Colonel James Pohl, Chief Judge of the Military Commissions, on July 10, 2014 detailed the Air Force’s chief trial judge Col. Vance Spath to preside over the Nashiri capital case being prosecuted by military commission, thereby relieving himself of that duty. In his order, Pohl cited his reasons: ensuring continuity of the proceedings and avoiding scheduling conflicts with the 9/11 case, where Pohl sits as trial judge. At least one doubter has wondered whether—like Colonel Peter Brownback, who was terminated as chief presiding officer over the commissions when he displeased civilian higher-ups by dismissing a case—his hand was forced on this change. After all, Pohl recently caused quite a stir, directing the prosecution to produce to the defense a treasure trove of top secret CIA documents providing details of Nashiri’s imprisonment, interrogation and torture at secret black sites over four years, despite the government’s insistence that summaries would suffice. That scenario would be highly unlikely, however, given that Pohl will continue to preside over the 9/11 case, in which defense counsel have piggybacked on Nashiri’s motion by demanding the same CIA documents for their clients. Pohl naturally is expected to enter a similar order in that case. As though he foresaw the doubter’s question, however, Pohl stated in the order: “The detailing decision was made solely by me….”

In my Ebook My Week at Guantánamo’s War Court, I gave Pohl high marks for his fine judicial temperament, patience and evident fairness during that week, and that was before he courageously ordered that CIA family jewels be delivered to Nashiri’s counsel. Will Judge Spath deploy those qualities to the same extent, or will the diluted justice inherent in military commission prosecutions detailed in my book be further impaired because a lesser judge will preside? In response to my tweet (@CharlesRChurch1) to a former chief prosecutor at the war tribunals, Air Force Colonel (Ret’d) Morris Davis, he replied: “I’ve known (Spath) for years. Good guy, lots of courtroom experience.”

Though brief, that provides a measure of assurance. Let’s fervently hope that Spath’s performance compares favorably to Pohl’s.

What does a judge do when he’s presiding over the highest profile case at Guantanamo’s military commissions; the charges against all five defendants are based substantially on the same facts; the case has been dogged by delays, many of which relate to a single defendant; and he’s acutely aware that the survivors of the horrific attacks, and the blood relations of the many who died, feel painfully frustrated that no verdict has been rendered even though 13 years have dragged by since the crimes?

I am referring to the 9/11 case and Judge James Pohl, and he just dealt with that dilemma. He severed the charges against one of the defendants, Ramzi Binalshibh, charged with being a liaison between the aircraft hijackers and Al Qaeda’s leaders, according to a July 24, 2014 Washington Post piece.

Questions about Binalshibh’s mental competence had been raised years ago. But earlier this year, prosecutors asked to have him evaluated, after he repeatedly disrupted commission proceedings and had to be removed from the courtroom. Further, the FBI had interfered with his case by secretly interrogating two non-lawyer members of his defense team, triggering a potential conflict of interest between the accused and his lawyers. (See the prior Post on this page, “From Tragedy to Farce”).

Pohl’s order cited the need to find out whether Binalshibh has the mental competence to participate in a trial and to resolve whether he requires new counsel, on account of the FBI’s actions. And these matters are, in his view, “not expected to be completed in the near term.”
No doubt Pohl realized how heavy a price would be paid for his unusual decision. Now, in effect, he will have to try the same case twice, and Binalshibh’s trial will be delayed until, his lead counsel asserted, “a long time in the future.” Clearly, Pohl believes that accelerating the 9/11 trial is worth that price. Indeed, in an earlier action that also will expedite the 9/11 case, Pohl in his role as chief judge of the commissions recently replaced himself as presiding judge over the high profile al Nashiri prosecution, to avoid scheduling conflicts with the 9/11 matter.

I noted in a prior post the quoted title from a Miami Herald editorial on April 19, when it wrote about “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions. In that post I described how, as reported by the paper’s Carol Rosenberg, the FBI had, according to a lawyers for a defendant in the 9/11 case, tried “to turn a defense team security officer into a secret informant.” Then I promised to write soon about Judge Pohl’s order directed to the CIA, which—so far—the agency has refused to say whether it will honor.

It has long been known that Nashiri—the alleged author of the lethal attack in 2000 on the USS Cole, among the war crimes charged against him—was captured and spirited away by the CIA to secret black sites beginning in 2002. There he was interrogated and tortured, until he was transferred to Guantánamo in 2006, where he remains to this day. Only fragments about Nashiri’s torture are publicly known. Not much more than that he was waterboarded, and interrogated at the point of a revving power drill (while hooded and naked) and a racked pistol near his head. Most of the rest remains highly classified.

Yet his torture will have paramount importance during his trial in at least two regards. The Military Commissions Act of 2009 (unlike its 2006 predecessor and Bush’s 2002 Military Order governing the first version of the military commissions, which the U.S. Supreme Court found unlawful), precludes from admission into evidence any statement produced by torture or by cruel, inhuman or degrading treatment. And Brigadier General Mark Martins, the chief prosecutor, has declared that the government will not offer any such evidence. But Martins already has staked out a major loophole to this vow, whereby the prosecution may use statements originally produced by torture. A statement may become voluntary, he has argued, after the passage of time from torture, where the accused is questioned in a different location, perhaps by other interrogators. “The point that I reject and the law rejects,” he said, “is that there can be no voluntary statements following an instance of coercion.”

