Legal Commentary

Insubordination In the Pentagon?

By Big Tent Democrat

The NYTimes story on the refusal of a military commissions judge to abide by President Obama's executive order halting all military commissions proceedings raises the level of importance of this situation. Indeed, the article raises some very worrisome possibilities:

[S]ome critics of the military commission system said the decision appeared to express the views of military officers who would like to complicate the Obama administration’s efforts to close Guantánamo and, possibly, abandon the military commission system.

Anthony D. Romero, the executive director of the American Civil Liberties Union, who has praised President Obama’s early actions on Guantánamo, said the ruling in the Nashiri case had raised questions about whether the Pentagon would resist the administration’s efforts.

[(Emphasis supplied.) More . . .]

. . . The effect of Colonel Pohl’s decision could be reversed by the chief Pentagon official for the military commission system, Susan J. Crawford. Lawyers said Thursday that she could dismiss the charges against Mr. Nashiri “without prejudice,” which would effectively remove the case from the judge, while clearing the way for prosecutors to file new charges in the future.

A military official said he expected such a decision from Ms. Crawford, who has broad powers over commission cases. But some military officials said it was difficult to predict what she would do. . . .

Pentagon officials appeared confused by Thursday’s development because many thought the system was essentially paused after Mr. Obama issued an executive order on Jan. 22 that directed immediate steps to assure that military commission cases “are halted.” A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, issued a statement that officials were reviewing Colonel Pohl’s decision. But the statement added, “We will be in compliance with the president’s orders regarding Guantánamo.”

(Emphasis supplied.) Well, right now, the Pentagon is NOT in compliance with the President's executive order and that is extremely troubling. Adding to the the problem:

Some of those who have criticized the president’s decision to turn sharply away from the Bush administration’s detention policies called Colonel Pohl’s decision encouraging. Kirk S. Lippold, the retired commander of the Cole, issued a statement saying that Mr. Obama’s order to close Guantánamo within a year had not considered the impact on the victims of terrorism. “Today’s decision,” the statement continued, “is a victory for the 17 families of the sailors who lost their lives on the U.S.S. Cole over eight years ago.”

It is in this context that I believe that President Obama is impelled to act in a way that publically rebukes Judge Pohl's insubordination. For it was Judge Pohl who said on January 15:

"This court is aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings," he said, warning everyone to stay focused ``unless and until a competent authority tells us not to."

(Emphasis supplied.) The President of the United States told the military "not to" in a January 22 executive order. Judge Pohl is defying his commander in chief. This is serious business now. Judge Pohl must be publically rebuked for not recognizing President Obama as his commander in chief and the authority over the military commissions, as provided for by the Military Commissions Act. His actions are outrageous and can not be allowed to stand. The implications could be enormous.

See also Andrew McCarthy at National review:

[W]hat we have here is a temper tantrum by a grandstanding judge. However inadvertently, Col. Pohl is just giving President Obama more reason to think there are better ways to deal with detainees than a system that denies abundantly sensible motions . . .

Speaking for me only

Full post as published by TalkLeft on January 30, 2009 (boomark / email).