The Sixth Amendment

The Constitution has a lot to say in the Bill of Rights as to what constitutes a fair trial. All of these protections are important and emphasizing one to the exclusion of the others is no virtue. Yet this is exactly what seems to underlie the jurisprudence of Colonel James Pohl, the Chief Judge of the Guantanamo military commissions.

Among the first Executive Orders signed by President Obama was one directing Defense Secretary Robert Gates to ensure “all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered . . . are halted.” The new Administration wanted time to review the military commissions set up by former President Bush for their basic legality and determine any necessary changes required to them, up to and including their abolishment.

At least two other judges have already suspended their trials. However, Pohl, overseeing the arraignment of Abd al-Rahim al-Nashiri, refused to comply.

Pohl wrote in his ruling that “on its face, the request to delay the arraignment is not reasonable.” He went on to argue that no litigation of substantive legal issues would take place at the arraignment, Thus, nothing would be mooted even if Obama goes so far as to cancel military commissions altogether. This seems plausible enough.

However, Pohl’s contention that his decision was “difficult but necessary to protect the public interest in a speedy trial” seems laughably misguided. The defendant has been in U.S. custody since November 2002. After waiting six years for anything resembling a trial, the four month delay requested by Obama is a justifiable holdup to determine if that trial is legal.

Presumably, Pohl is motivated by Amendment Six to the U.S. Constitution, which ensures the right to a speedy trial. However, he ignores the Amendment’s other components as well as many of those in Amendments Five, Seven, and Eight.

Pohl is no stranger to controversial decisions. Prior to his assignment at Guantanamo, Pohl was the lead judge for several U.S. soldiers charged with abusing prisoners at Iraq’s Abu Ghraib prison. In June 2004, he suppressed calls to destroy the prison, labeling it a crime scene and ruling it destruction illegal until completion of an investigation.

Yet even in light of this, he also seemed highly interested in a speedy trial above all other concerns, ruling in August 2004 that the U.S. government must complete three investigative reports about the prison within a month for submission as evidence. Pohl went on to warn he would seriously consider the defendants’ request to dismiss the case if the government failed to meet his deadline.

In the matter of al-Nashiri, Pohl appears concerned with the importance of a speedy trial to protect the rights of victims as well as the rights of the defendant. A Saudi national, al-Nashiri allegedly headed al-Qaida operations in the Persian Gulf area and masterminded the bombing attack on the U.S.S. Cole in a Yemen harbor, killing seventeen American sailors and wounding many more.

The Cole’s former commanding officer, retired Navy Commander. Kirk Lippold, argued the case “needs to go forward,” saying, “The families involved want to see al-Nashiri held accountable for his heinous acts.” Lippold further argued that Pohl’s refusal to comply with Obama’s Executive Order validated the Bush-created military commissions by demonstrating the independence of their judges.

Less biased observers see things differently. Pohl’s bosses indicate they are not inclined to support him. The Department of Defense announced it is taking his ruling under review. A Pentagon spokesperson told reporters there would be “no proceedings continuing down at Gitmo with military commissions. The bottom line is we all work for the President of the United States in this chain of command.”

Even if ultimately overridden, Pohl and other judges like him might wish to revisit their emphasis on expediency as the paramount ingredient for justice. They need look no further for an example than something else Obama signed last week – the Lilly Ledbetter Fair Pay Act.

Ledbetter worked for a Goodyear plant in Gadsden Alabama for nearly twenty years, eventually rising to a supervisory position. Just before her retirement, a concerned co-worker provided documentation showing her consistently paid less than her male counterparts for the same work. She sued for discrimination and a federal court agreed.

Goodyear appealed and in 2007, the Supreme Court, led by its conservative faction, including President Bush’s two appointees, chose to adhere to the letter of the law rather than its spirit. They ruled Ledbetter had missed her chance, maintaining she needed to file her suit within 180 days of her first underpayment, even if she was unaware of it until decades afterward.

Doubtless, the Justices approved of the argument that relaxing the filing period would encourage (frivolous) lawsuits. Courts must address wrongs promptly, they reasoned, or punishment and restitution lose their meanings.

The new law redefines the filing period to 180 days after each discriminatory paycheck filed, reasoning that each check signifies a new occurrence of the same injustice. It leaves the recovery period for back pay at two years.

Ledbetter stood by the President’s side as he signed the law that bears her name. Sadly, she will never benefit from it. She already had her day in court and nothing now can change the ruling against her. This is the sort of injustice that occurs when the speed with which justice is rendered ranks above the quality of that justice.

Colonel Pohl was more than aware of what Obama’s impending inauguration might bring. At a December pre-trial hearing for accused al-Qaida conspirator Ahmed Darbi, he remarked, “This court is aware that on January 20 there will be a new Commander-In-Chief, which may or may not impact on these proceedings.”

It may be Pohl’s reticence to comply with Obama’s Executive Order stems from his fears that a trial following civilian rules and Constitutional guarantees could compromise al-Nashiri’s successful prosecution.

In his opening statement, al-Nashiri maintained seven confessions attributed to him, including his involvement in the Cole bombing, were false and induced from his under torture. In February 2008, CIA Director General Michael Hayden confirmed the use of waterboarding on al-Nashiri. While the Bush Administration repeatedly defended waterboarding as acceptable, both Obama and Republican Presidential candidate John McCain condemned the practice as torture during the campaign.

If this is what motivates Pohl, his defiance of the President may only hasten to realize his worst fears. The Pentagon-appointed attorney for al-Nashiri says Pohl’s ruling gives the Obama Administration few options and the next step in halting the proceedings against al-Nashiri would be for the government to withdraw all charges.

It is true that al-Nashiri is no Lilly Ledbetter. She was an innocent, who received substandard pay for her best effort, dedication, and hard work. He is most likely guilty of violent and terrible crimes. However, the more obvious his guilt, the easier it ought to be for prosecutors to prove it, even outside the special strictures of military tribunals.

This is the problem with giving law enforcement officials extraordinary tools in the name of keeping us safe. It leads to sloppy police work, whose results do not stand except by creating special courts that are equally sloppy. Swift justice is always desirable; a rush to judgment is never so. There is more to a fair trial than (parts of) the Sixth Amendment.

Judge Pohl would do well to keep that in mind when faced with his next “difficult but necessary [decision] to protect the public interest in a speedy trial.”