Case Coverage: 9/11 Case

9/11 Arraignment #12: Bormann Questions Judge Pohl

By Benjamin Wittes, Wells Bennett
Sunday, May 6, 2012, 8:26 AM

Mohammed’s lawyer naturally isn’t the only one with questions for the court. Under the rules, each defendant is entitled to ask questions, and by the looks of it, every defense attorney in the courtroom wants to inquire about potential for-cause challenges to Judge Pohl’s assignment.

Next in our challenge-chat rotation: Cheryl Bormann--whose challenge to prosecutors’ sartorial choices has not endeared her to the press core. She steps to the lectern, abaya and all, to raise challenge matters on behalf of Bin ‘Attash. She adds that the defense team has divvied its inquiries. Though such arrangement runs counter to the one-lawyer-per-side regime which Judge Pohl ordered earlier, Bormann nevertheless asks the court’s indulgence during her questioning. Judge Pohl goes along, while reminding her that if Bormann and her colleagues had agreed to confer earlier, pursuant to rule 802, then they would have known about procedures surrounding the challenge process--as well as the court’s preferred approach. That being said, he lets her proceed as planned.

Rule 802 is a topic that I want to cover, says the lawyer. She portrays rule 802 is requiring an off-the-record conversation between counsel and the judge. But Bormann wants something more transparent: specifically, she asks that all 802 conferences be recorded verbatim, and, consistent with classification issues, also be made available to the public. Her position is rooted in a recent and unhappy experience, which Bormann recounts to the court.   Yesterday, she says, an aide to the judiciary came to the OCDC office and told Bormann that the court had set an 802 conference for 1500 hours. At that time, Bormann had asked the aide whether the court would be recording the session or, alternatively, would have a reporter on hand in accordance the defense’s wishes. Yet as Bormann soon learned, the court declined to take this step, claiming that it was unnecessary. She wants to know: is this account true?  

Judge Pohl notes Bormann’s absence from the 802 discussion, and sternly reminds her that he will not be addressing the court reporter issue until a proper motion is presented to him.  The government controls court reporters, not me, he says. And you chose not to come to the 802 session either; therefore, I could not act.

Oh, and another thing: aren’t you supposed to be asking about my qualifications to sit in this case? Do you have any questions about that?

The last inquiry overflies the dissatisfied Bormann. She answers that when the 802 conference was first proposed, she had attempted to inform the court that she would attend if, indeed, Judge Pohl would order a court reporter’s presence. Yet Judge Pohl decided that no reporter was required, Bormann laments.

I am not going to keep repeating myself, replies Judge Pohl--who has been repeating this very disclaimer all day. I have no authority, prior to arraignment, to order the production of a court reporter. That has nothing do with any motion you’ve filed--which I couldn’t decide yet anyway. This process, he adds, is just like that of the courts martial: until arraignment, the judge’s authority is limited. If you want to ask me for relief sometime later, then that is another issue. But before this proceeding, I was powerless to act on your court reporter problem.  We’ll get to your motion in due course, he promises.

There are 802 proceedings during courts martial, right? Right, says the judge. Well, regarding such conferences, has the court ever been accused by a defendant of resolving 802 matters upon the request of only one party, but over the defense’s objection? An exasperated Judge Pohl does not know the answer. Were that to occur, he says, both counsel would have the obligation to put a note about it on the record, at the proper time.  Seeing an opportunity, Bormann asks if, in the court’s experience, defense counsel ever has refused to take part in an 802 session without a recording of some kind being made. She must have telegraphed the answer, because Judge Pohl tells her “yes.” It was yesterday, he says--referring to Bormann, apparently. What about before that, she asks. Any accusations about 802 matters? Before that never, answers the judge.

A pause, and then Bormann resumes. Do you agree that impartiality is an important quality?  Judge Pohl points out that the rules say as much. What about judicial temperament? Or a knowledge of the applicable law, and practical expertise?  Shouldn’t a qualified judge have all of these things?  Or here’s another example: has Judge Pohl ever practiced law in a civilian court?

He hasn’t. Has he presided over a case in an Article III court? Nope. Judge Pohl hasn’t done that, either. Her clip increasing, Bormann asks if Judge Pohl has ever requested what Borman calls a “supervisory opinion,” from an Article III court. Judge Pohl is not sure about the question’s relevance, or even how he should answer. But, he says, while working as an appellate lawyer, he sometimes would collaborate with the Solicitor General’s office, on cases involving the Supreme Court. These would typically be oppositions to petitions for certiorari.

Bin ‘Attash’s attorney next asks how long Judge Pohl practiced, before taking the military bench. It was twenty years--though, when questioned by Bormann, Judge Pohl says he probably did not ever handle a case implicating more than 10,000 pages of discovery.  Bormann asks a folllow-up, to which Judge Pohl says that he’s just as unsure about whether he ever worked on a case involving 20,000 pages. Ten thousand or 20,000, what difference that would make now, asks the court? Complex litigation is an expertise that certain counsel and courts have, Bormann explains. Still finding no relevance in the questioning, Judge Pohl deems it inappropriate and asks Bormann to move on.

Digging in, the lawyer reloads her discovery question.  As a judge, and prior to this case and to al-Nashiri’s, have you, Judge Pohl, ever handled cases involving more than 20,000 pages of discovery?  It is still an inappropriate question, he says, one altogether unconnected to challenge issues.  Ask your next question.

As a lawyer, did you ever participate in a case with more than one defendant?  Her strategy has become transparent to the court. You want to know whether I have experience enough to handle this case?  Is that your approach?  I’m telling you again:  there’s no way that’s grounds for challenge. I will not answer, Judge Pohl declares.

