[UPDATED at 6:00 p.m. with links to, and some discussion of, DoD rationales and the regulatory amendment itself.]

Things have been moving very slowly, to say the least, in the military commission case against the 9/11 defendants.  There is an ever-expanding list of motions to resolve, and there is no telling how long it will be before the trial itself — which will presumably last for several years–commences.  It is even possible the case might not conclude until more than two decades after the attacks.  As Convening Authority Vaughn A. Ary lamented in December (see Attachment B of the defendants’ motion), “we still find ourselves in the beginning stages of the trial process.”  The Convening Authority attributed this in large measure to the fact that in all four of the commission cases combined, involving hundreds of pending motions (many of them complex), the judges averaged just ten hours of hearings a month in 2014. 

This state of affairs is of understandable concern to the Department of Defense.  “Fundamental changes are necessary if we are to better position the Commissions to meet the demands of complex contested litigation,” Ary wrote at the conclusion of his investigation of the commissions’ progress.

It also, of course, offers strong confirmation of the wisdom of Attorney General Holder’s original decision to charge the case in an Article III court–an option that Congress has now foreclosed.  Of course, not all federal trial judges are efficient.  Even so, it is hard to imagine that the case would be moving at this pace if it were before, e.g., Judge Lewis Kaplan.  (Perhaps my perspective is skewed, because I clerked for a judge (Jack Weinstein) who ran a very efficient courtroom.  But I think it is unlikely things would be progressing as they are now if the prosecution were subject to the time-tested procedures of an Article III terrorism trial in the Southern District of New York.)  In his opinion yesterday, Judge Pohl defends his pace:  “As a point of reference,” he writes, “the trial of Zacarias Moussaoui [in the Eastern District of Virginia] began 2 January 2002 and concluded 4 May 2006.”  That’s not quite right, however:  Moussaoui pled guilty in April 2005, less than three years after the amended indictment was filed; and the subsequent sentencing phase of his case–the only “trial”–lasted less than three months, from February to May of 2006.

In any event, whatever the merits and causes of the delays, DoD chose a highly unusual way of addressing its concern:  “Unless and until we dedicate full-time judges on site,” wrote Convening Authority Ary, “we cannot demonstrate a serious commitment to the commissions process.”  “I believe we must realign resources and reposition the trial judiciary to make it a full-time, on-site duty for the judges assigned to military commissions.”*  Accordingly, upon the recommendation of the Convening Authority, on January 7 the Deputy Secretary of Defense amended the Commission regulations to provide that commission trials shall be the “exclusive judicial duty” of Commission judges, and that therefore those judges are assigned to live at GTMO until the trial is over.  (See Attachment C of the defendants’ motion.)

This did not sit well, to say the least, with Chief Judge Pohl, who is presiding in the 9/11 case.  The defendants moved to dismiss the charges based on alleged unlawful command influence.  Judge Pohl has not yet made the government’s responsive brief public; but the government’s brief on the same question in the al-Nashiri case is available here.  The government argues that the change recommended by the Convening Authority, and approved by the Deputy SecDef, is designed simply to “to ensure that military commissions are adequately and equitably resourced,” and is not “a critique of a particular outcome or decision or a disguised effort to spur a particular decision in . . . any military commission, nor is it a reflection of the Convening Authority’s desire for a particular result.”  According to the prosecution, “[a]ll parties are seeking to move, in good faith, expediently toward trial because it is in the interest of all parties.  For the Convening Authority to suggest that the trial judiciary should be given the necessary resources to meet this goal is not only proper, it is a requirement of his office.”

Yesterday, without oral argument, Judge Pohl expeditiously denied the motion to dismiss; but not before he found that the “live at GTMO” regulation is unlawful under 10 U.S.C. § 949 (the statute prohibiting unlawful command influence) because, at a minimum, it creates the appearance, to an objective, disinterested observer, that DoD is attempting to influence the judge’s conduct of the case.  Accordingly, Judge Pohl ordered an abatement of all the 9/11 case proceedings until the Department rescinds the regulation.  [Aside:  Judge Pohl posted his opinion for all the public to see on the day he issued it.  As I wrote earlier this week, such expeditious posting should be–but is not–the norm for the vast majority of the pleadings and orders in the commissions cases.  Indeed, two of the three pleadings on this very motion are still not available to the public–and it’s very difficult to evaluate the merits of Judge Pohl’s order without reviewing what the parties have said about the questions.  The same-day release of this order shows that this problem of delayed publication can be effectively addressed.]

Here’s the heart of Judge Pohl’s analysis:

Continuances and pace of litigation are in the sole discretion of the trial judge.  “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings … [and] [p]roper case management during a trial. .. is encompassed within that responsibility.” United States v. Vargas, 74 M.J. I, 8 (C.A.A.F. 2014) (internal quotations and citations omitted).  This is a complicated international terrorism case with a joint trial of five accused under a new statutory scheme with an unprecedented amount of classified evidence.  It will take time to try.

The Commission is at a loss as to how assigning the military judge at GTMO will make the litigation proceed at a faster pace.  Hearings require the presence of counsel and support personnel, apparently none of whom are being assigned to the Naval Station.  Unless the intent is to make the military judge ignore his duty to exercise discretion under the law and instead move the case faster to shorten his stay at GTMO, the purported change will not, and cannot, have its intended effect.  Moreover, any legitimate denial of delay requested by the Defense immediately gives rise to an issue as to whether the military judge acted in the interests of justice or personal convenience.  Though the DEPSECDEF may not have intended for the Military Judge to adjust his trial schedule to limit his personal inconvenience caused by living at GTMO, his actions did create the appearance of that intent.  An “objective, disinterested observer fully informed of all the facts and circumstances would harbor a significant doubt about the fairness of the proceeding.”


* [UPDATE:  A reader writes to note that the defendants have also raised the question whether it was permissible for the Convening Authority, in particular, to evaluate the progress of the commissions in the first instance, in light of 10 U.S.C. 948j(f), which provides:

Prohibition on Evaluation of Fitness by Convening Authority.-The convening authority of a military commission under this chapter may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to such judge’s performance of duty as a military judge on the military commission.
The government’s response to that claim is in Part IV (pp. 15-18) of its brief in al-Nashiri.  Judge Pohl did not reach that argument.  Do other readers have any thoughts on the section 948j(f) question?