Military.com

Judge Won't Remove Himself From Cole Bombing Case

FORT MEADE, Md. - The military judge presiding over the war crimes trial of a Guantanamo Bay prisoner charged in the attack on the USS Cole rejected a motion Tuesday by defense attorneys that he remove himself from the case.

Lawyers for Abd al-Rahim al-Nashiri said they don't believe Army Col. James Pohl can be impartial because he has a financial incentive to side with the Pentagon, which pays his salary. But Pohl said at a hearing that the defense offered scant evidence to support its argument.

Al-Nashiri, a Saudi national, is charged with orchestrating the 2000 attack on the USS Cole, which killed 17 sailors. Al-Nashiri, 47, has been held at the U.S. Naval Base in Guantanamo Bay, Cuba, since 2006 after being held by the CIA in a series of secret prisons. He is considered to be one of the most senior leaders in al-Qaida.

Al-Nashiri was one of the prisoners subjected to severe interrogation techniques, including waterboarding, under rules approved by the George W. Bush administration. Many of those practices have since been repudiated as torture.

Al-Nashiri also was threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the U.S., according to a report from the CIA inspector general.

The al-Nashiri case has attracted heavy attention because it is the first death penalty case under a military commission system that has been revised by Congress and the Obama administration. The commissions are still subject to criticism from defense lawyers and human rights groups, who have complained that the rules are stacked in favor of the prosecution. Rick Kammen, one of al-Nashiri's lawyers, had previously called the military commissions a "second-class system of justice." On Tuesday, Kammen suggested the process was akin to the Spanish inquisition.

In a motion filed on June 14, al-Nashiri's defense team said Pohl has a contract that is renewed each year by the same U.S. government that is pushing for successful prosecutions, convictions and death sentences for prisoners at Guantanamo facing charges for war crimes.

"His perceived failure to facilitate that objective could lead to his termination along with the salary and benefits he obtains from temporary duty status," according to the motion.

Kammen hammered on that point during a lengthy and occasionally testy exchange with Pohl. Kammen said it is not clear who is responsible for renewing Pohl's contract and what connection, if any, those individuals might have with the prosecutions at Guantanamo. That means, Kammen said, that a reasonable person could believe "that if you don't please the bureaucracy, that contract will be withdrawn."

But Pohl said that under the defense's "hypothetical" reasoning, any military judge could be disqualified from service.

Military personnel rules required Pohl to retire in September 2010 after serving for 30 years. He was then immediately recalled to active duty with recurring annual extensions that are approved by the Army.

In addition to the al-Nashiri case, Pohl is the judge in the trial for the five Guantanamo Bay prisoners charged in the Sept. 11 attacks. He also presided over a case involving Majid Khan, a former Maryland resident who pleaded guilty to helping al-Qaida plot attacks from his native Pakistan.

Al-Nashiri's lawyers said Pohl's role in all these cases indicate that he wants to "leave an outsized mark" on the Guantanamo tribunals. That creates the appearance of "an agenda that is separate and in many respects at odds with serving as an impartial arbiter of the law in those cases," the defense motion said.

Without a docket of active cases, there are fewer reasons to renew his contract, the defense argued. That means Pohl is not likely to dismiss any cases, regardless of how compelling the merits for doing so may be, al-Nashiri's lawyers said.

U.S. prosecutors urged the defense's motion be rejected. They said Pohl is the military judge best qualified to handle these cases and that the defense has produced no evidence to show he could be dismissed if he rules unfavorably for the government.

Shortly after his decision on the recusal motion, Pohl agreed to the defense's request that a current photo of al-Nashiri be taken and sent to his family. Al-Nashiri's lawyers said his family has not seen him in anything other than a sketch for more than a decade because he's been held by the CIA and then at Guantanamo.

Prosecutors, however, objected to the photo. They said the commander of the Guantanamo Bay prison had rejected an earlier request because military policy restricts the photographing of detainees. The Red Cross intermittently takes photos of Guantanamo prisoners and then sends them to the families, they said. The next opportunity to do that is likely to occur in October and al-Nashiri should wait until then, the prosecutors argued.

The Associated Press and other news organizations viewed the proceedings at Guantanamo Bay on a closed circuit telecast shown in a small theater at Fort Meade, a military base located between Washington and Baltimore. Al-Nashiri could be seen only intermittently during Tuesday's proceedings. He was wearing a gray sports coat over his white prison uniform and sitting next to his defense team.

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