By Peter Finn
Washington Post Staff Writer
Friday, January 30, 2009
A military judge threw a wrench yesterday into the Obama administration's plan to suspend legal proceedings at Guantanamo Bay, denying the government's request to delay the case of a detainee accused of planning the 2000 attack on the USS Cole.
To halt proceedings for 120 days -- as Obama wants in order to conduct a review -- the Pentagon may be forced to temporarily withdraw charges against Abd al-Rahim al-Nashiri and possibly 20 other detainees facing trial in military commissions, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks.
The administration, which expected military judges to agree to its motions seeking suspension, was taken aback by yesterday's decision. Judges in other cases, including one involving five Sept. 11 defendants, had quickly agreed to the government's request.
"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 conference whether the decision would hamper the administration's ability to evaluate detainees' cases, Gibbs replied: "Not at all."
Nashiri, a Saudi citizen of Yemeni descent, is facing arraignment Feb. 9 on capital charges relating to the al-Qaeda strike on the Cole in Yemen that killed 17 U.S. service members and injured 50 others in October 2000.
The chief military judge at the detention center at Guantanamo Bay, Cuba, Army Col. James Pohl, said that he found the government's arguments "unpersuasive" and that the case will go ahead because "the public interest in a speedy trial will be harmed by the delay in the arraignment."
The administration had argued that the "interests of justice" would be served by a delay that would allow the government to review the approximately 245 prisoners at Guantanamo to figure out who should be prosecuted and how, and who can be released.
"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," Pohl wrote in an opinion obtained by The Washington 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 decision was lauded by some survivors of the attack on the Cole, who said it illustrated the independence of the military judiciary at Guantanamo.
"I'm absolutely delighted," said Navy Cmdr. Kirk Lippold, the former skipper of the Cole. "It proves the military commissions work without undue command influence, and this decision puts us back on track to see an accounting for al-Nashiri's terrorist acts."
But human rights activists said the administration should now withdraw charges, something it had seemed reluctant to do, to allow the option of preserving or reforming military commissions, albeit at a new location.
"Given that the Guantanamo order was issued on day two of the new administration, the president was clearly trying to make the immediate decisions needed while giving himself the flexibility to deal with the rest down the road," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. "That said, the only sure way to ensure that the commissions process is brought to a halt is to now withdraw the charges."
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.