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Military Judge Denies Obama Request to Suspend Hearings at Guantanamo

Discussion in 'Political Zone' started by sacase, Jan 29, 2009.

  1. sacase

    sacase Well-Known Member

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    http://www.washingtonpost.com/wp-dy...9/01/29/AR2009012902021.html?wprss=rss_nation

    A military judge in Guantanamo Bay today denied the Obama administration's request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.

    The decision throws into some disarray the administration's efforts to buy time to review individual detainee cases as part of its plan to close the U.S. military prison at the Guantanamo naval base in Cuba. The Pentagon may now be forced to temporarily withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent.

    Nashiri is facing arraignment on capital charges on Feb. 9, and Judge James Pohl, an Army colonel, said the case would go ahead.
    "We just learned of the ruling here . . . and we are consulting with the Pentagon and the Department of Justice to explore our options in that case," White House spokesman Robert Gibbs said. Asked at a news briefing whether the decision would hamper the administration's ability to evaluate the cases of Guantanamo detainees, Gibbs replied: "No. Not at all."

    In one of his first actions, President Obama issued an executive order instructing Secretary of Defense Robert M. Gates to make sure all military commission proceedings "are halted" during a review of the cases of individual detainees at Guantanamo and of the broader system of military commission trials.

    The administration chose to achieve that by instructing military prosecutors to seek 120-day suspensions of legal proceedings in the cases of 21 detainees who have been charged. Approximately 245 prisoners are being held at Guantanamo.

    The request was quickly granted in other cases when prosecutors told military judges that a suspension was in the "interests of justice" so that the "president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

    But Pohl said he found the government's reasoning "unpersuasive" and he clearly felt he was not bound to bow to the administration's wishes.

    The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

    "The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, which was obtained by 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."

    The judge wrote that "the public interest in a speedy trial will be harmed by the delay in the arraignment."

    Nashiri's military defense attorney did not object to postponing the arraignment but requested that discovery and other issues go forward

    "It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney.

    Pentagon spokesman Geoff Morrell said at a briefing today that "this department will be in full compliance with the president's executive order. . . . And so while that executive order is in force and effect, trust me there will be no proceedings continuing down at Gitmo with military commissions."

    Susan Crawford, the Pentagon official who approves charges and refers cases to trial, can withdraw charges, an action that would halt proceedings without reference to the judge. It would also allow the government to reinstate charges either in a military commission in Guantanamo or in federal court or military court if it decides to abolish the exiting system of prosecuting detainees.

    But it would bring the Nashiri case back to square one and cost the government time if it attempted to re-start the case within military commissions system. Some military defense attorneys had urged the withdrawal of charges in all cases, which would have been a clear indication that military commissions were dead. But the Obama administration instead sought only a suspension, a decision that some human rights activists described as 'life support" for the current system.

    If Crawford withdraws charges in the Nashiri case, some military defense attorneys in other cases, including the trial of suspects in the Sept. 11, 2001, attacks, said they would also seek the withdrawal of charges against their clients.

    "There should be a withdrawal of charges in all cases and we will directly engage the prosecutors and [Crawford] on that," said Jon Jackson, an Army major, who is defending Mustafa al-Hawsawi, an accused 9/11 conspirator.

    And if an arraignment goes ahead and Nashiri enters a plea, subsequent proceedings would be subject to double jeopardy rules, according to defense lawyers. That could severely complicate the administration's ability to move Nashiri's case to federal court or courts martial, defense lawyers said.

    Pentagon officials, who requested anonymity, said they believe Crawford will have no option but to withdraw charges without prejudice in Nashiri's case and possibly all cases going to trial in Guantanamo Bay.

    Nashiri has been in U.S. custody since late 2002, and he is one of three detainees the government has acknowledged was subjected to an interrogation technique that simulates drowning while he was held by the CIA.

    Nashiri was transferred to Guantanamo Bay in September 2006 along with other "high-value" detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks.

    Staff researcher Julie Tate contributed to this report.

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