Don’t know about you, but I found this headline a little strange:
Military Judge Denies Obama Request to Suspend Hearings at Guantanamo
A military judge in Guantanamo Bay today denied the Obama administration’s request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others…
Pohl said he found the government’s reasoning “unpersuasive” and he clearly felt he was not bound to bow to the administration’s wishes.
A federal magistrate would arguably be in a better position refusing an executive order, since the branches are co-equal. But a military judge is first and foremost a member of the military, and oddly postured to evaluate the persuasiveness of orders from the Commander-in-Chief (the “requests” of seniors in the chain of command are to be taken as orders by the uniformed set).
Judge Pohl seems to feel that the law passed by the last Congress supersedes President Obama’s CINC authority.
Huh.
Given that the Congress has the explicit authority for setting the rules and regulations governing the armed forces, and has the authority to define jurisdictions for lesser courts, I’d say the military judge probably did right to follow the law, rather than accede to a request from the chain of command.
This will be interesting to watch. The Judge is correct, but well see if the Messiah removes him from the roster of active ossifers. THAT, the messiah definitely has the authority to do.
I did a double-take, too when I read that this morning. There must have been something in how the request was made – some legal grounds the attorney’s argued in asking – that triggered the ruling.
Beg’s the question why the big guy didn’t just send word – “we gonna have a timeout here” – and be done with it.
The judge is well within his rights to deny the continuance request from the government. In his eyes there is no difference between the Obama administration and the Bush administration – same government.
The MCA states that the gov’t has to arraign Nashiri within 30 days of the charges being referred to trial. That is a speedy trial right that Congress gave an accused at a Military Commission. The gov’t has to then bring Nashiri to a full trial within 120 days after charges being referred. This rule of course allows for continuances being granted for a good reason. The judge in this case didn’t think that President Obama wanting to review Military Commissions was good enough. Military Judges do this all the time in Courts-Martial.
In a court-martial when a military judge doesn’t allow the prosecution to enter something into evidence the military judge is effectively telling the President no. There is no difference here.
The government now has a choice – withdraw the charges and bring them later in federal court, court-martial, military commission or dispose of the case in some other way determined by the administration.
Wasn’t there bunch of JAG officers that threatened to quit because they didn’t like the rules for the Gitmo trials? You would think the rules for a tribunal were well established during WWII.
As I see it, this may be the very thing that POTUS wanted. This gives The President something very precious, time. There was nothing this Judge did which actually challenged Obama’s authority. This shows Obama getting all of the information. In today’s World, this shows a rare quality, the ability to listen. Essentially, POTUS gave the case ‘standing’.
The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES “RES IPSA LOQUITUR” BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?wprss=rss_nation
And what about the doctrine of “undue command influence” When it is the Commander in Chief trying to influence, what realistic independence does a military judge or court have. Is this but just a first step?
Agreeing with XBrad & QM that the Judge did the correct thing, I wonder if his premise can be made to stick. I’m pretty sure he just rendered himself what Lex described as ‘Terminal Grade’.
O/T: Can you say Blago got spanked? Wow! No dissent on the vote. ‘You’re outa’ here, buddy!’…and him being so innocent and all.
That hadda hurt about as bad as The Chosen One having the House Republicans thumb their noses at him
Way over my had.
But I remember thinking in the late 1950′s that trends were starting that were going to hurt. The issue then was that we white hats were going to be subject to local law and that the US government would make no attempt to rescue us (that is the way I understood it at the time).
Now the boots on the ground have Mirandize the sniper before blowing her out of the tree.
And God only, knows how Gitmo and places like it are run.
I am not quite old enough to remember the POW camps stateside–even my memories of Tule Lake (from the outside) are dim.
Seems like more and more laws defining stuff results in less and less being defined.
The CIC is the final appealing body in military tribunals. These are Article 1 courts and not Article 3 courts, yes? He can bring the charges or not, but he can’t come up with his own ex parte process mid-stream.
This reminded me of something I heard, and I may get the Presidents wrong, and hopefully one of your readers will correct me.
Last month I heard that I believe Bush, coming into office, said to Clinton, leaving office, “What is going to surprise me most?” and Clinton’s reply was, “How little power you really have.” (Could have been Bush Sr to Clinton… it was one of those two eras.)
Anyway, that came to my mind when I heard this and how the judge may really be able to say ‘No.’
Bou:
There are a couple of concepts there that mam not be germain to this discussion, but might be….
One is the cruel fact that the President gives orders that (with the possible exception of the military) goes to a civil servant–a fire-proof civil servant.
The other is the notion of the “first level veto” (I don’t know where I got it, some management guru of the 1970′s, probably). The point here is that eventually the command (or what ever) gets down to the person who actually has to do it, and can do it, do it correctly, do it sloppily, or do it sometime next week. Or not at all. (See “civil servant” above.)
And I am not a lawyer, but it would seem (think “double jeopardy”) that once a proceeding has begun, the prosecution side has no choice but to proceed, or drop the charges.
I found this interesting comment over at FoxNews. Seems the DoD already grasps which side of the bread the butter is on:
Pentagon spokesman Geoff Morrell said Thursday that Pohl would soon be told to comply with Obama’s executive order.
“All I can really tell you is that this department will be in full compliance with the president’s executive order,” Morrell said at a news briefing. “There is no ifs, ands or buts about that.”
“The president has signed an executive order and that sort of puts all this on hold as we go about and review a number of things related to Gitmo, our detention operations, our interrogation procedures,” he continued.
“And so, while that executive order is in force and effect, trust me that there will be no proceedings continuing down at Gitmo with military commissions,” he added.
Heh…
Someone’s feeling all atwiddle and duckbumps about the era of HopeNChange.
Two thoughts on this topic:
1st: congratulations to Judge Pohl on his pending retirement in current grade, and thanks for his honorable service.
2nd: much like the captain of a ship at sea, there is nothing quite so close to being sovereign lord of all one surveys as being a judge on his bench. boards of inquiry and appeals courts may feel differently after the fact, but hizzoner is the skipper underway.
I wonder if the Judge will try to argue that it’s an illegal order?
Where is Snakey when we need his legal expertise?
Couple of thoughts – I always assumed that military judges WERE considered Federal Judges. Is that not correct?
Larry S. I am not a lawyer either (and might not admit it if’n I were) but I believe that double jeopardy only applies if you have been tried and found not guilty. You can be charged, have charges dropped and be charged again. I may be wrong, I often am. Also, if they don’t proceed with the pending trials, that does not mean they have to drop charges, they only have to change venue…
Someone correct me. (My wife isn’t here to do it.)
Balls. Big Ones.