Thursday, January 29, 2009

'Guantanamo judge refuses Obama's request for delay'

That's the Reuters headline and here's the story which is sure to stir up controversy:

MIAMI (Reuters) - The chief judge for the Guantanamo war crimes court on Thursday refused President Barack Obama's request to delay court proceedings against a prisoner charged with plotting an attack that killed 17 U.S. sailors.

Hours after taking office last week, Obama ordered Guantanamo prosecutors to seek 120-day delays in all pending cases in order to give his new administration time to decide whether to scrap the trials.

But the judge, Army Col. James Pohl, said tribunal rules give the judges sole authority to delay cases and that postponing proceedings against Abd al Rahim al Nashiri was not reasonable and "does not serve the interest of justice."

Nashiri is charged with conspiring with al Qaeda to send an explosives-laden boat into the side of the USS Cole in the Yemeni port of Aden in 2000. The attack killed 17 U.S. sailors and Nashiri would face execution if convicted. His arraignment was set for early February.

I, along with many others, bought last week's headline that Obama had suspended all military tribunals for 120 days so that second paragraph made me take a look at the actual executive order because that story states that the administration had simply asked prosecutors to seek those delays - in which case that judge may well be within his rights. So which version is true?

Relevant sections:

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.


Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

"Halted" seems definitive but this isn't exactly that clear cut.

"We are consulting with the Pentagon and the Department of Justice to explore our options in that case," [WH spokespuppet] Gibbs said.

The Office of Military Commissions, which manages the prosecutions, may have to temporarily drop charges against al-Nashiri to comply with the presidential order, said Cmdr. Jeffrey Gordon, a spokesman for that agency.

Pentagon spokesman Geoff Morrell discounted that possibility but said that no proceedings against al-Nashiri would be going forward.

"The bottom line is, we all work for the president of the United States in this chain of command," Morrell said. "And he has signed an executive order that has made it abundantly clear that until these reviews are done, all of this is on hiatus."

Stay tuned.

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