The Washington Post reports that a military commission judge has refused to suspend hearings despite President Obama’s instructions to do so for a period of 120 days. The Pentagon, which is determined to be in “full compliance” with the President’s order is considering withdrawing the charges so that the hearings cannot go forward, now that the judge’s refusal has thrown a wrench into the works.
A military judge in Guantanamo Bay today 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 efforts to buy time to review 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 temporarily withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent. …
The government, Pohl wrote, sought a delay because if cases went ahead, the administration’s review could “render moot any proceedings conducted during the review”; “necessitate re-litigation of issues”; or “produce legal consequences affecting options available to the Administration after completion of the review.”
“The Commission is unaware of how conducting an arraignment would preclude any option by the administration,” said Pohl in a written opinion, which was obtained by 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.”
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. It would also allow the government to reinstate charges either in a military commission in Guantanamo or in federal court or military court if it decides to abolish the exiting system of prosecuting detainees.
But it would bring the Nashiri case back to square one and cost the government time if it attempted to re-start the case within military commissions system. Some military defense attorneys had urged the withdrawal of charges in all cases, which would have been a clear indication that military commissions were dead. But the Obama administration instead sought only a suspension, a decision that some human rights activists described as ‘life support” for the current system.
If Crawford withdraws charges in the Nashiri case, some military defense attorneys in other cases, including the trial of suspects in the Sept. 11, 2001, attacks, said they would also seek the withdrawal of charges against their clients.
It will be interesting to see how the cases of Nashiri and other high-profile terror suspects are eventually handled. Planet Washington notes:
The detainee involved, Abd al-Rahim al Nashiri, is charged with being the mastermind of the 2000 attack on the Cole, which killed 17 U.S. sailors. But he has another claim to fame: He’s one of the three Guantanamo detainees that the CIA has acknowledged were waterboarded while in secret custody. (The others are Khalid Sheikh Mohammed, the alleged 9/11 mastermind, and Abu Zubaydah, another alleged top-level al Qaida figure).
Nashiri’s waterboarding will almost certainly be an issue in any future trial, military or otherwise. During his status review hearing at Guantanamo March 14, 2007, six months after the CIA turned him over to the military, he said he was tortured into confessing his involvemnt in the Cole attack and seven other terrorist incidents. According to the Pentagon transcript of that proceeding “The detainee states that he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him.”
Nashiri’s cousin was one of the suicide bombers in the 1998 Kenya U.S. embassy bombing.
For further reading, look here. I think any society can proscribe any form of interrogation and any form of trial it deems to be unacceptable. However, it is important for the public to understand that by taking this stance, certain costs may have to be borne; but that’s OK if they are borne willingly in the full knowledge of the sacrifice involved and that political authority in pursuing this policy takes full responsibility for the tradeoffs. Any information that may be obtainable by these means even when its acquisition may save lives, will be off limits and society should know this going in. The judge’s refusal to suspend hearings and the possible withdrawal of charges against the accused highlights how difficult making these tradeoffs will be. On the one hand the present administration would like to make a political statement by shutting down the prisons and the commissions. On the other hand, the likely outcome of these actions is that some very dangerous people may walk away scot-free if they don’t wind up winning a civil suit worth millions into the bargain. What some bureaucrats are probably hoping for is to craft a way to achieve the same results while appearing to do things differently. This was the attraction of “rendition” and the reason why the possibility of all kinds of waivers are still bruited about.
As a matter of law, can a military judge refuse an order from the president? Is there such thing as an independent judiciary within the military, even though judges fall under the chain of command? My heart is with the judge, but I don’t think he has a leg to stand on.
Obama, who says he is not a Muslim, withdraws charges and lets the mastermind of the Cole Bombing go free?
Yeah, I’d love to see Dems own that one.
You are a Republican Challenger to a Dem Congresscritter. You run ads with Robert Reich saying “No White Men allowed” and then … this. The Cole Bomber mastermind set free by Obama, who claims he is no longer a Muslim.
