Gavel Grab

The Military Commissions Act of 2006 has been widely criticized for, among other reasons, not truly providing a fair and impartial tribunal before which detainees may be tried. Under the Bush Administration, there was widespread agreement that the judges who hear the trials of detainees at Guantanamo Bay should be independent, and not subject to control by the administration.

Ten days into the Obama presidency, some no longer seem so sure.

Yesterday, the chief judge at the detention facility at Guantanamo, Army Col. James Pohl, exerted his judicial independence by denying the administration’s request to delay the proceedings against Abd al-Rahim al-Nashiri. The decision forces the Obama administration’s hand, and will require the tough call on how to proceed in the case against al-Nashiri to be made prior to the currently scheduled arraignment date of February 9, 2009.

The reaction? Here’s a sampling from the comments to the Washington Post’s article on the topic:

“Funny. I thought Obama’s title as Commander in Chief allows him to give Military orders Perhaps I am way off base on that.”

“As I remember things, President Obama is the Commander In Chief and the military is bound to obey him. Now, maybe Col. Pohl is taking a page from the actions of our former president Bush and is giving himself some sort of executive privilege but this should not be allowed to fly. Col. Pohl may find himself with a career change if he doesn’t come around. At any rate, it is not up to Col. Pohl to determine what is in the public interest as he is not an elected public servant…he’s a soldier.”

“Um, excuse me, but isn’t the president the commander of the armed forces? Last I checked, this nation was not ruled by the military and the military is subject to the civilian government. Obama needs to reframe his request as a direct order and fire any military officer who refuses to go along with it.”

“So, how do we remove this judge from office?”

On the other hand, the move was applauded by some, including Commander Kirk S. Lippold, who stated that the decision “proves the military commissions work without undue command influence, and this decision puts us back on track to see an accounting for al-Nashiri’s terrorist acts.” Lippold was commanding officer of the U.S.S. Cole when the ship was attacked by al-Queda. Al-Nashiri stands charged with conspiracy to commit terrorism, murder and attempted murder in violation of the laws of war, and terrorism for his alleged role in the attack on the U.S.S. Cole, in which seventeen American soldiers were killed.

The Judge’s ruling will require the Obama administration to make a difficult decision more quickly than it had hoped. Said Pentagon spokesman Geoff Morrell “this department will be in full compliance with the president’s executive order. . . . And so while that executive order is in force and effect, trust me, there will be no proceedings continuing down at Gitmo with military commissions.” The charges against al-Nashiri could be withdrawn by Susan J. Crawford, the Pentagon official appointed as the convening authority for the Guantanamo military commissions. Such a move would not need to be approved by the military judge.

But withdrawal of the charges begs the question of what to do next. While the charges against al-Nashiri are serious (he could face the death penalty if convicted), the evidence against him is tainted by the fact that al-Nashiri is one of the three detainees that the government has admitted to “waterboarding.” Eric Holder, Obama’s Attorney General, told the Senate Judiciary Committee during his recent confirmation hearings that he believes that waterboarding is torture.

The administration’s next move is not clear. But if the administration decides to proceed with charges against al-Nashiri in a military commission, a federal court, or some other tribunal, it is vitally important that the judge in such a proceeding be fair and impartial, and not subject to the control of the administration.

In signing his recent executive order decrying torture, President Obama stated that doing so demonstrated “an understanding that dates back to our Founding Fathers that we are willing to observe…standards of conduct not just when it is easy but also when it’s hard.”

Advocates of justice should support the right of Col. Pohl to make the decision he made, even if they believe it is the wrong one. It is easy to support the notion of judicial independence when you agree with the judge’s decision. But justice demands that we support judicial independence not just when it is easy but also when’s hard.

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