Doc Rock on Thu Jan 29, 2009 at 01:59:06 PM EST
    . . . and then fire his ass after the Courts Martial.

    FWIW (none / 0) (#86)
    by squeaky on Thu Jan 29, 2009 at 03:50:40 PM EST
    Monday [12.15.08], Pohl presided at a pre-trial hearing in the case of an accused al Qaeda conspirator from Saudi Arabia, Ahmed Darbi, 33, and made no mention of his new assignment.

    He did, however, remark that change could come to the war court following the Jan. 20 inauguration of President-elect Barack Obama, who has pledged to close the Guantánamo prison camps.

    ''This court is aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings,'' he said, warning everyone to stay focused ``unless and until a competent authority tells us not to.'' [emphasis added]

    link

    I guess he does not consider (none / 0) (#87)
    by Big Tent Democrat on Thu Jan 29, 2009 at 03:52:41 PM EST
    Obama a competent authority then.

    [ Parent ]
    Yes (none / 0) (#88)
    by squeaky on Thu Jan 29, 2009 at 03:57:06 PM EST
    Is seems that is the implication.

    [ Parent ]
    Miltary Commissions Act (none / 0) (#90)
    by Doc Rock on Thu Jan 29, 2009 at 04:07:58 PM EST
    Aceions taken in the conduct of the court are not subject to being used in a Courts Martial action:

    "(e) Treatment of Rulings and Precedents-- The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter."  

    IMHO, this in no way releases any member from his obligations as a member of the military outside of the work within the charter of the commissions.

    I would argue (none / 0) (#92)
    by Big Tent Democrat on Thu Jan 29, 2009 at 04:09:38 PM EST
    you could make the case his actions were ultra vires.

    [ Parent ]
    Not that I'm a lawyer but (none / 0) (#93)
    by coast on Thu Jan 29, 2009 at 04:09:55 PM EST
    if the President has the ultimate authority over the tribunals, then why was his directive, discribed in most news stories as a request, addressed to the prosecutors and why did he request the prosecutors to only seek a 120 day stay?  Seems if he has the authority he could have been more direct and would not need to seek anything.  And why put a termination on it.  What if they can't go through all the materials in 120 days?  I think this is a little more complicated than the President simply saying stop.

    Because these were two different things (none / 0) (#94)
    by Big Tent Democrat on Thu Jan 29, 2009 at 04:16:05 PM EST
    On 1/20, Obama directed Gates to tell military prosecutors to move for a conitnunace.

    On 1/22, Obama issued an executive order halting the proceedings.

    The Media properly described both.

    Judge Pohl has chosen to defy the Executive Order AND deny the motion for a continuance. In fact, imo, the motion was mooted by Obama's executive order.

    [ Parent ]

    And I strongly disagree (none / 0) (#95)
    by Big Tent Democrat on Thu Jan 29, 2009 at 04:16:47 PM EST
    that this is not simple. It is incredibly simple.

    [ Parent ]
    Not trying to start anything BTD (none / 0) (#96)
    by coast on Thu Jan 29, 2009 at 04:22:24 PM EST
    like I said, I'm not a lawyer and I was just going by what I read.  As long as this guy gets to a trial I don't really care when it happens.

    [ Parent ]
    There will be no trial (none / 0) (#97)
    by Big Tent Democrat on Thu Jan 29, 2009 at 04:27:18 PM EST
    for at least 120 days.

    [ Parent ]
    Obama not qualified (none / 0) (#101)
    by mikey on Thu Jan 29, 2009 at 08:59:25 PM EST
    He didn't obey the order because he is an illegal POTUS. Obama is not Natural Born, so he is not qualifies under article 2 section 1. The military can disregard his orders.

    heh (none / 0) (#102)
    by andgarden on Thu Jan 29, 2009 at 10:11:50 PM EST


    [ Parent ]
    Give it to mikey. (none / 0) (#104)
    by weltec2 on Fri Jan 30, 2009 at 01:37:16 AM EST
    He'll eat anything.

    [ Parent ]
    Military Commission Judge Defies Obama Executive Order; Refuses To Halt Proceedings | 104 comments (104 topical)

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