The chief judge at the Guantanamo Bay war crimes court Thursday rejected President Obama’s call to halt the prosecution of terrorism suspects, ruling that a delay in the case of a Saudi accused in the Cole attack would “not serve the interests of justice.”
Army Col. James L. Pohl said the government’s request to postpone until May the Feb. 9 arraignment of Abd al Rahim al Nashiri was “not reasonable.”
Prosecutors and defense lawyers in the case already had agreed to Obama’s request for a four-month suspension in the proceedings to review the military commissions process created under former President Bush.
Legal scholars and Pentagon officials said Pohl’s ruling was not insubordination because Obama’s proposal was a request, not an order.
Pohl pointed out that the rules for military commissions adopted by Congress in 2006 gave the military judges “sole authority” to grant delays once charges had been referred for trial.
“Technically, it’s within the judge’s discretion to treat this as a request or a motion on the part of the prosecutors and the government,” said Carl Tobias, a law professor at the University of Richmond. “We like to think that even military judges are independent, to some extent, of the commander in chief.
“But given the clear message in the executive orders of last week, it’s difficult to understand why that request wouldn’t be granted,” Tobias added. “If the issue is really forced, the judge would probably have to yield.”
One factor in the judge’s decision to proceed with Nashiri case could be that some evidence against the Saudi would not be admissible in U.S. federal court, where critics of Guantanamo want the war crimes cases moved.
Nashiri is one of the terrorism suspects the Bush administration admitted waterboarding, an interrogation method in which a person is made to feel he is drowning. Eric H. Holder Jr., Obama’s nominee to be attorney general, called the technique torture during his confirmation hearing last week, and Obama has signed an executive order banning torture.
“Judge Pohl’s decision to unabashedly move forward in the Al Nashiri military commission case shows how officials held over from the Bush administration are exploiting ambiguities in President Obama’s executive order as a strategy to undercut the president’s unequivocal promise to shut down Guantanamo and end the military commissions,” said Anthony D. Romero, executive director of the American Civil Liberties Union.
Legal analysts said they doubted the standoff between Obama and Pohl would be allowed to mushroom.
The top official in the tribunal, former Pentagon judge and Bush appointee Susan J. Crawford, has the authority to step in and drop the capital charges against Nashiri, said his Navy defense lawyer, Lt. Cmdr. Stephen Reyes.
Crawford recently indicated a desire to distance herself from the legacy of Guantanamo by refusing to prosecute Mohammed Qahtani, a prisoner suspected of aiding the Sept. 11 plotters, on the grounds that his treatment under interrogation amounted to torture.
She also dropped charges in October against five prisoners connected with Al Qaeda recruiter Abu Zubaydah without explanation, stirring speculation that the government had been relying on evidence produced by “enhanced interrogation techniques” that wouldn’t be admissible even in the war crimes court.
Still, Guantanamo’s supporters in the Pentagon have continued to push ahead with trials. Just days before Obama’s inauguration, military prosecutors filed new terrorism charges against three of the five men Crawford dropped charges against.
A Pentagon spokesman insisted that Obama’s call for a halt in the proceedings would be honored.
“The Department of Defense is currently reviewing Judge Pohl’s ruling. We will be in compliance with the president’s orders regarding Guantanamo,” said Navy Cmdr. Jeffrey D. Gordon, a public affairs officer.
Military judges presiding over two other cases at Guantanamo, including that of alleged Sept. 11 mastermind Khalid Shaikh Mohammed and four others, agreed to suspend those proceedings last week after Obama made the request.