USS Cole defendant wants judge to remove himself from case

MIAMI — Defense lawyers have filed a sealed motion at the Guantanamo war court arguing that argues the chief judge has a career incentive to keep the USS Cole bombing case alive, has no experience in capital cases and should remove himself.

The Pentagon disclosed the existence of the filing on Friday, listing it on the military commissions docket under the title: “Motion to Disqualify or in the Alternative Requesting the Recusal of Col. James L. Pohl as Military Judge in this Case.”

Pohl, chief of the war court judiciary, has a contract that’s up for renewal each year because he faced mandatory retirement from the U.S. Army in 2010, one reason he’s not qualified to serve, the lawyers argue.

“The judge has a financial incentive to keep the cases going,” said Richard Kammen, criminal defense counsel for Abd al-Rahim al-Nashiri.

Al-Nashiri is facing the first death-penalty trial at a Guantanamo military commission, for allegedly orchestrating the October 2000 attack on the Navy destroyer off Yemen. Seventeen U.S. sailors died in the attack.

The Guantanamo cases need “a judge who is truly independent of the bureaucracy,” said Kammen, describing the motion. “Given the financial situation there is a perception that Judge Pohl cannot and does not have that independence.”

The motion can be sealed for up to 15 business days under the Pentagon’s rules — time enough to let intelligence agents black out information that they consider a breach of national security or a violation of certain government employees’ privacy.

Pohl has defended his ability to hear the national security cases impartially under questioning by defense lawyers at Guantanamo.

“Judges come with their life experiences. However, their role, in my view, is to apply the law as it is, regardless of personal feelings,” Pohl said May 5.

Pohl, 61, earns $10,557 a month. He is the only military judge hearing cases at Guantanamo because he’s assigned himself to all three of them — the Cole case, the complex five-man prosecution of the five alleged Sept. 11 conspirators and a guilty plea by Majid Khan, a U.S.-educated captive at Guantanamo who pleaded guilty to supporting al Qaida and turned government witnesses.

All three cases involve complex national security issues because the men were held for years by the CIA before President George W. Bush had them brought to Guantanamo for trial in 2006.

Pohl was supposed to retire on Sept. 30, 2010 under the Defense Department’s mandatory retirement rule for colonels who reach 30 years of service in the Army. Instead, he was discharged that day, and rehired the next by the Army on what has become two year-long extensions. He said he anticipated annual extensions “for the foreseeable future until these cases are done.”

©2012 The Miami Herald