With due respect, your honor, she responds, these questions go to your relevant knowledge and expertise in these areas. It is true that you have a right to refuse to answer, but I will continue to ask questions pertaining to these areas. You mentioned earlier your role in the Abu Ghraib case. More than one defendant was accused of detainee abuse, right? Yes, but there was not a joint trial, if that is your question, replies Judge Pohl.  Joint trials are rare, right? Indeed they are.

She moves to capital cases: did the court have any experience with them during his law practice? Judge Pohl had some such experience, albeit under a different system, in the 1980s. And, in the 1990s, he once helped to prepare a case in which the defendant plead guilty, so as to avoid a capital referral. So, Bormann clarifies, you never tried a capital case?  It appears not, as Judge Pohl explains his capital case experience. And I see you attended courses for judges in capital crime law, in 2004 and 2011? Did any Article III judges attend these sessions? Judge Pohl says most of the courses’ attendees were state-level judges; there may have been some Article III judges, but he cannot recall.  Bormann explores the details behind these seminars for a moment, and then transitions to another topic.

Next up is a discussion about the “learned counsel,” the commissions’ name for civilian lawyers qualified in death penalty cases. Does the court recall how that term is defined under the commission rules? Judge Pohl has looked the definition up before, but says he cannot recall it right now. Then do you know whether you would have the qualifications to do what I do, Judge Pohl? He’s not sure, but he knows that he is qualified to serve as the judge here.  Not to be learned counsel, not to be a complex litigator--just to be the judge. Building off this reply, here’s Bormann: As a judge, surely you must be familiar with the areas of law that you are asked to rule on, right?  As general proposition, the judge replies, I would not disagree with you. But I’m sure you’ll want me to follow the law based upon what is presented to me, he explains, and not base my rulings upon some preconceived notions which I bring to the case.

There’s some more back-and-forth about Judge Pohl’s experience. I’ve done three commission trials, none of which have gone to adjournment just yet, he says. Then Bormann asks if Judge Pohl agrees that in general, the stature of a service member sitting before a panel of other service members, is different than the stature of the five accused, as they sit before the same panel? Yes, he does agree. Well then, do you come into this proceeding while harboring any preconceived notions about these accused? The judge tells Bormann that he has formed no views, apart from ones derived from what the accused themselves have said or what their lawyers have said today.

How many trials have you presided over in which the defendant was a Muslim? More than zero, responds Pohl, but precisely how many I cannot say. And how many times have you sat as an Article 32 investigating officer in a murder case? Three times, the judge tells her. Of these, how many involved a Muslim accused? The court names one, the case of Major Nidal Hassan--the Fort Hood shooter. Bormann is interested in whether Judge Pohl was asked to make decisions, in those three cases, regarding a possible capital referral. On the first case, Judge Pohl is not sure. But with respect to his two other Article 32 cases, he recommended a capital referral for Hassan’s case; and a non-capital referral in United States v. Russell.  The reasons behind the referral in Russell, he adds, is a matter of public record. He’s not going to explain his referral again; he wants instead to be asked about possible challenges for cause. Bormann claims to understand this request, while at the same time asking whether the Russell ruling was based on Judge Pohl’s considerations of trauma and mental status.  The court’s answer is the same: that’s public stuff, and I’m not talking about it further.

Nevin had asked about the manner in which you, as a judge, would determine whether a statute was unconstitutional, she moves on. Have you ever been asked to do so? It’s happened, says the judge, and in various ways--though, he concedes, he didn’t see too many constitutional challenges under the UCMJ. Bormann gets a bit more specific, and asks if Judge Pohl has had any experience, prior to al-Nashiri and this case, regarding whether a statute was unlawful, unconstitutional, or otherwise incompatible with the concepts that we otherwise hold near and dear--like basic fairness. There was one case, Judge Pohl says; Bormann asks for more details about it. It was a commissions case, and the issues were two different constitutional broadsides against the 2006 MCA--Ex Post Facto and a Bill of Attainder challenge, he believes. Now Bormann’s getting somewhere. Do you believe you have the right to strike down unlawful or unconstitutional statutes? Judge Pohl says he does, and he mentions the restraints on congressional power. If the legislature exceeds these, then Judge Pohl says he would be compelled to invalidate the statute in question.

The discussion continues, with more talk of Judge Pohl’s earlier statements to Nevin. Earlier, Bormann says, you said Ms. Crawford appointed you; afterwards, according to you, your ongoing appointment was simply ratified by Crawford’s successor as Convening Authority? Judge Pohl cannot recall, really.

As Chief Judge, you are tasked with detailing judges. What judges could you have chosen from for this case? The pool, Judge Pohl answers, consists of approximately nine military judges. The other eight have full-time service loads. I currently have three non-commission cases. So I have a lot more time to devote to commissions than they do. Do any of those judges have more experience handling capital complex litigation than you, she asks? Judge Pohl says the question has three adjectives and thus three different answers. One has more experience as a military judge than I do, he says. I am unaware of whether any has tried any capital cases, and I have no idea what kind of experience they have with complex cases. If you had wanted to know the answers to these questions, could you have found out? Yes, he says.

Bormann says she wants to follow up on one issue regarding Black Banners. An entire chapter of the book is devoted to my client, she says, so I have concerns regarding your reading of that book. You told Mr. Nevin that you will not be the fact-finder regarding the effectiveness or EITs in this commission. I am going to be asking you in pretrial motions to assess the effectiveness of EITs with respect to my client. Will your reading of Black Banners affect your rulings? No, says the judge.

Bormann says she is done, and Judge Pohl breaks for the next prayer session.