Battle Over Judge’s Qualifications Adds to Military Commission’s Difficulties

      The pandemic has exacerbated several existing problems at Guantanamo Bay, as Carol Rosenberg reported in Friday’s New York Times. Among these is the perennial difficulty of finding qualified judges to preside over the Military Commissions. 
 
     This week’s events demonstrate how acute the difficulty has become. On Monday, 14 December, the Military Commissions’ Chief Judge, Col. Douglas K. Watkins, USAR, JAGC, issued an order re-detailing himself to the case after determining that the current judge, LtC. Matthew N. McCall, USAF, JAGC, lacked the experiential qualifications to serve. On Friday, 18 December, Khalid Sheikh Mohammed filed a motion to stay Col. Watkins’ order, setting the stage for litigation over LtC. McCall’s qualifications.
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     LtC. McCall’s brief tenure began under a shadow of doubt. Col. Watkins detailed LtC. McCall to the case exactly two weeks after the previous judge, Col. Stephen F. Keane, USMC, JAD, abruptly recusedhimself on 2 October 2020. As Steve Vladeck pointed out at the time, LtC. McCall, who spent most of his career as a military defense counsel, was nine months shy of the two years’ judicial experience required under the Military Commissions’ rules. On this basis, the Government repeatedly objected to LtC. McCall’s qualifications. Most recently, on 8 December, the Government filed a motion asking LtC. McCall to recuse himself. That motion was mooted by Col. Watkins’ 14 December order, in which he explained that although he thought that he could waive the two-year experiential requirement, he learned otherwise after seeking clarification from DoD officials. 
 
     Col. Watkins’ order will not be the last word on LtC. McCall’s qualifications. In his 18 December motion, Mr. Mohammed called for LtC. McCall’s reinstatement, arguing that he was qualified to serve under the Military Commissions Act, and that any contrary rules “must be disregarded.” Mr. Mohammed contended that Col. Watkins’ order “effectively granted the government’s requested relief,” violating both the Military Commissions’ rules and the defendant’s due process rights. Mr. Mohammed also faulted Col. Watkins’ action as “premised on his behind-the-scenes communication with and influence by” the DoD officials responsible for supervising the Chief Prosecutor. According to the motion, Col. Watkins erred by deferring to DoD “on a question of law which was properly within [his] own purview and for which he should have elicited briefing from all parties.” 
 
     Col. Watkins, who once before handled the case on a caretaker basis, is the seventh judge to preside over the proceedings since 31 August 2018. LtC. McCall’s replacement has yet to be announced. 

Dr. Michel Paradis

LOAC/GTMO Editor