Insubordination In the Pentagon?

The NYTimes story on the refusal of a military commissions judge to abide by President Obama's executive order halting all military commissions proceedings raises the level of importance of this situation. Indeed, the article raises some very worrisome possibilities:

[S]ome critics of the military commission system said the decision appeared to express the views of military officers who would like to complicate the Obama administration’s efforts to close Guantánamo and, possibly, abandon the military commission system.

Anthony D. Romero, the executive director of the American Civil Liberties Union, who has praised President Obama’s early actions on Guantánamo, said the ruling in the Nashiri case had raised questions about whether the Pentagon would resist the administration’s efforts.

[(Emphasis supplied.) More . . .]

. . . The effect of Colonel Pohl’s decision could be reversed by the chief Pentagon official for the military commission system, Susan J. Crawford. Lawyers said Thursday that she could dismiss the charges against Mr. Nashiri “without prejudice,” which would effectively remove the case from the judge, while clearing the way for prosecutors to file new charges in the future.

A military official said he expected such a decision from Ms. Crawford, who has broad powers over commission cases. But some military officials said it was difficult to predict what she would do. . . .

Pentagon officials appeared confused by Thursday’s development because many thought the system was essentially paused after Mr. Obama issued an executive order on Jan. 22 that directed immediate steps to assure that military commission cases “are halted.” A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, issued a statement that officials were reviewing Colonel Pohl’s decision. But the statement added, “We will be in compliance with the president’s orders regarding Guantánamo.”

(Emphasis supplied.) Well, right now, the Pentagon is NOT in compliance with the President's executive order and that is extremely troubling. Adding to the the problem:

Some of those who have criticized the president’s decision to turn sharply away from the Bush administration’s detention policies called Colonel Pohl’s decision encouraging. Kirk S. Lippold, the retired commander of the Cole, issued a statement saying that Mr. Obama’s order to close Guantánamo within a year had not considered the impact on the victims of terrorism. “Today’s decision,” the statement continued, “is a victory for the 17 families of the sailors who lost their lives on the U.S.S. Cole over eight years ago.”

It is in this context that I believe that President Obama is impelled to act in a way that publically rebukes Judge Pohl's insubordination. For it was Judge Pohl who said on January 15:

"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 supplied.) The President of the United States told the military "not to" in a January 22 executive order. Judge Pohl is defying his commander in chief. This is serious business now. Judge Pohl must be publically rebuked for not recognizing President Obama as his commander in chief and the authority over the military commissions, as provided for by the Military Commissions Act. His actions are outrageous and can not be allowed to stand. The implications could be enormous.

See also Andrew McCarthy at National review:

[W]hat we have here is a temper tantrum by a grandstanding judge. However inadvertently, Col. Pohl is just giving President Obama more reason to think there are better ways to deal with detainees than a system that denies abundantly sensible motions . . .

Speaking for me only

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    I'm sorry for victims but this really bothers me (5.00 / 2) (#9)
    by ruffian on Fri Jan 30, 2009 at 07:56:39 AM EST
    Some of those who have criticized the president's decision to turn sharply away from the Bush administration's detention policies called Colonel Pohl's decision encouraging. Kirk S. Lippold, the retired commander of the Cole, issued a statement saying that Mr. Obama's order to close Guantánamo within a year had not considered the impact on the victims of terrorism. "Today's decision," the statement continued, "is a victory for the 17 families of the sailors who lost their lives on the U.S.S. Cole over eight years ago."

    God forbid we have a rational discussion about our laws and policies. I'm sorry, but the families of the sailors on the Cole have no place int his discussion.

    No special place, I mean... (5.00 / 1) (#11)
    by ruffian on Fri Jan 30, 2009 at 07:57:26 AM EST
    you knopw ehat I mean. It's about the law, not their emotions, which understandably will never be assuaged.

    It's just more of that (5.00 / 2) (#12)
    by Militarytracy on Fri Jan 30, 2009 at 07:58:40 AM EST
    playing the patriotic song on the world's smallest violin.  If I had lost a family member on the Cole I would want to see justice done.  Nobody sees what happens at Gitmo.  How can there be any closure there?

    I disagree (5.00 / 1) (#13)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:58:42 AM EST
    Everyone has a place in the discussion.

    What my post is about is insubordination in the Pentagon. There is no room for discussing whether a military officer will follow the express order lawfully issued by his commander in chief.


    But they are trying to use the victims (none / 0) (#34)
    by ruffian on Fri Jan 30, 2009 at 09:23:53 AM EST
    to justify the insubordination. Maybe it is a valid part of the discussion, jsut my least favorite tactic.

    Clinton let himself be rolled by the military (5.00 / 1) (#35)
    by Radiowalla on Fri Jan 30, 2009 at 09:26:02 AM EST
    when he tried to reverse the ban on gays in the military.  He should have told all of those who objected that they had 24 hrs to submit their resignations.  He never truly established his authority and this weakened him for the rest of his tenure in office.  Plus it gave us the very lame policy of "don't ask, don't tell."

    I hope Obama will not make the same mistake.

    Indeed (none / 0) (#38)
    by andgarden on Fri Jan 30, 2009 at 09:39:06 AM EST
    Of course, WJC was also undermined by members of his own party in that instance.

    Mais oui! (none / 0) (#55)
    by Radiowalla on Fri Jan 30, 2009 at 10:44:33 AM EST
    Sam Nunn, for example.  We must never forget how Democrats like Feinstein, Nunn, Moynihan, etc., all chipped away at their president.   A cautionary tale for today's Democratic president.

    Bring it on (1.00 / 1) (#3)
    by mmc9431 on Fri Jan 30, 2009 at 07:43:34 AM EST
    Let the fire storm happen. The right will make hay out this regardless. The Obama administration will be weakened if he tries to finesse this. He needs to show the Pentagon and the world that he is the commander in chief. This is just the first battle in unraveling many of the failed Bush policies. Wait until his plan for Iraq is unvailed. (Hopefully he does have a plan).

    He Needs to Fire Pohl. (none / 0) (#18)
    by msaroff on Fri Jan 30, 2009 at 08:30:48 AM EST
    Because this is insubordination.

    Not publicly rebuke....Fire....And possibly prosecute him.


    hmmm (none / 0) (#39)
    by Fabian on Fri Jan 30, 2009 at 09:39:55 AM EST
    Another "We'll see." moment.

    Yes.  It is a serious test for Obama.
    But - Obama has not severely sanctioned anyone to date.

    I have no prediction.  


    Right vs. Left (none / 0) (#56)
    by STLDeb on Fri Jan 30, 2009 at 10:53:09 AM EST
    Okay, I'm from the "right" as you say & even though I'm from the "other side" of the political aisle, Obama is my president.  I will respect him and the office he holds.  I will agree or disagree with his policies.

    That being said ... is this insubordination?  I truly guess that would depend on which side of the political aisle I guess you are on.

    Okay, so now can you tell me why it was not insubordination when workers from the pentagon, CIA, FBI, etc. would out the former Bush administration on their tactics.  Even though, in other people's opinions, they were unlawful (but that discussion is for another day).  Why was THAT not insubordination when they were defying the commander-in-chief (Bush).

    I'm just curious why it's okay for one to defy the president but not the other way around.  I'm not being uppity, I truly want to know.

    Thanks for hearing me out!


