Judge Halts 9/11 Case as Defense Charges Unlawful Influence

02/25/2015 03:33 pm ET | Updated Apr 27, 2015

You almost have to feel sorry for anyone assigned to work on the Guantanamo military commissions these days. It's bad enough that they're handling death penalty cases for people who the U.S. government has admitted it tortured in secret CIA prisons for years. As U.S. military officers committed to upholding the rule of law, it must also be kind of embarrassing to prosecute or preside over cases in commissions just beginning to try to figure out how to bring to justice detainees who've already been in prison for a decade, for crimes that occurred more than 13 years ago. Now, on top of that, the Pentagon official overseeing the fledgling war court has decided that one way to make these cases function more efficiently is to force the judges involved to live at the Guantanamo naval base until their cases are over. Since all active cases are still in pre-trial hearings, that would be several years from now.

From up North, that might not seem so bad. After all, while it's been freezing in much of the continental United States, the Guantanamo judges get to enjoy Cuba's warm Caribbean weather. But given the state of U.S. relations with Cuba, the judges aren't actually allowed to go anywhere in that country. In fact, they're not allowed to leave the naval base while they're there at all.

Its isolation and remote location are why Guantanamo Bay is considered a "hardship" post for servicemembers, who are paid an extra $150 per month while on duty there for more than 30 days. They also get a "family separation allowance" of another $250 because most soldiers can't bring their families there. And as visitors know from chatting with their military escorts, being stationed there can get pretty boring.

So it's not surprising that after Vaughn Ary, the chief commission official known as the "Convening Authority," convinced Deputy Secretary of Defense Robert Work to issue an order stripping all military judges of their other duties and move to Guantanamo, defense attorneys objected. This puts undue pressure on the judges to get their cases over with so they can get back home, the defense lawyers insisted. Indeed, Pentagon officials knew that was the case, argued Navy Cmdr. Brian Mizer, who is defending Abd al Rahim al Nashiri in commission charges pending against him at Guantanamo. Nashiri is accused of plotting to blow up the U.S.S. Cole, a U.S. Navy ship docked in Yemen, in 2000 -- well before the United States was officially "at war" with al Qaeda. (Charges he also plotted to blow up a French ship, the MV Limburg, in 2002 have been dismissed on the grounds that the U.S. military commissions don't have jurisdiction over a terrorist attack against France.)

Mizer and his fellow defense lawyers argue that Pentagon officials knew the order could lead judges to want to hurry the case and therefore rule in favor of the prosecution. On Tuesday in a pretrial hearing in the Nashiri case, Mizer cited e-mails sent by a legal adviser to the Convening Authority, Cmdr. Raghav Kotval, that asked, "In trying to speed up a trial, are we affecting its fairness?" Kotval explained, "If, for example, the judge is less inclined to grant a continuance because it means more time on Gitmo, is that adverse to the accused?"

It sure does kinda seem that way. In fact, the Chief Judge of the military commissions, Col. James Pohl, was so bothered that he decided on Wednesday (in an order posted, unusually quickly, on the commissions website) to put on hold the case of the five defendants on trial for the September 11, 2001, terrorist attacks, over which he presides, until the Pentagon rescinds its order. Judge Pohl concluded that the Pentagon's order constituted "at least the appearance of, an unlawful attempt to pressure the Military Judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion." The judge added that he was "at a loss" as to how forcing judges to move to Guantanamo would speed up the cases, given that no one else working on them -- lawyers or court personnel, for instance -- were similarly required to live there.

As Kotval, the legal advisor, queried in an e-mail chain with other advisors, "Are we coercing or by unauthorized means influencing the action of a judge? If not, why are we intruding on what is not typically or traditionally a convening authority's role. What is the explanation for the action?"

Defense attorneys for Nashiri likewise argue the order is an example of unlawful "command influence" on the judges and have asked for the Nashiri case to be dismissed. Air Force Col. Vance Spath, the judge presiding over the Nashiri case, has ordered Ary to testify about what led to his decision.

Regardless of how Judge Spath ultimately rules on this issue, one thing seems clear so far about the impact of the Pentagon's order for all judges to move to Guantanamo: It's certainly not improving the court's efficiency.

This post has been updated to reflect that Judge Pohl posted his order.