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Judge Denies Government's Request to Halt Guantanamo Detainee's Legal Proceedings
Susan J. Crawford, the Pentagon official who approves charges and refers cases to trial, can withdraw charges, an action that would stop proceedings without reference to the judge. Withdrawing charges "without prejudice" would let the government reinstate them later in a military commission. Or it could allow the cases to be moved to federal court or military courts-martial if Obama abolishes the existing system for prosecuting detainees.
Some military defense lawyers have urged the withdrawal of charges in all cases, saying it would be a clear indication from the administration that the military commissions are dead. If Crawford withdraws charges in the Nashiri case, said some lawyers in other cases, including the trial of five Sept. 11 suspects, they would cite the decision to 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 Army Maj. Jon Jackson, who is defending Mustafa Ahmed al-Hawsawi, an alleged Sept. 11 conspirator.
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, lawyers said.
Nashiri's military defense attorney, Cmdr. Stephen C. Reyes, did not object to postponing the arraignment but requested that discovery and other issues go forward. "It's somewhat of a shock," he said, adding that the administration's only option appeared to be the withdrawal of charges.
Pentagon spokesman Geoff Morrell said at a briefing yesterday 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."
Nashiri was captured in the United Arab Emirates in late 2002 and was turned over to the CIA. He is one of three detainees who the government has acknowledged were subjected to waterboarding, an interrogation technique that simulates drowning and has been described as torture by human rights groups and by Eric H. Holder Jr., the nominee to be attorney general.
Nashiri was transferred to Guantanamo Bay in September 2006 along with 13 other "high-value" detainees, including Mohammed.
Staff researcher Julie Tate contributed to this report.