January 29, 2009

A military judge has refused to delay a Guantanamo proceeding.

The Obama administration has been asking to delay all the proceedings for 120 days — as part of the proposal to close Guantanamo:
The request was quickly granted in other cases when prosecutors told military judges that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

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

The judge's failure to channel Obama administration policy is a sign that the procedures now in existence are reliable. Except all the other judges went along with it.

77 comments:

former law student said...

Isn't Obama the Commander-in-Chief? Is there not a chain of command?

If he has to persuade the Army to do stuff, we're in a world of hurt.

Ann Althouse said...

Courts are courts. They didn't seek to end the case, only to delay it.

Rich B said...

Guess he didn't feel the tingle.

El Presidente said...

FLS is right. In an orderly society the courts are controlled.

I know that the courts is the Socialist Paradise do my bidding.

halojones-fan said...

..."THE Obama"?

MayBee said...

"THE Obama"?

Shouldn't that be "Our Obama"?

The Drill SGT said...

former law student said...
Isn't Obama the Commander-in-Chief? Is there not a chain of command?

If he has to persuade the Army to do stuff, we're in a world of hurt.


LOL,

In every other circumstance, you and the ACLU would be screaming "undue Command influence if somebody up the chain of command attempted to tamper wth a Judge's decisions.

In fact wasn't that the most ecnt whine, that the DoD Bushy politicals had prioritized cases, alledgedly to get some case befre tribunals first? But now political decisions are a good thing.

Note that this was in regard to giving direction to prosecutors, who after all "DO" work for the chain of command, rather than Judge, who are in a separate organization (ON PURPOSE)

Paul Zrimsek said...

The Obama has been asking to delay all the proceedings for 120 days

And the Manolo has been asking to delay all the proceedings until the fall collections come out.

garage mahal said...

I noticed Obama has his own "scandal" and "war on terror" tags, unlike his predecessor. Hmmmm.

former law student said...

In every other circumstance, you and the ACLU would be screaming "undue Command influence if somebody up the chain of command attempted to tamper wth a Judge's decisions.

Delaying the date of trial is not meant to, and should not in any way, change the outcome of the trial. Does proceeding to trial three weeks after regime change serve the interest of justice? Let's say your lawyer gets hit by a bus three weeks before your murder trial -- do you not ask for a continuance?

As for the fairness and independence of military courts: Where's my copy of Military Justice Is to Justice as Military Music Is to Music?

The Drill SGT said...

Let's say your lawyer gets hit by a bus three weeks before your murder trial -- do you not ask for a continuance?

course that didn't happen here.

There were 21 trials. In 5% o the trials the judge didn't rule in favor of the request. Hardly a case of judicial mutiny.

Repeat after me: "Nobody tells military judges what to do in their court during a case".

Do things work differently where you live?

Curtiss said...

Let's say your lawyer's managing partner gets hit by a bus three weeks before your murder trial -- do you still get to ask for a continuance?

Just a thought.

Ann Althouse said...

"THE Obama"?

omitted word: "administration"

now inserted

hope you were amused

MadisonMan said...

This is somewhat off topic, but I'm starting to wonder what the maximum number of blog posts in one day by the professor is. There's an even dozen already today!

Der Hahn said...

Where's my copy of Military Justice Is to Justice as Military Music Is to Music?

Oh, that is just rich!

I guess all the screaming that the MCA was illegitimate because it didn't track to the UCMJ is inoperative now.

Ann Althouse said...

"This is somewhat off topic, but I'm starting to wonder what the maximum number of blog posts in one day by the professor is. There's an even dozen already today!"

Today's posts were relatively easy to write. There have been some mornings where there is one post that took more effort that all these 12.

John said...

"As for the fairness and independence of military courts: Where's my copy of Military Justice Is to Justice as Military Music Is to Music?"

That book was written in the 1960s before many reforms to the UCMJ were enacted. It is about as relevent to military courts today as a 1967 copy of Rolling Stone is to the current top 40 charts.

The only reasons you would mention that book is that you obviously know nothing about how military courts actually work and have a natural and reflexive dislike of anything with the work military attached to it. You just gave everyone on the thread a reason not to take you seriously.

m00se said...