    It does not depend on what side of the aisle (none / 0) (#57)
    by Big Tent Democrat on Fri Jan 30, 2009 at 10:56:04 AM EST
    you are sitting on.

    Jules Crittenden wonders what some on the Left who allegedly cheered dissent in the military will say about this.

    I never cheered "dissent" in the military. Indeed, I was extremely wary of both dissent and approval from the military.

    I was of the view that the military is there to carry out the policy of the Commander in Chief, within the parameters of Congressional restrictions.

    this is in no way an issue of "dissent" but of a failure to abide by an Executive Order of the President of the United States.


    Thank You (none / 0) (#59)
    by STLDeb on Fri Jan 30, 2009 at 10:59:42 AM EST
    Thank you for your quick response to my concern.

    I like to have smart, intelligent political discussions with people on opposite sides of the political spectrum than myself, but a lot of times they turn ugly right away.

    Thank you for your honest/heartfelt reply.


    And (none / 0) (#60)
    by jbindc on Fri Jan 30, 2009 at 11:16:07 AM EST
    POTUS is the Commander-in-Chief over the military, which means they have to follow orders or could face prosecution.  Civilians, like the FBI, could be fired, I suppose, but could not be prosecuted for speaking out against POTUS (unless state secrets were given out, I guess).

    Because, technically, (none / 0) (#58)
    by Radix on Fri Jan 30, 2009 at 10:56:45 AM EST
    even the CIC can't break the law or order others to do so.

    Here's the difference (none / 0) (#86)
    by nutnfiner on Fri Jan 30, 2009 at 01:54:42 PM EST
    To respond to your question, there is a bit of distinction between the actions of the people you cite, and this Judge.

    First, if people reveal information that is truly classified, they are subject to prosecution. If the information is not genuinely deserving of a national security classification, the people you cited, like other Americans, are entitled to their free speech rights.

    In this case, this is not about free speech. This is a Military Officer, sworn to obey orders, especially orders from the Commander-in-Chief. He is perfectly within his rights to disagree, and express that disagreement, but he is not entitled to act in disagreement with orders.

    This is the real difference here.


    Well (1.00 / 1) (#73)
    by squeaky on Fri Jan 30, 2009 at 01:09:37 PM EST
    At best, Col Pohl is trying to force Obama's hand to do away with the MCA, at worst he thinks Obama is not the legitimate POTUS.

    Either way Pohl is acting above his station. Both scenarios suggest that Pohl is not acting alone and a Military coup is being discussed by some that believe the country is in danger with Obama at the helm.

    Hard to even type "military coup" in the US, but that is the logical conclusion, imo.  

    Squeaky (5.00 / 1) (#81)
    by JohninNVA on Fri Jan 30, 2009 at 01:45:12 PM EST
    That is pure baloney.  I've served in the Marine Corps for 20+ years and have never heard talk of a coup.  We just don't do it.  Every President is temporary.  We serve the United States not a President, member of Congress, or political party.  We don't always agree with any President but "we" execute their lawful orders - period end of story.  Having said that, judges must apply the law as they believe it should be applied based on their experience and judgment.  They do it independently as that is the only way any legal system will work.

    Yeah (none / 0) (#84)
    by squeaky on Fri Jan 30, 2009 at 01:50:12 PM EST
    As I said it was hard to type. But considering that Col Pohl has already suggested that Obama may not be a legitimate POTUS, I expect that Pohl's opinion is not unique. The whole thing seems really strange to me.

    "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."

    COL Pohl (none / 0) (#87)
    by JohninNVA on Fri Jan 30, 2009 at 02:03:34 PM EST
    neither said or implied anything of the sort.  Anybody (maybe not anybody - we have our wackos too) in the military accepted President Obama as the legitimate President on January 20, 2009.  I have no doubt that if President Bush (or any other President) would have issued the same ruling under exactly the same circumstances.  Other judges have ruled that the interests of justice were best served by the 120 day continuance.  This judge ruled differently (probably because this case really hasn't even started yet) that's all.

    Huh? (none / 0) (#88)
    by squeaky on Fri Jan 30, 2009 at 02:11:43 PM EST
    Miami Herald and McClatchy has the quote. Do you think that it was a misquote?

    As far as I know Col Pohl did not correct the quote from Dec 15, 2008. when Pohl he became MCA gitmo judge.

    Not sure how you can say that Col Pohl never said that.


    Sorry, (none / 0) (#89)
    by JohninNVA on Fri Jan 30, 2009 at 02:20:18 PM EST
    I thought you were saying that by ruling on the continuance request in the way that he did he was implying that Pres. Obama was not legit.  Failure to read your entire post.

    Having said that, I believe you may be reading more into the quote than is really there.  Remember, on December 15, the competent authority was the Bush administration.  At that point the government had not told anyone to stop.  Had the Bush administration wanted to stop commissions they would have to do the same thing that the Obama administration will have to do in this case - withdraw charges.

    COL Pohl was only telling the parties at that particular hearing that the game was still on at that point so they needed to continue with that particular case.


    Ok (none / 0) (#92)
    by squeaky on Fri Jan 30, 2009 at 02:36:39 PM EST
    Well considering that someone told Col Pohl "not to", and Col Pohl said that he would stop once a "competent authority tells us not to", it would follow that Col Pohl does not think that Obama is a "competent authority".

    Considering that Obama's views were clear regarding closing Gitmo, and Pohl was talking about what would happen after Jan 20, I do not see how Col Pohl could be talking about anyone other than Obama, and his competence as POTUS.


    But (none / 0) (#96)
    by JohninNVA on Fri Jan 30, 2009 at 02:45:06 PM EST
    COL Pohl made that statement on 12/15/08 and Obama didn't become President until 1/20/09.  Competent authority at the time was Bush.  Obama policy positions - in that context, at that time - didn't matter.  At the end of the day though, the President can't simply just say STOP.  He has to withdraw the charges and never send anyone else before a military commission and/or get Congress to repeal the law.  The former is of course the fastest way to deal with the situation at hand.

    That requires some explication (none / 0) (#99)
    by Big Tent Democrat on Fri Jan 30, 2009 at 02:48:58 PM EST
    Pohl recognized bush was the competent authority on 12/15, but on 1/29 he does not recognize Obama as the competent authority?

    Explain that one to me please.


    It comes (none / 0) (#104)
    by JohninNVA on Fri Jan 30, 2009 at 02:58:16 PM EST
    back to the unlawful influence again.  Had the Bush admin decided to do the same that the Obama admin did, then the result would have been the same.  The difference of course is the Bush admin never ordered a halt.



    I do not follow this at all (none / 0) (#115)
    by Big Tent Democrat on Fri Jan 30, 2009 at 04:24:00 PM EST
    Are you saying the President and the SecDef can not order a halt to the military commission proceedings?

    If so, we are back to square one. I believe they clearly can.


    Hell (1.00 / 1) (#74)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:11:12 PM EST
    Andrew McCarthy, a staunch defender of the commissions, says this was grandstanding BS from Pohl.

    Which it obviously was.


    Wow (1.00 / 1) (#82)
    by squeaky on Fri Jan 30, 2009 at 01:46:42 PM EST
    That was not so easy to find, kudos for reading all that right wing crap..  I had not even heard of McCarthy before.