Further, if Nashiri is found guilty, his torture would become relevant to the sentence to be rendered, whether death or otherwise. That is, using his lead counsel’s terminology, evidence of torture would be adduced to seek mitigation of Nashiri’s punishment.

Hence, in one sense it’s no surprise that on April 14, 2014, Judge Pohl—after an in-chambers argument on account of the sensitivity of the matters discussed—directed that the prosecution provide (among other things):

1. A chronology identifying where Nashiri was detained (think black sites) from the time of his capture until his arrival at Guantánamo in September 2006;

2. All documents showing the conditions of Nashiri’s confinement, and Nashiri’s condition when transferred to other locations;

3. The identities of medical personnel and interrogators having direct and substantial contact with Nashiri;

4. SOPs and guidelines on handling, transporting, and interrogating high value detainees at or between various facilities (again, think black sites);

5. All statements from interrogators, summaries of interrogations, interrogation logs and interrogator notes of interrogations of Nashiri and his alleged co-conspirators;

6. Un-redacted copies of documents memorializing decisions on requests to employ Enhanced Interrogation Techniques on the accused and all alleged co-conspirators.

Since the CIA undoubtedly is the repository for many if not all of these documents—after all, the agency operated the black sites—newspaper headlines have proclaimed that the order was directed to the CIA, not to the Prosecution in Nashiri’s case. See, for example, the April 17 article by the Miami Herald’s Carol Rosenberg, titled “Guantánamo judge to CIA: Disclose ‘black site’ details to USS Cole defense lawyers,” which points out that “the order sets the stage for a showdown between the CIA and a military judge,” should the agency refuse to turn the documents over. One person who had read the order before its release told Rosenberg: “It’s a nuclear bomb that may shut down the case,” because it covers so many of the agency’s closely guarded secrets. Lead defense counsel Richard Kammen stated: “We note that the CIA has lied to at least three federal courts, the 9/11 Commission and, according to the newspapers, Congress. This demonstrated history of lying clearly obligates us to do a full investigation.”

Defense attorneys in the 9/11 case, upon learning of Pohl’s order (he also presides over that case), have sought the same information about their clients.

Rosenberg reported further on April 22, that the CIA had declined to comment on whether the agency would comply with Pohl’s order.

Since, in effect, Pohl is ordering production of the CIA’s family jewels, my bet holds that—at the least—the agency will seek an interlocutory appeal of the order. If this effort fails, conversely, I wouldn’t bet that the agency will comply with the order.

Charles R. Church

April 26, 2014

Such was the verdict of the Miami Herald’s editorial board on April 19, when it considered what it termed “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions.

On Monday, April 14, attorneys for a defendant in the 9/11 case revealed that the FBI had interrogated a Defense Security Officer (DSO), and required him to sign a confidentiality agreement that established a “special relationship” with the bureau. According to Carol Rosenberg of the paper, Judge Pohl, who presides over both the 9/11 and the Nashiri capital prosecutions, abruptly recessed the first 2014 hearing in the 9/11 case, after defense lawyers accused the FBI of “trying to turn the defense team security officer into a secret informant.” One defense lawyer described how two FBI agents had arrived at the officer’s home, and asked who gave news outlets the unclassified prison camp musings of 9/11 defendant Khalid Sheikh Mohammad (KSM). Counsel told Pohl how the agents also asked “open-ended questions” probing for evidence of wrongdoing by 9/11 defense attorneys. According to a leaked portion of the motion filed by such attorneys under seal, the most immediate implication of the FBI’s actions “is that all defense team members have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators.”

In response, Judge Pohl issued an Interim Order directing any defense team member contacted and/or interviewed by the FBI or other government agency concerning any defense-related matter to disclose such to lead defense counsel, irrespective of any non-disclosure agreement signed. The court also appointed a Special Trial Counsel to investigate in behalf of the government. Such counsel filed a preliminary report on April 21 stating that, contrary to the impression of defense counsel, the FBI is not investigating the disclosure of KSM’s writings to the media. The actual purpose of the investigation was described by counsel in a separate filing provided only to Pohl, so it remains unknown to us. Further, the FBI had taken steps designed to insulate persons involved in the investigation from the 9/11 case’s prosecution team.

Matt Apuzzo of The New York Times wrote a front-page piece titled “Covert Inquiry By F.B.I. Rattles 9/11 Tribunal” on April 19, stating that the FBI’s inquiry “was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar American trial, the invisible hand of the United States government is at work there in ways unlike anything seen in typical courtrooms.” He spoke to Yale Law’s military justice professor Eugene Fidell, who told him: “There’s one person pretending to be the judge, and two other agencies behind the scenes exerting as least as much influence.” He was referring, no doubt, to the FBI and the CIA.

I’ll write about Judge Pohl’s ruling concerning the CIA in a future post.

Charles R. Church