Like a David Mamet movie, “Things Change.”
Politically, Obama and Dems face a mortal wound if they allow obviously guilty terrorists who killed Americans to go free.
It means they make a choice: terrorists over Americans. It’s as simple as that, and one that they will pay for. Big Time, as Cheney would say.
I would guess that he does. “Command influence” is frowned on within the military. It keeps commanding generals from railroading people. Within his sphere he probably has as much power as an ordinary federal judge. Big brass balls, intersting times.
Yup…the judge is on solid ground here. The Executive can influence the Prosecution but only to a degree. No one can, or should, wield and influence over the judge.
Now we shall see how the new administration reacts to a judge who follows the law.
In a salon in Chicago, One can argue with some exquisite precision over the nature of torture and it’s effectiveness. One can also opine on the worldwide effects of such activities on One’s country’s reputation. In the White House One can say “I won.”
But if One can say the last, One must face the consequences.
The bitch is we do too.
This was not a defendant (accused in this context) request rather it was a government request. Under the MCA, there is a speedy trial clock that starts to toll when the charges are referred to trial by the convening authority. The government then has 30 days to arraign the accused. Another clock also starts to run when charges are referred. The accused must be brought to trial within 120 days. Obviously if the accused requests a delay then the clock stops running until the delay is over at which time it picks up where it left off.
Secretary Gates did take steps sufficient to ensure…Military Commissions … are halted. The fact is that even though he is a military officer, a military judge doesn’t have to follow an order that he believes contravenes the law in some way.
The judge is well within his rights to deny the continuance request from the government. In his eyes there is no difference between the Obama administration and the Bush administration – same government.
The MCA states that the gov’t has to arraign Nashiri within 30 days of the charges being referred to trial. That is a speedy trial right that Congress gave an accused at a Military Commission. The gov’t has to then bring Nashiri to a full trial within 120 days after charges being referred. This rule of course allows for continuances being granted for a good reason. The judge in this case didn’t think that President Obama wanting to review Military Commissions was good enough. Military Judges do this all the time in Courts-Martial.
In a court-martial when a military judge doesn’t allow the prosecution to enter something into evidence the military judge is effectively telling the President no. There is no difference here.
The government now has a choice – withdraw the charges and bring them later in federal court, court-martial, military commission or dispose of the case in some other way determined by the administration.
By the end of this year, the shit pile that the Obama presidency and Pelosi Congress will be under will be ready for fermentation in the second year. I hope the government keeps on making mistakes, power plays, and blatant deception (“fiscal stimulus” bill). Just keep it a comin’. I don’t even think the Carter presidency got off to this auspicious a start.
The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES “RES IPSA LOQUITUR” BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012902021.html?wprss=rss_nation
Reason number 15 why I did not vote for him.
They want to shut down Gitmo, unfortunately, they don’t have a workable plan.
Some have talked of Federal Prisons:
Geneva does not allow housing these detainees with ordinary felons.
Others have “floated” the idea of housing them on a ship:
Once again, Geneva says no can do, they must be on land.
Thus, for those detainees not sent back to the ME, or released, a replacement for Gitmo will have to be constructed on a site yet to be determined.
The 253 that remain have been determined to be the worst/most dangerous.
Yet of those released so far, a fair number have gone back to the battlefield.
Luckily, releasees now are required to sign a statement that they will not rejoin the fight.
….no joke.
From McClatchy… “The judge said he doesn’t understand how an arraignment will hurt Obama’s ability to switch signals on the prosecution if he wants and that in any case the military commissions are creations of Congress.
The arraignment is set for Feb. 9.”
Congress may act before Feb. 9th. But to do what, or why. I think the judge is going to allow the accused their day in court. Just so.
At some point the official who decided to waterboard this particular captive should be compelled to explain, defend and justify his decision publicly. Did this official take into consideration the problems that eventually would develop if the captive was put on trial? If so, then how was that consideration outweighed by other considerations?