    I guess that if so many Military prosecutors could quietly resign in protest of BushCo's abysmal kangaroo court, Pohl,  can go out like a hero (in his own mind), in protest of the inevitable end to GItmo and the MCA.

    Although if Pohl was a staunch defender of Gitmo and the MCA I do not understand why McCarthy would call him out for throwing a temper tantrum. Is it that he just sees it as an empty gesture, albeit heroic?


    McCarthy is right (5.00 / 1) (#83)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:48:29 PM EST
    Obama will clearly be less disposed to leave these matters in Pohl's hands now.

    Fundamentally I agree with you (none / 0) (#1)
    by Molly Bloom on Fri Jan 30, 2009 at 07:34:52 AM EST
    A public rebuke will touchoff a firestorm by the right wing noise machine, however. How that is handled will be a big test as well.

    Text of Judge Pohl's decision? (none / 0) (#17)
    by Jacob Freeze on Fri Jan 30, 2009 at 08:30:15 AM EST
    Does anyone have a link to the text of Judge Pohl's decision?

    No (none / 0) (#20)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:34:40 AM EST
    but I have a link to the text of President Obama's executive order.

    It is pretty clear. What in the opinion from Pohl do you think he can say that will justify his defying the President's executive order?


    Text of Judge Pohl's decision? (none / 0) (#27)
    by Jacob Freeze on Fri Jan 30, 2009 at 08:48:44 AM EST
    Judge James Pohl has 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 his principled resistance to numerous abuses by the Bush administration is well-known to anyone with a serious interest in the trials at Guantanamo.

    Unlike most of the commenters on the first and second threads devoted to Judge Pohl's decision, I don't presume to know what a senior judge will write before I read it.

    It's still worth mentioning that the defendant's lawyers have not objected to Judge Pohl's decision.

    This might suggest to a minimally perceptive commenter that Judge Pohl's decision is not unfavorable to the defense.

    But we won't really know anything until somebody puts the text of the decision online.


    good to hear you defering so readily (none / 0) (#30)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:51:52 AM EST
    Perhaps you will regain your critical thinking skills some point in the future.

    BTW (none / 0) (#31)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:53:39 AM EST
    You got that wrong. the Defense counsel did not object to halting the proceedings.

    In lieu of Pohl's outrageous decision, they demanded the charges be dropped. that sounds like an objection to Judge Pohl's opinion to me.

    I also refer you to the statements from Pentagon spokesman Morrell and to the statements of ACLU head Romero. Perhaps you do not care for their disparagement of Pohl either.


    Do you suppose John Marshall, Oliver W. Holmes, (none / 0) (#53)
    by Molly Bloom on Fri Jan 30, 2009 at 10:32:19 AM EST
    Cardozo, Brandeis, Learned Hand (or his brother Augustus) to name just a few preeminent jurists, ever made a bad decision?

    Hyping Pohl's bio doesn't improve your case. Moreover, I have yet to see where you responded to BTD's central argument, that the MCA gives authority to issue the orders that were issued. Finally, Its my understanding that one possible conclusion is the government could dismiss without prejudice, allowing a new case to brought under a new and fairer system.


    Learned Hand and his "brother" Augustus (none / 0) (#66)
    by Jacob Freeze on Fri Jan 30, 2009 at 12:35:34 PM EST
    Judge Hand had one sister, Lydia, and no brothers; Judge Augustus Hand was his cousin.

    If you happen to know a little more about cases decided by Judge Learned Hand than you know about his family, maybe you could supply a few examples "bad decisions."

    But you would have to find a boatload of "bad decisions" by Learned Hand before I would dismiss his opinion without even reading it, as so many commenters on this issue have dismissed a decision by Judge James Pohl which none of them have ever read.


    Sheesh (none / 0) (#67)
    by Big Tent Democrat on Fri Jan 30, 2009 at 12:43:36 PM EST
    you win the pedant award today.

    google much? (none / 0) (#116)
    by Molly Bloom on Fri Jan 30, 2009 at 04:39:55 PM EST
    We're all "cousins!" (none / 0) (#119)
    by Jacob Freeze on Fri Jan 30, 2009 at 07:02:19 PM EST
    The Hands are just about the most famous family in the history of American law, with generation after generation of judges on the New York Supreme Court and federal appellate courts, so I didn't have to google to know Augustus wasn't Learned's brother, but why bother with fine distinctions on a thread where anybody who can spell "cat" feels free to insult a judicial decision that they haven't even read.  

    Maybe in your next post you can discuss some other famous relatives like Franklin Roosevelt's "brother" Teddy and Sam Adams "brothers" John and John Quincy and John Kennedy's "cousin" Bobby, because everything is really just a mishmash of whatever you want it to be.


    you are good at avoidence (none / 0) (#120)
    by Molly Bloom on Fri Jan 30, 2009 at 11:01:13 PM EST
    Right, and it will give the GOP (none / 0) (#2)
    by ThatOneVoter on Fri Jan 30, 2009 at 07:42:09 AM EST
    an excuse to stop playing "nice".

    As I understand the points of these comments (5.00 / 0) (#4)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:47:43 AM EST
    the belief is that the GOP will embrace military insubordination against the Commander in Chief.

    Well, I personally doubt they will.

    But that is less important than demanding the military respect the fact that the President of the United States is the Commander in Chief.

    I would also state that this is compelling evidence that the military can not be trusted on the issue of the detainees in Gitmo.

    this is compelling evidence that the military commissions simply are unacceptable as it contains judges like Pohl.


    How can you doubt that? They (none / 0) (#5)
    by ThatOneVoter on Fri Jan 30, 2009 at 07:49:18 AM EST
    already did under Clinton.. to a lesser degree, but to a level that would not have been tolerated for a Republican. Powell is the example I have in mind.

    Certainly (5.00 / 4) (#7)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:51:51 AM EST
    And Clinton made a mistake in not confronting the issue immediately.

    Let's hope Obama does not repeat Clinton's mistake.


    Yes, and (none / 0) (#68)
    by KeysDan on Fri Jan 30, 2009 at 12:55:33 PM EST
    President Clinton continued the mistake, in my view, by asking Powell to postpone the date of his previously announced retirement since he, apparently, was so needed.

    This is why a President (none / 0) (#6)
    by Militarytracy on Fri Jan 30, 2009 at 07:49:52 AM EST
    needs to NEVER tell our military that they can decide something for themselves! My God Man, and the Pentagon is not full of gentle creatures with mild natures. He needs to get his girl's a Pit Bull and then learn how to manage that thing.  You give children choices and junkyard dogs orders and consequences.

    To be clear (5.00 / 0) (#8)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:52:44 AM EST
    Obama did not tell the military to decide this issue by itself.

    The PResident ORDERED a halt of the military commission proceedings.

    His order was, in the parlance, crystal clear.


    Sorry I wasn't clearer (none / 0) (#10)
    by Militarytracy on Fri Jan 30, 2009 at 07:56:47 AM EST
    I was referring to what Obama had said about the issue of DADT.  Huge misstep in my opinion.  In many ways the stronger personalites within the service hear something like that and then they begin to run a tad wild with their own pet schemes because they have a nice pushover babysitter.  It is only my opinion but Obama must never again allow anyone to think that the military is going to decide something for themelves.  You just can't do it.

