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Nashiri's Challenge of the Military Judge Is Wise but Unsupported by Law

The Law Offices of Haytham Faraj, PLLC

The so called USS Cole bombing mastermind, Rahim Al-Nashiri, challenges the military judge assigned to hear his case. The challenge was raised by Nashiri’s lawyer, Mr. Richard Kamman. Mr. Kammen's motion was based on the fact that the judge was assigned for a term of one year which may be renewed depending on the progress of the commissions.While Mr. Kammen's motion is based on a legitimate concern, there is no legal basis for the motion, at least not according the Guantanamo Military Commissions rules. Mr. Kammen's motion challenges the military judge under the concern that a judge whose term must be renewed on an annual basis may be susceptible to improper influence in making decisions that must be free from any bias. In other words, if the judge has to worry about being approved for continued future employment, he may be more likely to make politically expedient decisions to remain in the good graces of the decision makers who assign him to the job. Such a concern is valid but, unfortunately for Mr. Nashiri, unrecognized in military jurisprudence which the commissions rely on.All military judges are selected to be judges by none judges and frequently by non-lawyers. Every member of the military who faces allegations of criminal misconduct and must go before a military judge faces the same issue, how can this judge act fairly in my case if he or she in answerable to someone else for their future career assignments and promotions?Fortunately, most, if not all, military judges take their duties seriously and approach their judicial functions with the decorum, responsibility, neutrality, and objectivity expected of judges. That does not mean that the system does not have problems. The fact that judges undertake to perform their judicial duties in a neutral and detached manner reflects the professionalism of military judges rather than a function of a justice system that remains susceptible to manipulation and to questioning regarding its legitimacy.Haytham Faraj, Esq.Mr. Faraj is a former Marine Corps infantry officer and military defense counsel in Chicago. He represents service members and others accused of violating the UCMJ during investigations and court martial proceedings. He also represents clients in Federal courts in white collar and other federal crimes.

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