Chief military tribunal judge challenges presidential authority to suspend Guantanamo trials


By Peter Duveen

PETER'S NEW YORK, January 30, 2009--A military judge has directly challenged President Barack Obama's order to suspend trials of alleged "terrorists" by military tribunals at the U.S. Naval Station at Guantanamo Bay, Cuba, the Associated Press says in an online article published early this morning.

AP journalists Mike Melia and Andrew Selky report that Army Col. James Pohl, chief judge for the tribunals, yesterday challenged President Obama's executive order of Jan. 21 to bring a halt to "all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered."

Pohl insisted in a ruling yesterday that some of the proceedings must continue, arrogating to himself the power to challenge the president's order, and claiming that "on its face, the request to delay the arraignment is not reasonable," according to the AP report.

The significance of Pohl's ruling was in no wise lost upon at least some Pentagon officials. It is a direct challenge to the authority of the U.S. president, who is the commander-in-chief of the military under the U.S. constitution.

A Department of Defense spokesperson, Geoff Morrell, said the military would adhere to Obama's executive order, predicting that there would be no further proceedings.

"The bottom line is, we all work for the president of the United States in this chain of command, and he has signed an executive order which has made abundantly clear that until these reviews are done all of this is on hiatus," Morrell told reporters.

However, there can be little doubt that Pohl was acting in an atmosphere approaching contempt for the executive, judicial and legislative branches of the U.S. government. His actions can easily be interpreted as having the tacit approval of U.S. Secretary of Defense Robert Gates, and are evidence of the rumblings of a military takeover which may have already have occurred in effect through the increasingly widened scope of Pentagon power achieved during the Bush administration.

As the American Civil Liberties Union executive director Anthony Romero noted according to the AP report, Gates " has the power to stop the military commissions and ought to follow his boss's directives."

Gates's failure to block Pohl's ruling or even allowing it to stand unchallenged would imply possible complicity. Just as it has been said that terrorism must be nipped in the bud before it begins to blossom, so must a possible Pentagon takeover of the U.S. government. Such remarks by a military judge with the implicit support of the secretary of defense must be taken seriously.

Pohl's ruling was applauded by Lirk Lippold, the retired Navy official who was the commanding officer of the U.S.S. Cole, which in 2000 suffered an attack that left 17 sailors dead and scores injured. The attack is said to have been carried out by "Al Qaeda terrorists," among them, allegedly, Abd al-Rahim al-Nashiri, whose particular case Pohl ruled on.

"The families involved want to see al-Nashiri held accountable for his heinous acts," Loppold was quoted by the AP as saying. However, the very purpose of a trial--the determination of guilt or innocence--seemed to have been lost on Lippold, who may have been under the impression that convictions were a foregone conclusion, and trials merely a rubber stamp on the military's prosecutorial function.

Pohl's statement would seem to demand an immediate response from the Federal government, such as his removal and prosecution, and a request by the president for Gates's resignation. If Gates and Pohl were taken into custody by Federal marshals pending an investigation be conducted, not by the compromised Federal Bureau of Investigation (FBI), but by a special prosecutor, it would send a message of zero tolerance for acts remotely resembling or contributing to the staging of a military coup. In response to Pohl's remarks and actions, the U.S. Congress should immediately conduct a review of the present state of the military to assess its potential threat to Americans. Pohl may have ruled the way he did to prevent public trials of alleged terrorists. Such trials are likely to reveal the innocence of the accused and the true nature of the crimes of 9-11, which many commentators, including columnists Robert Novak and William Safire, have suggested were operations carried out or assisted by clandestine factions within the American government.

Ways to reign in the power of the military ought to be explored in a congressional review. Gates is not alone responsible for the current state of affairs. State and local governments have become a ghostly semblance of what they were intended to be under the U.S. Constitution. The military ought by degrees to be decentralized and placed increasingly under control of the states in order to reduce its potential to threaten Americans and the world at large. A general reduction in arms, particularly with regard to nuclear weaponry, in line with similar moves by other nations, is needed to reduce the possibility that the military will turn its might in the direction of the people it is intended to serve.

The conduct of Pohl has revealed to the world the mindset of at least one faction of the defense establishment. With the cooperation of more level heads within the U.S. military, everyone must play a role in taming the leviathan we call the nation's armed forces. We must remember that America's military technology, in cooperation with the nation's secretive intelligence agencies, is as easily directed at an American city as toward innocent civilians in Gaza, who were only days ago tragically mowed down in the thousands by the Israeli army courtesy of American military hardware and advice. The nation's armed forces may pose a threat rivaling anything so-called "Islamic terrorists" are ever likely to perpetrate. Late last year troops were reassigned from Iraq to perform domestic duties that may include riot control. In response to recent developments, an attempt should be made by the nation's legislative bodies to restructure the defense establishment to prevent the possibility of a military takeover.


(Original with corrections and additions may be found at

Pohl's boss

If it isn't his Commander-in-Chief, who is it?

I have done some reading

since writing this post that indicates the military has an independent judiciary, at least in theory, that cannot be influenced by the command structure, which would perhaps even include the president. This has been put in place by Congress. That would be logical, since without an independent judiciary, you can't really expect to have a legal structure at all.

... then is it Congress?

Before Marbury vs. Madison, it wasn't clear that the Supreme Court serves as the arbiter of what the Constitution says. Then, after MvM, in Cherokee Nation v. Georgia and Worcester v. Georgia, the Supreme Court decided in favor of the Cherokees, and Andrew Jackson reportedly said "John Marshall has made his decision, now let him enforce it." We've come some way since then, but the lessons may remain worth remembering.

Does the military's 'independent' judiciary remain accountable? And if it is, is it accountable to Congress, the Executive Branch, the Supreme Court? All 3? And if all 3, which holds primacy, if any? Or is the military's 'independent' judicary the final word?

One would think

that the military courts are subservient to the Supreme Court and that the President would sue the military court in the Supreme Court and force them to decide this issue, if it comes to that.

But, we do live in strange times and the law is frequently ignored or otherwise abused.

This should be interesting to watch.

... law frequently ignored/abused

In theory, the law is a check on tyranny. It's sad, but in many ways, it's become a tool of tyranny.