    Ok (none / 0) (#14)
    by Big Tent Democrat on Fri Jan 30, 2009 at 07:59:27 AM EST
    In defense of pit bulls (none / 0) (#41)
    by Fabian on Fri Jan 30, 2009 at 09:43:50 AM EST
    I would suggest the lesser known livestock guardian dog for a large, powerful animal that needs to be carefully managed lest it appoint itself boss.

    Well, Biden DID say Obama would be tested by (none / 0) (#15)
    by steviez314 on Fri Jan 30, 2009 at 08:18:41 AM EST
    enemies early.

    I just don't think he meant enemies of the civilian chain of command at the Pentagon.

    Not Insubordination (none / 0) (#16)
    by JohninNVA on Fri Jan 30, 2009 at 08:28:38 AM EST
    I have been involved in Military Justice for 20+ years now and can tell you that what Judge Pohl did was NOT insubordination.  Military Judges tell the government no all the time.  When they drop charges against an accused he/she is telling the government (and thus ultimately the President) no.  The same applies to government requests to use certain evidence which are denied.

    In the case of Nashiri, the government (prosecutors as opposed to the government in the Presidential sense) requested a 120 day continuance (as they were directed to do) in order to give the new administration time to review their options.  Competing against this request is Nashiri's congressionally bestowed right to a speedy trial.  

    According to the MCA, the government has 30 days to arraign an accused after charges have been referred (approved by Susan Crawford) by the convening authority.  The government then has 120 days to bring the accused to full trial.  This of course doesn't take into account any approved continuances.  There will likely be many given that the case was referred capital and would likely be a capital case no matter which forum Nashiri is eventually tried in.

    The administration is by no means backed into a corner at this point.  The simple solution is to order Judge Crawford to withdraw the charges.  This would be a lawful order which Crawford must obey.  The government can NEVER give a military judge a lawful order to grant or deny a continuance.  Once a case is before a military judge be it court-martial or military commission the judge decides how a case will proceed.  If anyone such as a commanding officer (commander in chief in this case) tries to direct a military judge to do (or not do) something in a case then you have what is called unlawful (sometimes undue) command influence.

    The remedy here is for Judge Crawford to withdraw the case.  This would ensure that the case is no longer before the judge thus giving the new administration as much time as it needs to decide what they want to do.

    A good example of insubordination would be if President Obama ordered a military commander to deploy or redeploy (say from Iraq) and the commander refused.  A military judge not abiding by the command's wishes is not.

    It seems to me (none / 0) (#19)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:33:18 AM EST
    you are ignoring the fact that the MCA is not the creature of the UCMJ.

    Under the MCA, the President has the power to order the abolition of the military commissions. given that fact, the President clearly has the power to order the military commission proceedings halted.

    It seems to me that your beef is with the MCA, not with my analysis.


    Actually (none / 0) (#22)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:39:40 AM EST
    Reviewing the UCMJ, it seems to me that it is very arguable that the President can order that courts martial be abolished and proceeding therein halted.

    I am now even more perplexed by Judge Pohl's decision.


    The president (none / 0) (#24)
    by JohninNVA on Fri Jan 30, 2009 at 08:41:21 AM EST
    didn't abolish the military commission.  He only ordered that they be halted for 120 days.  Had he said "we're done with military commissions" then that would be different.  

    My beef is actually with your analysis.  The manual for military commissions is cut and pasted (with a few changes) from the Manual for Courts-Martial.  The two are actually more alike (there are several BIG differences of course) than most people know.  Mundane things such continuances and other case administration issues are no different.


    your argument is (none / 0) (#25)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:44:00 AM EST
    the President CAN abolish the military commissions, but it not empowered to halt proceedings for 120 days. that seems a ludicrous view to me.

    Indeed, some in the Pentagon seem to share my view:

    "Geoff Morrell, another Pentagon spokesman, told reporters that there were "no ifs, ands or buts" about adhering to the president's executive order and that there would "be no proceedings continuing down at Gitmo with military commissions."

    "The bottom line is, we all work for the president of the United States in this chain of command, and he has signed an executive order which has made abundantly clear that until these reviews are done all of this is on hiatus," Morrell said."

    Morell gets it right imo. and you have it wrong. We will soon find out I suppose.


    It seems to me (5.00 / 1) (#33)
    by Steve M on Fri Jan 30, 2009 at 09:15:11 AM EST
    that you are not treating this argument with enough seriousness.  Consider how cautious the White House has been in its statements thus far.  They may have a good reason aside from timidity.

    The power to create and destroy a court does not necessarily imply that all lesser powers exist as well.  Congress has the power to create and destroy the lesser federal courts, but certainly it cannot order a continuance in a specific proceeding.  That's how we can claim to have an independent judiciary notwithstanding that a separate branch of government has the power to create and destroy the courts.

    By the same token, ordinary courts-martial exist by order of the convening authority and can be abolished at any time by that same convening authority.  But the convening authority cannot interfere in ongoing proceedings; its sole recourse is to terminate the court-martial altogether if it chooses.

    The comment above argued that the MCA tribunals are set up exactly like ordinary courts-martial, only with the President/Secretary of Defense in the role of convening authority.  I don't know enough to confirm or reject that argument.  But I'd take it a step further - it seems to me that if the MCA tribunals were set up differently from regular military tribunals, if the convening authority were given plenary power to interfere in proceedings, order continuances, and the like, then the MCA tribunals would violate the Geneva Conventions pursuant to the Supreme Court's ruling in Hamdan.  So I suspect the commentor is correct that the MCA tribunals simply mimic the procedures for ordinary military tribunals.

    Obama has some pretty decent lawyers in that there White House.  Maybe the reason they say only "we're reviewing our options" is that they realize the situation is more complicated than just "we've issued an order, now follow it."


    Not buying this one bit (none / 0) (#36)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:30:21 AM EST
    Your analogy to an Article III court is particularly off base.

    that is the whole point. this is NOT an Article III court.


    Sure (none / 0) (#40)
    by Steve M on Fri Jan 30, 2009 at 09:41:22 AM EST
    so how about the analogy to ordinary courts-martial, then?

    My point about Congress was merely intended to illustrate a preliminary point, not to set forth the entire argument.  You can tell because my post continues on after that point.

    Or, we could go at this another way.  You contend that the President has complete authority over the military tribunals because they are Article II courts.  Do you think he has the authority to order a tribunal to find the defendant guilty?  Do you think he has authority to order a tribunal to grant or deny a particular motion?


    I think it is clear that (none / 0) (#43)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:47:51 AM EST
    the President can absolutely suspend a court martial proceeding.

    Of course (none / 0) (#44)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:48:41 AM EST
    that never happens.

    but that does not mean the President can not do it.


    to continue (none / 0) (#50)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:55:51 AM EST
    I think the President can not order a guilty finding. that violates the "influence" prohibitions.

    I do think the President can utterly disregard a guilty finding under the MCA.

    but these are all red herrings.

    We all accept the President can abolish these military commissions.

    But some of you argue that the President can not suspend the military commissions.

    That seems an absurdity to me.


    Well (none / 0) (#52)
    by Steve M on Fri Jan 30, 2009 at 10:28:00 AM EST
    If I were tasked by the White House with finding the right answer here, I think the process would be pretty straightforward.

    I would look at the system of regularly constituted courts-martial for precedent, and I would ascertain whether the convening authority is generally acknowledged to have the power to suspend ordinary courts-martial without dissolving them altogether.