From what I understand about the situation, I can make a preliminary judgment that this particular decision was stupid. Why should all — or any — Republicans feel compelled to defend this official’s decision. Let him step forward out of the shadows, identify himself publicly and defend his decision himself. What did this decision gain for the USA that was more important than all the trouble it is causing for the USA now?
If I am the Commander-In-Chief and I have compelling reasons to believe that captured Terrorist X has knowledge of an imminent attack on the USA, then I as the Commander-In-Chief may (in my opinion) order that he be tortured to obtain his knowledge — no matter what the normal rules and laws are. One consequence of my decision, though, is that I probably relinquish the right to subject him to a normal trial afterwards. I will have to deal with him personally in some other manner. I recognize and accept that trade-off, and I can defend my decision to the world and to history.
From what I understand, I think such decisions were made by CIA Director George Tenet. Maybe he consulted with Vice President Dick Chaney, but the formal decision-maker was Tenet. I think President George Bush was deliberately kept away from the decisions. Maybe I’m wrong, but that’s my judgment of the publicly available evidence.
If the Democrats want to require Tenet to testify publicly about such decisions, then I’m all for it. Let’s subject him to questions, and let’s hear his explanations. If he can defend his decisions convincingly, then good for him. If he can’t do so, then he should take the blame he deserves.
The Democrats are now going to spend the next 4 months crying that they need time to review everything so they can craft a response. As if the world will stop for a commercial break, or PBS fundraiser that seems to last forever, while they sort out their plans. These are the people who spent the last 7 years killing trees to carry their windy denunciations of BushChenyHalliburtonChimpyMcHitler. They should have been preparing detailed shovel ready plans on this specific topic for almost six months now. This is not the supposedly unexpected financial crisis that got them elected. This is the policy issue that they were running on to begin with.
Mike:
a) Waterboarding is not torture, no matter how much the Dems attempt to rewrite the dictionary.
b) What other intelligence do you propose be made public for the delight and edification of an adoring jihadi public?
Mike, In one of the linked articles, the suggestion was made that the decisions were made by the AG and POTUS. Data input from everywhere…not limited to our own CIA, which already had itself limited severely by limits imposed by itself and a certain wall.
Krontekag, re b)if we don’t take ownership certainly the Grey Lady will.
I am not familiar with the rules of evidence for Military Commissions, but under US law, only the information obatined under coercion that directly relates to his guilt is excluded. If there is sufficient evidence from outside sources the fact that he may/may not have been waterboarded is irrelevant.
The right to freedom from self-incrimination (which the defendants at GITMO are not entitled to as they are not US citizens or on US soil) applies to forced confessions of guilt. If this human sewage was subjected to unpleasant circumstances to elicit information to prevent or halt AQ plans only the portion that concerns his involvement is excluded under the Constitution. Evidence that he may have provided that would have been found eventually or through other means is still admissable.
Being tortured (and I don’t believe that they were) is not exculpatory. You cannot say “Boo-Hoo, poor me, look what they did to me AFTER I was involved in a mass-murder” as a defense of that mass-murder. Events that occur after the fact are not evidence of innocence.
krontetag (@14):
Waterboarding is not torture, no matter how much the Dems attempt to rewrite the dictionary.
If a defendant has been waterboarded, any judge probably will exclude all post-waterboarding statements from a trial.
Your argument that you don’t consider waterboard to be torture won’t matter. Even if the judge agrees with your argument, he still will exclude all statements the defendant made after he was waterboarded.
Anton (@16):
If this human sewage was subjected to unpleasant circumstances to elicit information to prevent or halt AQ plans only the portion that concerns his involvement is excluded under the Constitution. Evidence that he may have provided that would have been found eventually or through other means is still admissable.
If the prosecution has enough compelling evidence beyond the defendant’s coerced statements, then wonderful. Let’s convict the defendant.
