Post by MacBeth on Jan 29, 2009 13:00:42 GMT -5
By Peter Finn
Washington Post Staff Writer
Thursday, January 29, 2009; 12:23 PM
A military judge in Guantanamo Bay has denied the Obama administration's request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.
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."
Nashiri is facing arraignment on Feb. 9, and Pohl said the proceedings would go ahead.
Nashiri's military defense attorney did not object to postponing the arraignment but requested that discovery and other issues go forward
"It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney. The Pentagon had no immediate comment.
Susan Crawford, the Pentagon official who approves charges and refers cases to trial, can withdraw charges, an action that would halt proceedings without reference to the judge. The government, however, has the ability to reinstate charges, either in a military commission in Guantanamo or in federal court or a regular military court if it decides to abolish the existing system of prosecuting detainees.
But attempting to restart the case within military commissions would bring the Nashiri case back to square one and cost the government time.
And if an arraignment goes ahead and Nashiri enters a plea, jeopardy would attach, according to defense lawyers. That could severely complicate the administration's ability to move Nashiri's case to federal court or courts martial, defense lawyers said.
In an executive order on Guantanamo, the Obama administration said that the "cases of individuals detained at Guantanamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed."
The administration did not indicate a preference for the kind of court in which it would like to prosecute detainees. The 120-day delay was designed to help it reach such decisions as cases are reviewed.
www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?hpid=topnews
Washington Post Staff Writer
Thursday, January 29, 2009; 12:23 PM
A military judge in Guantanamo Bay has denied the Obama administration's request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.
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."
Nashiri is facing arraignment on Feb. 9, and Pohl said the proceedings would go ahead.
Nashiri's military defense attorney did not object to postponing the arraignment but requested that discovery and other issues go forward
"It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney. The Pentagon had no immediate comment.
Susan Crawford, the Pentagon official who approves charges and refers cases to trial, can withdraw charges, an action that would halt proceedings without reference to the judge. The government, however, has the ability to reinstate charges, either in a military commission in Guantanamo or in federal court or a regular military court if it decides to abolish the existing system of prosecuting detainees.
But attempting to restart the case within military commissions would bring the Nashiri case back to square one and cost the government time.
And if an arraignment goes ahead and Nashiri enters a plea, jeopardy would attach, according to defense lawyers. That could severely complicate the administration's ability to move Nashiri's case to federal court or courts martial, defense lawyers said.
In an executive order on Guantanamo, the Obama administration said that the "cases of individuals detained at Guantanamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed."
The administration did not indicate a preference for the kind of court in which it would like to prosecute detainees. The 120-day delay was designed to help it reach such decisions as cases are reviewed.
www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?hpid=topnews