Ah, to be a professor! So much time to loll around coffee shops and post freqently!

Tenure has it's privileges...

Bob said...

I see this as yet another example where Obama is just like Bush. Unable to direct those judges to rule his way. This is a case where the administration just wants to delay, delay, delay. Those innocent goatherders need a speedy trial.

former law student said...

The only reasons you would mention that book

No. When discussing anything on the internet, I always assume that Aahz's law (far truer and more universal than Godwin's) applies. I'm still waiting for the real information however.

m00se said...

...and to agree with Ann - or at least I think I am agreeing with Ann - as ye sow, so shall ye reap.

Military lawyers bucking the system were fine, however when military judges do it, mucho bad.

Well, we'll have this continuing sideshow to amuse ourselves with while in the homeless shelter...

Simon said...

That's some good quality interference the WaPo is running for Obama. "The decision throws into some disarray the administration's plan to buy time as it reviews individual detainee cases.... The Pentagon may now be forced to withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent" (emphasis added). Forced? Poppycock. They may choose to drop the charges, but no one is forcing them to do so; they could just as easily choose to press ahead with the prosecution.

John said...

"No. When discussing anything on the internet, I always assume that Aahz's law (far truer and more universal than Godwin's) applies. I'm still waiting for the real information however."

I practiced as a military lawyer for nine years and did 10s of courts-martial. Defendents in military courts are allowed better access to witnesses and the case against them than in civilian courts. In a courts-martial, the government witness are generally military and are ordered to talk to the accused's counsel before trial. In the civilian world, they don't have to and usually don't. This greatly inhibits the defense's ability to prepare for and get a fair trial in civilian courts. That is just one difference that helps the defendent. In addition, the rule of evidence under the UCMJ are nearly identical to the Federal Rules. To the extent that there is a difference, the differences usually favor the accused. Military Courts-Martial get a bad rap I think and I say that as someone who is plenty skeptical of the military having served in it for nine years.

PJ said...

Courts are courts

Is it really that simple, Professor? Is this military court an Article III court? If it isn't (and I don't purport to know), doesn't that make a difference?

John said...

"Is it really that simple, Professor? Is this military court an Article III court? If it isn't (and I don't purport to know), doesn't that make a difference?"

No it is not. The judges do not have lifetime tenure. But the process is independent of the exectutive by law. The President, even as commander and chief, cannot overrule a military judge. The commander can only bring the charges. He can't run the trial and he can't convict. So, functionally it is an Article III court.

sg said...

Obama requesting a delay is puzzling, as he didn't really say why.

Does he want to change the military commissions--in which case he needs to go to Congress?

Does he want to move the cases to courts martial or Article III courts?

Does he think some detainees are being wrongly tried and should be released?

Given all the he has on his plate, and given all the agony Congress went through with the MCA, it seems Obama should have just let the military commissions process go forward until it demands his attention.

Leland said...

Isn't Obama the Commander-in-Chief? Is there not a chain of command?

Does being Commander-in-Chief mean Obama can violate the law be simply ordering a command?

Should I do a search on "former law student" "Abu Ghraib" on this blog just to see if there is any hypocrisy. No wait, I only have to look to 2 days ago to find it.

So I guess Obama can't deny prisoners a right to a speedy trial simply because he is the Commander in Chief. I guess he needs to come up with some better reasoning then just signing an executive order and saying "I won".

Cedarford said...

former law student said...
Isn't Obama the Commander-in-Chief? Is there not a chain of command?
If he has to persuade the Army to do stuff, we're in a world


What, FLS! Are you saying you no longer believe in Rule of Law(yers) and seek to shred the Sacred Parchment that reigns supreme over the People?

********************
PJ said...
Courts are courts

Is it really that simple, Professor? Is this military court an Article III court? If it isn't (and I don't purport to know), doesn't that make a difference?


Well, I'm no lawyer, but maybe a non-lawyer can distill it down to some simple maxims that are perhaps 85% correct. 10% disputable by lawyers paid to argue otherwise, and 5% wrong...

