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Yesterday I had a post questioning whether Judge Pohl retained the authority to refuse President Obama's executive order to shut down the military commissions, given the text of the Military Commissions Act and the fact that the commissions are not independent Article III courts. Hina Shamfi, an attorney with the ACLU, which is coordinating with the counsel representing Abd al Rahim al-Nashiri, points me to section 949b of the MCA:
No person may attempt to coerce or, by any unauthorized means, influence—"the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case [or] the action of any convening, approving, or reviewing authority with respect to his judicial acts...
"No person" probably also means the president himself. But that doesn't mean the ACLU is happy about Judge Pohl's decision, yesterday Anthony Romero put out a press release condemning it:
Judge Pohl's decision to unabashedly move forward in the al-Nashiri military commission case shows how officials held over from the Bush administration are exploiting ambiguities in President Obama's executive order as a strategy to undercut the president's unequivocal promise to shut down Guantánamo and end the military commissions. Judge Pohl's decision to move forward despite a clear statement from the president also raises questions about Secretary of Defense Gates – is he the 'new Gates' or is he the same old Gates under a new president? Secretary Gates has the power to stop the military commissions and ought to follow his new boss' directives.The most likely option here is that the government will drop the charges until the new system for trying detainees is determined.
As Dafna Linzer points out, al-Nashiri is among the detainees we know have been waterboarded.
-- A. Serwer
