Commander Andrea Lockhart rises for the prosecution. She wants respond to what she calls the defense’s innuendo and conjecture. The defense has not put forth a legal reason for recusal or disqualification, she says. These must be founded on objective facts, not subjective surmise or “perception.” There’s an obligation not to recuse when doing so is unwarranted---one just as powerful as the obligation to recuse when the circumstances require.
The prosecutor turns to the Convening Authority’s relationship to the prosecutor and the commission---which, Lockhart argues, the defense greatly mischaracterizes. If there’s any skullduggery as between the military judge, trial counsel, and the Convening Authority, then the defense can raise a claim of unlawful influence. But it hasn’t done so.
She also complains of the defense’s relitigation of decided issues---like the motion for a Saleh deposition---and citation of material---like the Bright article---which it has not included with its pleadings.
The Supreme Court has endorsed the use of Article I military judges, and found that such judges can be impartial. There’s nothing to the compensation issue, either: contrary to the defense’s suggestion, the military judge’s salary is not tied to the outcome of Al-Nashiri’s case. The prosecutor also finds no impropriety in Judge Pohl’s detailing to the current HVD cases. The mere assignment to companion cases does not suggest impartiality per se, as courts have held.
Recusal is warranted only when an objective member of the public would reasonably doubt the judge’s fitness for the case. According to the Lockhart, the defense’s motion flunks this standard. The standard articulated by Kammen, and supported by Bright’s article, simply has no application.