Legal Commentary

Military Commission Judge Defies Obama Executive Order; Refuses To Halt Proceedings

By Big Tent Democrat

In an Executive Order, President Obama directed that:

The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

(Emphasis supplied.)Via litigatormom, we discover that one military commission judge has chosen to defy this executive order:

Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, portions of which were read to The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

Perhaps government attorneys failed to bring President Obama's Executive Order to Judge Pohl's attention. As I read the order, halting proceedings is not subject to the discretion of the military judge. The Military Commissions Act provides the President, acting through the Secretary of Defense, absolute authority over the military commissions process.

If Judge Pohl is in fact aware of President Obama's executive order, I would be curious to know on what basis he feels empowered to defy an order of the President. Perhaps Judge Pohl views that military commissions as a species of Article 1 court not subject to the President's orders. A very curious development.

Speaking for me only

Full post as published by TalkLeft on January 29, 2009 (boomark / email).