Article I says that Congress makes the rules and laws that apply to land and naval forces and discplining them, the rules that apply to piracy and felonies affecting Americans on the high seas (interpreted to mean those areas outside the US not under sovereign control of a nation). And offenses against the laws of nations.
Congress makes law enabling the convening of tribunals lesser to the Supreme Court. It also defines the Jurisdiction of Courts. The 9th Circuit cannot take a NJ case, the 2nd Circuit or state court does not have jurisdiction over crimes and rules violations of military even in the 2nd Circuit, state unless the military crimes and rules violations happen in areas that could or do generally affect civilians, where civilian law applies..

Article II has the Executive tasked with appointments to courts, and the convening of tribunals. And commissioning of all officers.
Article III invests all judicial power of the USA in one Supreme Court (Which makes them in a position to have final say about matters affecting US citizens in the military justice system or for unlawful enemy combatants - where Article III powers do apply and do not infringe on treaties and international, maritime laws. )

former law student said...

John, many thanks.

As I dimly perceive it, Obama wants to understand the basis for each prosecution before going ahead with it. To me, this seemed reasonable and unobjectionable. I did not realize how much autonomy the judge had.

Now if the accused objected because of his right to a speedy trial, that's another issue.

Lawgiver said...

And as they were passing by in the morning, they saw the fig tree withered from the roots up.

And being reminded, Peter said to Him, "Rabbi, behold, the fig tree which You cursed has withered."


If I'm not mistaken fig tree is Greek for military judge.

traditionalguy said...

Courts have as their First job the maintenance of a judicial independence. Who will let a court's ruling end a case and let life resume, if anyone believed the Judge was not Hearing a case of facts and law for Blind decision. If the court system is rigged, just dispense with the Show Trial. Call Blago and let him auction off the decision. A good movie showing this reality is Spielberg's Amistad. Good job Col.Pohl.

Revenant said...

I had the same response as "former law student", actually.

I'd always been under the impression that the military courts were under military jurisdiction, i.e. part of the executive branch. Are they part of the judicial branch the way regular courts are? If so then it makes sense that Obama couldn't order the trials to be suspended, although I would think he could order the members of the military involved in the case to take a vacation.

There is one ironic bit about this, though. Even if the court is entirely within the executive branch, it only follows that Obama *must* have a right to stop its proceedings if you believe in...

(drum roll)

... the dreaded UNITARY EXECUTIVE. That's right, the much-hated (by the left) principle that everyone in the executive branch answers to the President.

Host with the Most said...

John,

It is good to hear that military courts are good today.

My father was a military prosecuting attorney (I don't remember the official term) serving at Camp Pendleton 1965 - 1967. I used to ask him what happened to the guys who were innocent of the charges. There were no "innocents", my father would tell me. If the military charged them, they were guilty. He never lost a case. Thankfully, he was transferred out before the Life Magazine expose in '69 of the brig at Camp Pendleton.

traditionalguy said...

PS The trial judge is, hands down, the most powerful job in the legal system. The findings of facts come out of his and the jury he guides actions. Those powerful little facts then determine everything down the Apellate line, unless the Apellate court just ignores them and substitutes their own made up case facts.That's when the fix is in for some hard to know reason, but this besmirches the court's reputation among the attorneys, so it is seldom done.

Triangle Man said...

Revenant said...

... the dreaded UNITARY EXECUTIVE. That's right, the much-hated (by the left) principle that everyone in the executive branch answers to the President.


Is that what people were upset about? I thought it was related to perceived efforts to uncheck the checks and unbalance the balances.

BJM said...

I'd guess that Pohl is comfortable retiring as a colonel.

Joe M. said...

From the second page of the article:
Nashiri has been in U.S. custody since late 2002, and he is one of three detainees the government has acknowledged was subjected to an interrogation technique that simulates drowning while he was held by the CIA.

Haha. 'Cause now that Obama's president, we don't call it "waterboarding" any more.

Bob said...

