FORT MEADE — The military judge presiding over the war crimes trial of a Guantanamo Bay prisoner charged in the attack on the USS Cole rejected a motion Tuesday by defense attorneys that he remove himself from the case.
Lawyers for Abd al-Rahim al-Nashiri said they don’t believe Army Col. James Pohl can be impartial because he has a financial incentive to side with the Pentagon, which pays his salary, and he is serving as the judge in other Guantanamo cases. But Pohl said at a hearing that the defense offered scant evidence to support its argument.
Al-Nashiri, a Saudi national, is charged with orchestrating the 2000 attack on the USS Cole, which killed 17 sailors. Al-Nashiri, 47, has been held at the U.S. Naval Base in Guantanamo Bay, Cuba, since 2006 after being held by the CIA in a series of secret prisons. He is considered to be one of the most senior leaders in al-Qaida.
Al-Nashiri was one of the prisoners subjected to severe interrogation techniques, including waterboarding, under rules approved by the George W. Bush administration. Many of those practices have since been repudiated as torture.
Al-Nashiri also was threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the U.S., according to a report from the CIA inspector general.
Death penalty sought
The al-Nashiri case has attracted attention because it is the first death penalty case under a military commission system that has been revised by Congress and the Obama administration. The commissions are still subject to criticism from defense lawyers and human rights groups, who have complained that the rules are stacked in favor of the prosecution. Rick Kammen, one of al-Nashiri’s lawyers, had previously called the military commissions a “second-class system of justice.” On Tuesday, Kammen suggested the process was akin to the Spanish inquisition.
In a motion filed on June 14, al-Nashiri’s defense team said Pohl has a contract that is renewed each year by the same U.S. government that is pushing for successful prosecutions, convictions and death sentences for prisoners at Guantanamo facing charges for war crimes.
“His perceived failure to facilitate that objective could lead to his termination along with the salary and benefits he obtains from temporary duty status,” according to the motion.
Pohl became annoyed after Kammen suggested that he protected senior Defense Department officials when he served as the judge during the courts-martial resulting from the Abu Ghraib prisoner abuse scandal in Iraq. Kamen said Pohl’s rulings in those cases effectively shielded senior military officials from any responsibility in the scandal, leaving the perception that Pohl is deferential to the upper tiers of government.
“That’s not the world I live in,” Pohl shot back. He also noted that Kammen’s salary is being paid by the Defense Department.
In rejecting the recusal motion, Pohl said that any military judge could be disqualified from service under the defense’s “hypothetical” reasoning.
Military personnel rules required Pohl to retire in September 2010 after serving for 30 years. He was then immediately recalled to active duty with recurring annual extensions that are approved by the Army. He has been a military judge since 2000, according to his biography.
In addition to the al-Nashiri case, Pohl is the judge in the trial for the five Guantanamo Bay prisoners charged in the Sept. 11 attacks. He also presided over a case involving Majid Khan, a former Maryland resident who pleaded guilty to helping al-Qaida plot attacks from his native Pakistan.
U.S. prosecutors said Pohl is the military judge best qualified to handle these cases and that the defense has produced no evidence to show he could be dismissed if he rules unfavorably for the government.
Shortly after his decision on the recusal motion, Pohl agreed to the defense’s request that a current photo of al-Nashiri be taken and sent to his family. Al-Nashiri’s lawyers said his family has not seen him in anything other than a sketch for more than a decade because he’s been held by the CIA and then at Guantanamo.
Prosecutors objected to taking the photo.
The Associated Press and other news organizations viewed the proceedings at Guantanamo Bay on a closed circuit telecast shown in a small theater at Fort George G. Meade, a military base located between Washington and Baltimore. Al-Nashiri could be seen only intermittently during Tuesday’s proceedings. He was wearing a gray sports coat over his white prison uniform and sitting next to his defense team.