A military judge at Guantanamo, in defiance of an executive order, has decided to carry on the case against one of detainees accused in the USS Cole attack.
The decision throws into some disarray the administration's plan to buy time as it reviews individual detainee cases as part of its plan to close the U.S. military prison at the Guantanamo naval base in Cuba. The Pentagon may now be forced to withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent.
In one of its first actions, the Obama administration instructed military prosecutors to seek 120-day suspensions of legal proceedings in the cases of 21 detainees who have been charged. There are approximately 245 prisoners held at Guantanamo.
The request was quickly granted in other cases when prosecutors told military judges that a suspension was in the "interests of justice" so that the "president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."
But Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."
"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, portions of which were read to The 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."
Judge Pohl is in defiance of a Presidential order. The intial executive order requesting a delay in proceedings did leave some wiggle room for judges as it came in the form of a request rather than an order. But, and this is a big but, the executive order [pdf] released the following day, on the closing of Guantanamo and disposition of detainees, specifically directs the cases to cease:
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. [emphasis mine]
Thus, the Washington Post has this story partially wrong. Pohl didn't merely deny Obama's request, he's defying a presidential order, which in accordance with the Military Commissions Act the president halted the proceedings, because that legislation put the military commissions under the authority of the executive branch.
Gibbs was asked about the issue at today's press briefing and said [paraphrasing] that the Pentagon and the Justice Department are determining what action to take, commensurate with the executive orders.
(H/T BTD at TalkLeft)