Military Commissions

Kammen Rebuttal on Recusal

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 10:29 AM

Ah-ha! Kammen says in reply: The prosecutor failed to mention the Supreme Court’s Massey case---the controlling precedent here, in Kammen’s view.  Under that case, the party seeking recusal need not show actual bias. The standard is implied bias.  It is true, of course, that the commission does not receive campaign contributions, like the state supreme court justice in Massey did; instead Judge Pohl is compensated by the military, and his continued service depends on the whim of some unknown Army bureaucrat. And we all know what happens when a judge fails to please that bureaucrat: Dismissal. That’s what happened to Col. Brownback. The government never addressed the “Brownback scenario,” as applied to this case.

With that, the defense attorney seeks to rebut some claims the government made. It is true that the Convening Authority is not exactly a prosecutor.  And that’s because it is more powerful than an everyday district attorney.  And the commissions’ history shows---or at least the public perceives, anyway---that the Convening Authority (albeit a different Convening Authority) has meddled in prosecution decisions before. Practically speaking, the Convening Authority’s actions consistently has benefited the prosecution and undercut the defense.

There’s also a key difference between Judge Pohl and other military judges. Unlike the latter, if Judge Pohl leaves the commissions, he sees a pay cut.  And it may be true that Judge Pohl swears to rule impartially.  But the pay-to-play state supreme court justice in Massey did, too, but he failed to step aside.  It is also important that the commission regime poses many new, unresolved and complex legal issues.  And yes, he swore an oath, but so did the judge in Massey. To resolve those fairly and impartially, Judge Pohl should step down, Kammen concludes.

Judge Pohl calls a 15 minutes recess to relieve the repetitive stress injuries incurred by bloggers.

Don't hold your breath for this motion to be granted.