Guantanamo Judge Denies Obama's Request for Delay
Friday, January 30, 2009; Page A14
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."