BJM - if Pohl is forced to retire as a Colonel it will not be because of Obama. He goes before a GO board, in his case of JAGs. The political interference, if you will, is that promotion board result list must then be approved by the Senate. Senators can block approval (its all or nothing) for a given board's list. Or it can be "held" and some officers may retire and the objection goes away. Or the entire list can be rejected by Senate (its happened though not since nineties) and a new board tries again.

Revenant said...

Is that what people were upset about? I thought it was related to perceived efforts to uncheck the checks and unbalance the balances.

That, too. But you heard no end of railing against the dreaded Unitary Executive.

Mind you, this was largely because many of the people who were complaining were clueless, and thought that the Unitary Executive WAS some principle that said the President could ignore the checks and balances on his power.

AlphaLiberal said...

The Kangaroo Court must hop along!

Now, if the Keystone Kops prosecution can only find the "evidence."

I can hear the response already. "Evidence? We don't need no stinkin' evidence! We know they're guilty!"

AlphaLiberal said...

Meanwhile, conservatives are trying to scare Americans into thinking they are in danger if detainees are locked up in US prisons.

The whole point of opening Gitmo was to get around the administration of justice as practiced in the USA. It wasn't because they thought our prisons were not secure.

AlphaLiberal said...

Let's not forget, also, that many detainees were bought like slaves from groups like the Northern Alliance in Afghanistan who turned them over for a bounty.

I guess if some wanker in Afghanistan says a person is guilty, that's all the proof some people need.

Bob said...

Evidence, what evidence? We got the INTEL. Thats what mattered! If we release him now then we just expend a single Hellfighter missile to resolve this. Cheaper than a trial.

Revenant said...

The whole point of opening Gitmo was to get around the administration of justice as practiced in the USA.

That's why we kept captured Germans and Japanese in military camps, I guess -- to get around the administration of US justice.

Or, you know, it could be that that's how captured enemy combatants have been treated for the last six thousand years. Except in those cases when they were simply butchered after surrendering.

Lawgiver said...

The whole point of opening Gitmo was to get around the administration of justice as practiced in the USA. It wasn't because they thought our prisons were not secure.

I have to agree with alpha here. Let's submit them to American justice. Put them all in Pelican Bay while they await their trials. That place is secure enough. I wonder which gang they would join? Hey, we could make a reality show about it, "My Bitch is Named Akmed!"

blake said...

As I dimly perceive it, Obama wants to understand the basis for each prosecution before going ahead with it. To me, this seemed reasonable and unobjectionable.

Sure. He's got nothing better to do with his time.

Revenant said...

Sure. He's got nothing better to do with his time.

Heh!

You know, it occurs to me that delaying prosecution only makes rational sense if you're worried about people being inappropriately set free. After all, delaying prosecution for X days just means innocent people spend X more days in prison. It doesn't help innocent people (assuming any such people are imprisoned in Gitmo at all).

You could argue that he wants to avoid unfair convictions, but that would ignore the pardon power -- if he decides the military tribunals unfairly convicted people, he as President has the power to let them go anyway. Of course he might not have the balls to do that...

SMGalbraith said...

That's why we kept captured Germans and Japanese in military camps, I guess -- to get around the administration of US justice.

Well, as I'm sure you know, we brought back over 250,000 German POWs and held them here to free up more of our troops.

Not to mention old Moe Berg's program where we kidnapped over 6,000 German and Italian scientists and secretly brought them here for interrogation.

None of these folks were given trials or any hearings.

Because, as you stated, for 87,000 years no one ever dreamed that enemy aliens captured during a war had habeas rights. And anyone advocating it would have been put in a nuthouse.

Nowadays, we give them tenure.

halojones-fan said...

Posting is like pooping...sometimes you have to work hard to get just one, and sometimes you get a whole bunch right in a row!

grackle said...

If I'm innocent I want a military court. If I'm guilty I want a civilian court.

Ted said...

The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES “RES IPSA LOQUITUR” BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?wprss=rss_nation

blake said...

Oh, Lord.

Revenant said...

Thank you, Ted. Now if you don't mind, sane people are trying to have a conversation here.

SMGalbraith said...

Oh, Lord.

