Military Commissions

Kammen On Bias, Real and Perceived

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 10:03 AM

Kammen turns from the questions he would have asked to the substance of his motion for Judge Pohl’s recusal and disqualification - specifically, to whether Judge Pohl's retirement benefits pose a conflict with respect to his continued participation in the case as military judge. The Court says that his retirement pay is a matter of public record and the two have a back-and-forth about whether his compensation is different from that of other military judges. To this, Kammen adds the "Col. Brownback" story: according to Kammen, Col Brownback was removed from commission duty because he ruled against the government. Then there's the "legitimacy question," Kammen says, as Al-Nashiri's will be the first capital commission case to proceed to trial. Also, Kammen argues, Judge Pohl presided over the Abu Ghraib trials, and ruled adversely to the defense there. Finally, Kammen notes that Judge Pohl has detailed himself to all of the “big-dog” commission cases---besides this case, the cases brought against Majid Khan and, of course, the 9/11 defendants.

Kammen then turns to an article by famed anti-death penalty lawyer Stephen Bright. Bright argues, he says, that in capital cases, state court judges have to decide between the Bill of Rights and the next election---and almost always choose the latter. State court judges are often elected or given term appointments, and thus subject to political pressures. Those in turn lead the state courts to give prosecutors a free pass, and to run roughshod over defendants’ rights. The commission judge, the lawyer argues, is even worse positioned to protect defendants’ rights. In federal cases, Kammen says, if a defendant could show that twenty percent of the judge’s income depended on the outcome of the case, as he claims of Judge Pohl, then the defendant could seek the judge’s recusal---or get a writ of prohibition, in advance, from an appeals court. The commission’s position, according to Kammen, is compromised by the fact that he was appointed by the Convening Authority, for whom there is no analog in the federal system. The quasi-judicial and quasi-prosecutorial roles played by the Convening Authority, and that poses a problem for Judge Pohl’s continued work on the case.

Judge Pohl rejects any suggestion that he is responsible for the institutional relationship between the commission and the Convening Authority---particularly as to ex parte defense requests for resources.

Kammen cites as an example the defense’s unsuccessful attempt to depose Ali Abudullah Saleh, Yemen’s former president, when the latter traveled in the United States for medical treatment. Kammen says that Saleh had exculpatory evidence, and further that the prosecutors did not argue otherwise. Instead, State Department officials protested Saleh’s deposition on old-fashioned, you’re-going-to-muck-up-foreign-relations grounds---which Judge Pohl accepted in denying the motion. That turn of events is consistent with claims made by Bright in his article, Kammen claims, and with the defense’s claim of bias or outsized deference to the prosecution.

Judge Pohl responds that the defense doesn’t seem to consider him biased when he rules for the defense, but Kammed responds that when he rules for the defense, nobody can say his paycheck depends on the ruling. Judge Pohl is having none of it. No military judge, he says, has life tenure like a federal judge. On the other hand, you don’t get to voir dire a federal judge.

Kammen again likens Judge Pohl to a state judge who takes large campaign contributions. The perception of a conflict matters, he says, and here the perception of bias exists.

He then turns to the Abu Ghraib cases, arguing that Judge Pohl took it upon himself to preside over the vast majority of those cases. There is a perception, he argues, that Judge Pohl’s role in those cases served to slough off responsibility for Abu Ghraib on a few individuals, thus protecting the powerful. Guantanamo is the same. There is a perception, he says, that Guantanamo is all about protecting the powerful, so his role is perceived as similar.

Now Kammen turns to his argument that Judge Pohl has detailed himself to the three cases involving High Value Detainees---the Khan, Mohammed et al, and Al-Nashiri cases. The defense lawyer doesn’t buy Judge Pohl’s claim that other commission judges had more demanding caseloads, and thus were less appropriate for assignment to the HVD prosecutions. There’s also no record, for example, that any of the allegedly booked-solid judges were offered slots on the HVD cases, but turned them down. That’s relevant to the perception problem, Kammen says. Why is the issue important? Kammen, answering his own question, suggests that Judge Pohl’s emphasis on process can lead to unfair results for the defense. The Spanish Inqusition was a “process,” he says, as were the Soviet show trials. (The analogy is pretty imperfect, Judge Pohl retorts.)

Finally, Kammen turns to a practical problem. When Judge Pohl decides issues in this case, he is also deciding issues in the 9/11 case--and vice versa. This gives the prosecution enormous power to game the system. Judge Pohl points out that appellate courts rule on issues of law common to multiple cases all the time. Why is this a problem? Because we have no opportunity to argue our case. Judge Pohl says that his view is that the law in Case A should be the same as Case B. Kammen argues that such a system produces consistency in a fashion that undermines the system.

Kammen concludes with a lengthy speech that contains no new facts or argument.