    If they do have that power, that seems pretty dispositive to me.

    If they don't have that power, then it would be difficult to argue the President has greater power over MCA tribunals than the convening authority has over ordinary courts-martial, considering the MCA was drafted with the intent of creating regularly constituted tribunals that would not violate the Geneva Conventions.

    If the situation has never come up before, in the context of regular courts-martial, I would be mighty surprised.


    This is a strange view of the matter (none / 0) (#54)
    by Big Tent Democrat on Fri Jan 30, 2009 at 10:36:37 AM EST
    to me.

    You write "If they don't have that power, then it would be difficult to argue the President has greater power over MCA tribunals than the convening authority has over ordinary courts-martial, considering the MCA was drafted with the intent of creating regularly constituted tribunals that would not violate the Geneva Conventions."

    It would be incredibly easy to argue. Here's why. Unlike the UCMJ, which grants convening authority to many figures beyond the President, including commanding officers, the MCA limits convening authority to the President, and persons he designates.

    Moreover, while the UCMJ actually creates military courts, the MCA merely provides the President the power to convene military commissions. The differences are quite clear.

    But I would go even further. As commander in chief of the armed forces, the President has absolute authority over military personnel, subject of course, to express regulations enacted by the Congress.

    The Congress, as far as I know, has not restricted the President's power to suspend or forbid courts martial.

    Someone needs to explain to me on what basis the President is prohibited from suspending courts martial.

    Should the President do that? Of course not. can he do it? I think so.


    Non-expert opinion (none / 0) (#65)
    by gyrfalcon on Fri Jan 30, 2009 at 11:58:53 AM EST
    Deductive reasoning, which I readily admit often doesn't have much relevance to legal matters, tells me two things militate against BTD's very stark and black-and-white view of the matter.

    One is, as Steve M points out, the response from the Obama people to this has been very muted.  I watched Gibbs's press briefing yesterday, and when a reporter brought up the question with some alarm, Gibbs was entirely unruffled and basically shrugged it off with a bit of puzzlement at the reporter's tone.  That tells me actions like this judge's were entirely anticipated and they have other options available to deal with them.

    Secondly, the fact that there's quite a detailed discussion going on back and forth here among a few knowledgeable people says to me the issue is not so cut-and-dried.

    Judge whatshisname is no nincompoop.  He clearly believes he's acting within his legal authority.  And the administration is heavily loaded with smart lawyers and plenty of advice from military types.  It's inconceivable that they haven't been having this same discussion about what the military judges' authority is and isn't.

    They would have liked to suspend all the proceedings with the one executive order, but surely realized there would be some cases where the judges would disagree and they would have to decide on a case-by-case basis whether to pull the next trigger and withdraw the complaint altogether and stop individual proceedings that way.

    My reasonably informed layman's conclusion is that while the Obama people would have preferred the judge suspend the proceedings, they do consider his actions within his authority and will stop that proceeding -- if they want to -- by withdrawing the case or acting in some other direct way.

    The administration's next move on this, obviously, will tell the tale.


    Its not that (none / 0) (#69)
    by JohninNVA on Fri Jan 30, 2009 at 01:02:42 PM EST
    he cannot suspend.  He cannot order a judge to suspend.  His avenue to directly suspending the proceedings would have been to or that the charges be withdrawn until such time as he decides how to move forward.  He may end up withdrawing the charges in Nashiri and if he decides not to hold Military Commissions at all he will certainly have to withdraw the charges.  

    In the instant cases the prosecution only asked for a continuance for the pending cases.  The prosecution does not even have the authority to withdraw the charges.  Only the Convening Authority, Secretary of Defense or the President have that authority.


    then what the hell are we arguing about? (5.00 / 1) (#70)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:05:39 PM EST
    The Executive Order stated in express terms that the military commissions proceedings were halted.

    He did not tell Judge Pohl to halt them. He halted them.

    That's my basic point.


    The order was (none / 0) (#94)
    by JohninNVA on Fri Jan 30, 2009 at 02:39:22 PM EST
    not to the judge (unlawful influence - ground already well trodden) it was to the Secretary of Defense.  In carrying out the President's executive order the Secretary told the prosecutors to seek a continuance.  Seek doesn't always mean find.

    this is incorrect (none / 0) (#95)
    by Big Tent Democrat on Fri Jan 30, 2009 at 02:42:07 PM EST
    The timeline was that on January 20, the President directed the SecDef to seek continuances.

    Two days later, the Executive Order was issued.

    I think your better argument is that Gates did not take the necessary steps to halt the proceedings.


    As for your argument that the MCA (none / 0) (#46)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:49:46 AM EST
    violated the Geneva convention, no argument from me.

    ACLU's Romero also makes this point (none / 0) (#28)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:49:12 AM EST
    "Judge Pohl's decision to move forward despite a clear statement from the president also raises questions about Secretary of Defense Gates -- is he the 'new Gates' or is he the same old Gates under a new president?" ACLU Executive Director Anthony Romero said. "Secretary Gates has the power to stop the military commissions and ought to follow his new boss' directives."

    Do you believe Romero is wrong when he says this?


    Mr. Romero (none / 0) (#71)
    by JohninNVA on Fri Jan 30, 2009 at 01:06:05 PM EST
    is correct in so much as Secretary Gates has the power to stop the proceedings by withdrawing the charges.  Mr. Romero I know for a fact knows the MCA forward and backward and knows that no one can order the judge to rule on a continuance request in one way or another.

    the continuance request was mooted (none / 0) (#72)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:07:43 PM EST
    by the Executive Order.

    Mr. Morrell's comments (none / 0) (#32)
    by JohninNVA on Fri Jan 30, 2009 at 09:07:31 AM EST
    show either a lack of understanding of how the military justice system works or possibly knowledge that the charges will be withdrawn and brought again later in this or another forum.  I don't know anything about his background so I won't hazard a guess as to which it is.  I'll give him the benefit of the doubt that it is the latter.

    That is the correct way to handle this situation.  The government (big G government) doesn't lose anything in Nashiri's case by withdrawing charges without prejudice.  Nashiri hasn't even been arraigned yet.  In the 9/11 case or Khadr case (and a few others) there is a great deal to lose by withdrawing charges.

    A withdrawal of charges has the effect of putting the case back to square 1 which is where Nashiri is at anyway.  Cases like the 9/11 case, Khadr, or Jawad have had all kinds of rulings as to which statements can and can't be used, 9/11 accused have all claimed pride in the attacks, Jawad even has a ruling that he was tortured.  If the charges are withdrawn in those cases then all of that goes away.


    The correct way to handle this NOW (none / 0) (#37)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:31:44 AM EST
    is to publicly, either through appeal, or by direct order, overturn Judge Pohl's actions.

    He has acted in a way that is indefensible and has undermined the C-i-C's authority.

    Perhaps the best way WOULD have been what you suggest. It no longer is.


    The bottom line is (none / 0) (#45)
    by JohninNVA on Fri Jan 30, 2009 at 09:49:40 AM EST
    the government CANNOT order Judge Pohl to reverse his decision for the reasons I delineated in my comments below.

    I disagree (none / 0) (#51)
    by Big Tent Democrat on Fri Jan 30, 2009 at 10:01:29 AM EST
    in the sense that the President can order that Judge Pohl's decision was a nullity as the President's Executive Order halted all proceedings by the military commissions.

