For Immediate Release: July 17, 2012
Following today’s hearing at Guantanamo Bay in the death penalty case of Abd al-Rahim al-Nashiri, charged with orchestrating the 2000 attack on the U.S.S. Cole, Human Rights First’s Melina Milazzo, who observed the military commission proceedings at Ft. Meade, said:
“A slew of issues were raised in the military commission case of al-Nashiri today, most all of them new ones never before addressed by the military commissions and which this judge will now have to rule on without the benefit of binding legal precedent. The situation does not inspire confidence.”
Milazzo observed that one issue Judge Pohl ruled on today highlights the challenge facing him and these untested commissions. Although Judge Pohl ultimately ruled against the defense motion to recuse himself, the defense raised an important question regarding whether any judge hired by the government to serve on a temporary contract, as he is, can be truly independent and will be willing to rule against the government when necessary. As the defense noted, Judge Pohl faces potential pressure to rule in the prosecution’s favor in order to maintain his position as a judge in both the Nashiri and the 9/11 cases.
“In an Article III federal court, by contrast, the U.S. Constitution guarantees that the judges all have life tenure, for exactly this reason: to ensure their independence from the government,” Milazzo concluded. “The contrast is stark; the lack of independence in a military commission proceeding undermines its legitimacy.”