It's like when you settle down with a cup of hot chocolate to read a book and the dog prances in and barfs up hell-knows-what on the carpet.

You get up to clean it up but you're never sure if you got all of whatever the hell it was off the carpet.

There goes the next hour or two.

Simon said...

Ecce: res ipsa loquitur, sed quid in infernos dicet?

Michael said...

Ted, were on Larry King tonight?

PJ said...

John at 1:01 -- (belated) thanks for that explanation.

Michael said...

Gitmo will, over the years and decades, and more...be remembered as one of America's most disgusting and embarrassing mistakes.

Anybody who doesn't understand that is an uneducated fool.

Michael said...

PJ - You look a lot like someone they pulled out of the creek last week.

Is that you?

dreadnaught said...

The most likely outcome: the Convening Authority will withdraw the charges, without prejudice. This will take the case out of the military judge's hands.

The executive order instructed SecDef to ensure "all proceedings pending in the United States Court of Military Commission Review, are halted."

Withdrawing charges is the way to halt the proceedings. Just a prediction.

PatCA said...

I thought justice delayed was justice denied.

Or is Obama claiming another "waiver"?

Revenant said...

Gitmo will, over the years and decades, and more...be remembered as one of America's most disgusting and embarrassing mistakes.

Closing it, you mean? Yeah, probably.

Host with the Most said...

Gitmo will, over the years and decades, and more...be remembered as one of America's most disgusting and embarrassing mistakes.

I wouldn't be so sure, Michael.

Anyone remember the Camp Pendleton brig expose of 1969? The torture of our own American Marines at the hand of American Marines?

No one does remember. It wasn't even 40 years ago. You can't even look it up.

Guantanamo will be the same.

Bob said...

No, the Left will enshrine GTMO. Sort of like the McCarthy hearings. Like the Japanese interment camps. To be recycled.

Simon said...
This comment has been removed by the author.
Simon said...

Bob said...
"No, the Left will enshrine GTMO ... [l]ike the Japanese interment camps. To be recycled."

In their telling of the internment camps, however, they omit to mention that it was a Democratic President - their hero, in fact, FDR - whodunnit.

In any event, I think it's a little dangerous to get out the crystal ball and make assumptions about how an uncertain future will play out.

Parker Smith said...

Re: Ted

Maybe he's a nut - but it makes me curious.

I'd kind of like to see the real birth certificate, myself. Seems like it would be easy enough to do, and I'm hard-pressed to see any reason not to.

Greybeard said...

Parker-
One of the posters above mentioned dog vomit. That's the easy, super-intelligent way to dismiss an issue that many of us, you and me included, have about the "sweeping under the rug" of the Birth Certificate question.

There Althousians...
Proof of another idiot (or three) in your midst.

Revenant said...

I wonder what Truther site linked to this post? First Ted, then Parker, then Greybeard -- none of whom have ever posted here before.

Or maybe it's the same lone nut doing a Glenn Greenwald routine.

blake said...

Least interesting conspiracy theory ever.

Lacks the preposterous bombast of alternate 9/11 or moon landing theories.

Lacks the significance of JFK.

Seriously. Dudes.

Parker Smith said...

Not NEVER - but rarely.

So, why is this such an unreasonable request?

Just seems to me like Obama could put this to rest pretty quickly and definitively - I wonder why he doesn't.

Greybeard said...

"Not NEVER - but rarely."
Me too.
Only when I want some superior someone to shoot me down.
I'm a glutton for punishment.

Nichevo said...

Look at it the other way. I'm sure he's a natural born US citizen. How could he not be?

So why not show it and shut up these people? I mean, he retook the oath and nobody was really worried about that, were they? C'mon, humor them.

blake said...

Politically, these guys are incredibly useful.

They are ODSers.

Revenant said...

So why not show it and shut up these people?

Because you can't shut up a paranoid conspiracy theorist by showing them evidence.

Greybeard said...

Yeah Rev...
Facts? We don't need no stinking facts!
Thank you.

Nichevo said...

Wasn't that why he retook the oath? To shut up paranoid nutbags?