    As such, Judge Pohl's order is without authority and is thus as if it never happened.

    Now, what would happen if the President did that? An interesting question no? What power would Judge Pohl have to order that the government go forward with the arraignment?

    Of course, if Pohl refuses to retract his order, it can be appealed and reversed.  Or the government can merely withdraw the charges, rendering Pohl's order moot.

    My suggestion here is that Pohl's actions are dangerous and truly wrongheaded, even if I accept your argument, which I do not, that the President can not order the suspension of the military commission proceedings.

    His fitness now is in grave doubt in my mind.

    In addition, as the article I link to in the post makes clear, it was not made in a vacuum. It is now perceived as part of PEntagon resistence to duly issued order by the Commander in Chief.

    In these circumstances, I believe a rebuke of some kind is necessary - be it through an appeals court or by other manner.  


    Actually (none / 0) (#75)
    by JohninNVA on Fri Jan 30, 2009 at 01:12:42 PM EST
    Judge Pohl's order cannot be appealed.  Only an order that could end the case (throw the charges out) can be appealed at this stage of the game.  

    If Judge Pohl refuses to reverse his own order then the hearing is a go.  This forces the government into a position where they either must withdraw the charges or go to the hearing.  My guess is we'll see a withdrawal very soon given that Nashiri's arraignment is scheduled for Feb 6 down in GTMO.


    Then we have a problem (none / 0) (#79)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:35:19 PM EST
    and Pohl may have guaranteed himself a public rebuke.

    It won't (none / 0) (#85)
    by JohninNVA on Fri Jan 30, 2009 at 01:51:53 PM EST
    come to that.  I doubt with all that is going on in the world that the new administration is itching for a fight over this.  Especially when the charges can withdrawn at no harm to the government simply by the President (or his designee) making a phone call to Judge Crawford.

    If they publicly rebuke a judge then the administration would very publicly violate the MCA.  Why go there even if there is no real sanction that the administration would suffer.  Publicly violating the MCA makes the current administration look no better than the previous administration (admittedly on a different level) when it comes to following the law.


    We will see I suppose (none / 0) (#102)
    by Big Tent Democrat on Fri Jan 30, 2009 at 02:52:39 PM EST
    There are two competing headlines -

    1 "Obama Drops Charges against 9/11 terrorist"

    2 "Obama Overrules Gitmo Judge"

    I am thinking 2 is the more palatable one.


    There is (none / 0) (#103)
    by JohninNVA on Fri Jan 30, 2009 at 02:54:36 PM EST
    a third possibility.  Palatability notwithstanding:

    Obama resumes Military Commissions under new rules


    But that does not solve (none / 0) (#105)
    by Big Tent Democrat on Fri Jan 30, 2009 at 02:58:33 PM EST
    the 120 suspension issue.

    As it stands now, Pohl's order requires that the detainee by arraigned on February 9 (if I have the date correct).

    If that occurs, Obama's executive order will be violated.

    I suppose the real number 3, and maybe this is what you meant, is that Obama rescind his executive order on halting all proceeding before the military commissions.


    I guess (none / 0) (#107)
    by JohninNVA on Fri Jan 30, 2009 at 03:04:48 PM EST
    you could call it rescinding - modification is probably better.  That is what I meant yes.  He could bring back new and improved commissions.  

    I'm not sure if the date is 6 or 9 Feb but that is neither here nor there.  The Obama admin won't let the EO be violated.  They'll just have the Convening Authority withdraw the charges without prejudice (meaning the charges can be brought back later) in the next few days.  The admin will surely be very careful to point out that the case is not being thrown out - only reviewed.


    That brings us to headline 1 (none / 0) (#108)
    by Big Tent Democrat on Fri Jan 30, 2009 at 03:07:10 PM EST
    "Obama Drops Charges against 9/11 terrorist"

    Cole bombing (none / 0) (#109)
    by JohninNVA on Fri Jan 30, 2009 at 03:11:15 PM EST
    terrorist but I get your point.  They will have to be very careful about how they explain their decision.  I have no doubt that they will.   They will have to say early and often that the case is NOT going way and that charges will come back in one forum or another but the interests of justice dictate that we (the Obama admin) review how to best proceed with this and all cases.

    They'll take some flack yes but that is going to happen no matter what they do.


    Sort of makes the point (none / 0) (#110)
    by Big Tent Democrat on Fri Jan 30, 2009 at 03:13:47 PM EST
    don't you think, that Judge Pohl's ruling was intemperate at best no?

    a 4th possibility: (none / 0) (#121)
    by cpinva on Sat Jan 31, 2009 at 03:40:14 AM EST
    col. pohl, having disobeyed a lawful order of his CO, is arrested and subject to court martial, for insubordination.

    col. pohl, as does every other officer in the US military, serves at the pleasure of the President, the CiC. as such, he can be fired at any time, for pretty much any reason. insubordination would normally be such a reason.

    unless col. pohl is saying the pres.' executive order is not legal, i think he's hoist on his own petard.


    cpinva (none / 0) (#122)
    by JohninNVA on Sat Jan 31, 2009 at 08:01:45 AM EST
    You really need to read all of the comments up thread.  A judge, even a military judge cannot be ordered to do anything regarding a specific case.  Its called unlawful influence when a commanding officer or even the President does that.  There are several laws on the books, the MCA applies directly here, which prevent that.

    Addendum (none / 0) (#21)
    by JohninNVA on Fri Jan 30, 2009 at 08:36:05 AM EST
    This may not be the last time we have this situation.  There are currently 21 persons who have been referred to Military Commission.  Military Judges have only granted continuances for six people (5 9/11 Conspirators and Omar Khadr) and denied  the request for 1 (Nashiri).  That means we can possibly see judges deny continuance requests in 14 more cases.  We'll see.

    Precisely why (5.00 / 1) (#23)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:41:17 AM EST
    the President's authority, under the MCA, must be affirmed now.

    I will go further, this situation makes clear that military commission judges are not capable of properly behaving and following an exrpess executive order.

    they can not be trusted on this.

    These detainees will have to go to civilian courts.


    Unlawful command influence (none / 0) (#42)
    by JohninNVA on Fri Jan 30, 2009 at 09:47:29 AM EST
    If the government tries to order a military judge to do something then it is called Unlawful Influence or Unlawful Command Influence.  Judges, even Military Judges are independent and apply the law in the manner that they believe it ought to be applied taking into consideration things like precedents.

    On page II-4 the Manual for Courts-Martial states:

    Rule 104. Unlawful command influence
    (a) General prohibitions.
    (1) Convening authorities and commanders. No conve ning authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings.

    On page II-8 of the Manual for Military Commissions states:

    (a) General Prohibitions

    (1) Convening Authorities.  No authority convening a military commission under the M.C.A. may censure, reprimand, or adminish the military commission, or any member , military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or his functions or in the conduct of the proceedings.


    Of course it is (none / 0) (#47)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:51:06 AM EST
    since the "influence" here is an order that the proceedings are suspended, then that is inoperative.

    My gawd, the President can abolish the proceeding, but can not suspend it is the argument you are forwarding.

    It strikes me as absurd. Is there some definitive case law you can point to on this?


    On its face (none / 0) (#76)
    by JohninNVA on Fri Jan 30, 2009 at 01:15:19 PM EST
    it does look absurd but remember the judge is only ruling on the government's request for a continuance and its effect on the accused's right to a speedy trial.  He is not ruling on whether or not the President can or cannot suspend the proceedings.

    I find it hard to accept (none / 0) (#78)
    by Big Tent Democrat on Fri Jan 30, 2009 at 01:34:17 PM EST
    that Judge Pohl was unaware of the executive order.

    The President (none / 0) (#48)
    by JohninNVA on Fri Jan 30, 2009 at 09:51:13 AM EST
    is a convening authority.  He (actually his predecessor) has delegated his authority to Susan Crawford but he remains a convening authority.

    I know (none / 0) (#49)
    by Big Tent Democrat on Fri Jan 30, 2009 at 09:53:34 AM EST
    Indeed, Crawford's power as a convening authority is solely through delegation of convening authority power by the President, thorugh the Secretary of Defense.

    There is no independent convening authority in the MCA, in contrast to the UCMJ which provides such power to person such as commanding officers.

    the only power to convene belongs to the President and the SecDef, and their delegated reps.


    In Courts-Martial (none / 0) (#77)
    by JohninNVA on Fri Jan 30, 2009 at 01:21:15 PM EST
    there is some independence in so much as by virtue of their position as Commanding Officer (assuming they pay-grade O-5 or above (usually)), convening authorities have the authority to convene courts-martial.

    That said, superior commanding officer always retains jurisdiction to "take" the case away from a lower level commander and handle the case as he/she sees fit.  For example, because General Petraeus is General Odierno's commander, Petraeus would have the authority to take a case out of Odierno's hands if he (Petraeus) wants to.  That scenario probably wouldn't happen in real life but the authority is there.


    To wit (none / 0) (#100)
    by Big Tent Democrat on Fri Jan 30, 2009 at 02:50:33 PM EST
    Obama could take the case away from Pohl. It seems to me that he may have to given this development.

    Is this in his capacity as a Judge (none / 0) (#26)
    by plutosdad on Fri Jan 30, 2009 at 08:47:40 AM EST
    I was under the impression the executive could not "order" the judicial branch to do anything at all, including stop trials. So I wonder if the judges in this case - even though they are in the military - are bound to follow the President's decision. At the most he could order the prosecutors to ask for stays.

    I mean, I'm sure their own superior officers could not order them to do something, they are the judge.

    Now how that applies outside the courtoom I have no idea, I'm not a lawyer just thinking out loud.

    Military commissions are not part (none / 0) (#29)
    by Big Tent Democrat on Fri Jan 30, 2009 at 08:50:29 AM EST
    of the Judicial Branch.

    They are subject to the authority of the President of the United States.

    These are not Article III courts. hell, they are not even Article I courts.

    They are Article II "courts."


    "Insubordination"? Or merely duty? (none / 0) (#61)
    by Hale Adams on Fri Jan 30, 2009 at 11:34:24 AM EST
    First off, I am not a lawyer.

    But I was an Army officer once upon a time, and I still remember how I took an oath to, among other things, obey the lawful orders of those placed in authority over me, and to protect and defend the Constitution of the United States against all enemies, foreign and domestic.

    So, is President Obama's directive to delay the trials of these combatants a lawful order?  JohnInVA says President Obama's directive is not a lawful order, as the President, or any other person in the judges' chain-of-command cannot order a delay.  Other commenters assert that a power to abolish includes a power to delay.  Not so-- it is merely a power to abolish.  If there were a power to delay, don't you think that power would be explicitly granted in the law setting up these courts?

    Which leads me to a gripe I have with some of the people here.  Some people think that everything the federal government orders is, by definition, lawful.  It ain't so, which is why the military swears an oath to the Constitution of the United States, not its government.

    Some of the more gung-ho pro-Obama, pro-big-government commenters here really ought to stop and think about something:  at what point does the federal government become a domestic enemy of the Constitution?

    I don't say we're at that point, or anywhere near it.  But any officer who takes his oath seriously has to ponder that question in his darker moments.

    Before we rush to condemn the court-martial judges for insubordination, stop and think about where they have sworn to place their loyalties:  not to any one man, or to any office, or to that collection of offices and officials called "the Government of the United States".  They've sworn allegiance to the the supreme law of the United States-- the Constitution-- and all the laws consistent with it.

    The court-martial judges are duty-bound to obey the law.  And if the law setting up these tribunals does not permit the President to order a delay, why castigate a judge for merely doing his duty and ignoring what is an unlawful order?  That the President has issued the unlawful order doesn't make it lawful.  (Unless one is a fan of Richard Nixon, I guess.)

    Folks, be thankful that these "insubordinate" judges are such sticklers for following the rules, however silly they seem.  It is thanks to these men that we have the Rule of Law in this country, not the Rule of Men.

    Hale Adams
    ex-1LT, AD, USAR
    Battery A, 1st Battalion, 65th Air Defense Artillery Reg't., 11th ADA Brigade
    Fort Bliss, Texas

    Interesting question (5.00 / 1) (#62)
    by Big Tent Democrat on Fri Jan 30, 2009 at 11:37:32 AM EST
    I hope Judge Pohl tells us if he thinks the President's executive order was unlawful.

    Colonel Pohl's opinion of the President's order (none / 0) (#63)
    by Hale Adams on Fri Jan 30, 2009 at 11:49:38 AM EST
    If he's smart, Big Tent Democrat, he won't.  Not because he's afraid of "heat"-- anyone who rises to the rank of colonel is no innocent when it comes to bureaucratic in-fighting.  It's just that any sensible officer stays the Hell out of politics, not only publicly, but often privately as well.  It's all part of the ethic one picks up when one serves in the military-- one's loyalty is to the Constitution and the country, not to any person or party.

    He crossed that bridge already (none / 0) (#64)
    by Big Tent Democrat on Fri Jan 30, 2009 at 11:55:34 AM EST
    I agree (none / 0) (#80)
    by JohninNVA on Fri Jan 30, 2009 at 01:36:47 PM EST
    with Hale here.  COL Pohl won't let his politics become known.  He is ruling strictly on his reading of the law.  Pasted below is the text from the manual for military commissions regarding continuances.

    The pertinent chapter of the manual can be found at http://www.defenselink.mil/news/d20080213rules.pdf on page II-58.

    (E) Continuances granted only in the interests of justice

    (i) The military judge shall grant a continuance or other departure from the requirements of this rule only upon finding that the interests of justice served by taking such action outweigh the best interests of both the public and the accused in a prompt trial of the

    (ii) No such period of delay resulting from a continuance granted by the military judge in accordance with paragraph (b)(4)(E)(i) shall be excludable unless the military judge sets forth, in the record of the case, either orally or in writing: (A) the military judge's
    reasons for finding that the interests of justice served by the granting of such continuance
    outweigh the best interests of both the public and the accused in a prompt trial of the accused,
    and (B) the identity of the party or parties responsible for the delay.


    Flipping the Bird At Rule Of Law (none / 0) (#90)
    by squeaky on Fri Jan 30, 2009 at 02:28:22 PM EST
    One of Col Pohl's defenders:
    "We shouldn't make policy decisions based on human rights and legal advocacy groups,'' retired U.S. Navy Cmdr. Kurt Lippold said in a telephone interview. "We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror -- or even more adversely impact the families who have already suffered loses as a result of the war."

    The issue is that Nashiri will walk, unless convicted in a kangaroo court, because he was tortured.

    Nashiri told a military board reviewing his status as an enemy combatant in 2007 that he had confessed to involvement in the Cole attack only because he'd been tortured.

    Under the current military commission structure, such a confession might be admissible, but it would certainly not be in a civilian or regular military court martial.

    It is quite arrogant and self serving that BushCo point the finger at others when it is their incompetence that has gotten us into many of the messes that we are in right now.

    Turns out that Lippold's is not quite taking responsibility for his own lapses:


    A Navy inquiry questioned whether Lippold had taken appropriate measures to prevent an attack on the vessel. No one was in the ship's command center when the suicide boat rammed into the Cole's side, there were no lookouts on deck, and no planning had been undertaken for such an eventuality. Lippold, however, was not disciplined and was allowed to keep his command.



    I would hardly (none / 0) (#91)
    by JohninNVA on Fri Jan 30, 2009 at 02:34:46 PM EST
    hold CMDR Lippold up as a defender of the Military Commission system or anything else for that matter.  Point is we don't know if Nashiri will walk if he is tried in Federal Court (not a guarantee in military commissions either) because the case isn't there.  I'm sure that the Obama administration is - or will be shortly - reviewing the evidence to determine if the case can be tried in a federal court.  We'll have to wait and see.

    True (none / 0) (#97)
    by squeaky on Fri Jan 30, 2009 at 02:45:37 PM EST
    Although, the evidence obtained under torture will not be admisable. Point is, that this is why the end run around rule of law was invented. So that people can be tortured and convicted on evidence extracted from a unreliable and sadistic practice.

    It is a slippery slope. In my mind jailing 1000 people and torturing them to get a few bad guys is criminal. The military should not have anything to do with these people, as these are standard crimes.

    The real politicization of this is moving it out of the hands of the criminal justice system and putting it into military hands under the umbrella of WOT.


    You make (none / 0) (#101)
    by JohninNVA on Fri Jan 30, 2009 at 02:51:44 PM EST
    a couple of assumptions.  You assume that the ONLY evidence are statements made by Nashiri as a result of torture.  The USS Cole was attacked on Oct 12, 2000.  Nashiri wasn't captured until after September 11, 2001 (and probably much later).  I know for a fact that the FBI and NCIS were investigating the bombing for almost a year after the attack.  It could well be that Nashiri can be prosecuted based solely on the evidence collected prior to Nashiri's capture.  Obviously, that information would not be tainted by torture.

    No (none / 0) (#106)
    by squeaky on Fri Jan 30, 2009 at 02:59:38 PM EST
    I did use the word "true", in response to your comment. The rest was qualification.

    If in fact there is evidence that would convict Nashiri, then it would follow that the torture part was just sadistic payback, in advance of sentencing.


    That may be. (none / 0) (#112)
    by JohninNVA on Fri Jan 30, 2009 at 03:16:07 PM EST
    There is also another explanation.  I'm not defending what was done but consider this.  Somebody, not the military or law enforcement, probably CIA, captured Nashiri.  They weren't worried about bringing him to trial they wanted information regarding any possible future attacks.  They didn't capture him to gather information for use in his trial.

    How they got the information may very well be the wrong way to do business (probably is) but they didn't do it to get him to confess to his crimes.  They wanted any info he had about future attacks so those attacks could be prevented.


    bozos (none / 0) (#93)
    by capcap on Fri Jan 30, 2009 at 02:36:51 PM EST
    as usual, the left has it all wrong.  They cannot comprehend the simple fact that there are people who want to kill us.  Also, they completely misunderstand the realities of military justice.  The fact that the military judge in this case disregards the "commander in chief's" desires, is a testament to the independence of the military judiciary.  Good for him!!!  Bad for those who want to release terrorists who will later kill us.  The left is overwhelmingly made up of unpatriotic twits who desire the end of civilization as we know it.

    Fine (none / 0) (#98)
    by squeaky on Fri Jan 30, 2009 at 02:47:26 PM EST
    Many want to kill, for various reasons. Good police work, the criminal justice system works much better.

    Big Tent, you underestimate Judge James Pohl. (none / 0) (#111)
    by Gerald USN Ret on Fri Jan 30, 2009 at 03:14:07 PM EST
    Judge Pohl has spend most of his adult life immersed in the military, and a good bit of it in military law.

    You on the other hand though a talented lawyer and obviously a prolific reader are making your assumptions on just a sprinkling of selected sentences.

    I think Judge Pohl is not disobeying a direct order.
    Note that distinction.  A "direct order."  That means he has not gotten the proper paperwork or direct verbal commands, from the proper authorities.  "The forms haven't been met."

    I would assume that no "signs, countersigns or codes" are needed in this instance, but still there are forms that need to be followed.

    The President himself a lawyer didn't do proper due diligence and follow the chain of command, but he is new and like the former President Bush seems to think Executive orders are like "God's will!"

    Now why didn't Judge Pohl take the easier though perhaps not correct path and blindly leap to follow the Executive order?  That is a good question, but I think that Judge Pohl has demonstrated in the past to the chagrin of the Bush Administration  that he will do what he thinks is right, not what is politically expedient.

    And yes, I believe that Judge Pohl doesn't expect to go much beyond 30 years in the military, and will retire with honor and a clear conscience much as many in the Pentagon did when they refused to go along with the Bush Administrations statements about how easy it would be to invade Iraq, and even give a Tax cut along the way.

    I finally will venture that Judge Pohl will never receive any explicit punishment but will be Retired by the end of Obama's first Administration, and if I see him at the club one day, I will talk to him about this, and trade tales about running headfirst into buzz saws when you knew you were right.

    Well (none / 0) (#113)
    by Steve M on Fri Jan 30, 2009 at 04:17:11 PM EST
    It seems to me that the President issued an order to the Secretary of Defense.  Not sure why you contend he didn't follow the chain of command.

    The President directed his SecDef (none / 0) (#114)
    by Big Tent Democrat on Fri Jan 30, 2009 at 04:21:53 PM EST
    to halt all commission proceedings.

    If his SecDef was deficient in carrying out that order, that is on his SecDef.

    And I must say it is tendentious beyond belief that Judge Pohl would act in the fashion he has, IF he was unaware of an order from the SecDef.

    IF the SecDef has to issue additional orders in order to make Judge Pohl see the obvious, shame on Judge Pohl, who has, imo, made an utter fool of himself.

    I know that if I were Obama I would not trust him again.


    Once again (none / 0) (#117)
    by JohninNVA on Fri Jan 30, 2009 at 05:34:14 PM EST
    neither the President or the SecDef can influence the military judge.  That is called unlawful influence.  Congress in the MCA said that NO ONE can influence a judge, commission member, or any of the lawyers.  That protection was put in there at the behest of Democratic lawmakers to ensure that the Bush administration didn't interfere.  That law is just as applicable to the Obama administration.  Their ONLY recourse besides letting the hearing go forward is to withdraw the charges without prejudice thereby setting the case back to square one.  No loss in this case given that it is at square one anyway.

    Apparently in Judge Pohl's case (none / 0) (#118)
    by Big Tent Democrat on Fri Jan 30, 2009 at 05:46:21 PM EST
    intelligence and common sense did not influence in this case either.