Let’s be clear, though, that the official who approved the waterboarding was making an implicit decision to exclude from any eventual trial all the statements that the captive would make after the waterboarding began.
Was that a wise decision for this official to make? If it turns out that the USA cannot try and convict the captive because of the waterboarding, then the official should have to answer criticisms of his decision.
Why should we Republicans reflexively defend this official’s decision? Why should we feel compelled to defend every decision made by every government official in the Bush Administration during the War on Terror? If some official made a decision that prevents us from trying this terrorist, then let the official himself defend his own decision. What all considerations did he weigh, and why was his decision to waterboard this captive the right decision if the waterboarding jeapordized an eventual trial and conviction?
The Attack on the USS Cole is what galvanized me into seeing the threat of Islam and the weak “I don’t give a damn about dead sailors” response from Clinton turned me from the Democratic party.
So here we are again. Democrats in charge and the brain behind the USS Cole attack is being tried or not.
weak response all over again.
*Ahem*
Remember that these people are NOT accused of crimes, they are believed to have been engaged in acts of war against the United States.
The Geneva Conventions prohibits trying lawful combatants for legitimate acts of war. War crimes trials can only be held after hostilities cease. If they are unlawful combatants, then under the Geneva Conventions they have no rights whatsoever.
The only legal purpose of the Military Commissions is to determine the detainees status vis a vis lawful or unlawful combatants.
This judge is a _man_. Regardless of whether he must follow the executive or not; since this is a lawful commisioned judge, seems he’s not under the executive branch.
The blending of military/executive VS judicial settign requires some new metaphor re-evaluation. I suspect this sort of activity actually causes some remapping of brain synapses. Painful and decisions made under too much pain are often deflected into paths of unrighteousness.
LarryD,
Although fashion has it that wars no longer need declaring. This nation does lawfully require that, in order to actually operate under it.
Policing actions, being a nether-world between here_and_there, put enormous pressures on our government, resulting in cracks and eroding pillars within its structure.
@20. LarryD: You hit the nail on the head, all the calls for trials are spurious. These are either legal combatants and thus must be help as P.O.W.s until the end of hostilities (or paroled, in the historical meaning of the word) or they are illegal combatants and thus they should be charged as such.
The Military Commissions job should be fairly easy, as far as I know none of the nations of the Earth have recognized AQ (or any of it’s branches) as a state, thereby making a treaty ending the hostilities pretty much a moot point and, per force, making anyone fighting on their behalf an illegal combatant. Not a lot of room for nuanced positions.
My earlier note was as to US criminal law, a process that none of these people are entitled to unless they were arrested on US soil, in which case they sould be treated as spies and shot out of hand.
When they come for us, I hope we get trials…
LarryD (@20)
War crimes trials can only be held after hostilities cease.
A military can try a captive for a war crime while a war is still waging. The trial does not have to be postponed until after the war.
The only legal purpose of the Military Commissions is to determine the detainees status vis a vis lawful or unlawful combatants.
The Military Commissions determine the detainees’ status, and the Military Commissions also try any detainees who are charged with crimes.
Anton (@23):
all the calls for trials are spurious. These are either legal combatants and thus must be held as P.O.W.s until the end of hostilities (or paroled, in the historical meaning of the word) or they are illegal combatants and thus they should be charged as such.
A military force may detain a captured enemy combatant without trial until the end of the war.
In some cases, the military force might additionally charge, try, convict and sentence such a captive for a crime. In such a case, the sentenced captive could be imprisoned (perhaps with hard labor) long after the war ends or could be executed.
In some cases, the military force might refrain from trying a captive and merely continue to detain him until the war ends. Of course, the military force also could also detain him for just a while and then release him before the war ends.
In this particular case of Nashiri, the US military has decided to try him. The US military does not have to try him, but has chosen to do so. The reason for trying him is that the US military will be able to imprison him long after the War on Terror ends or will be able to execute him. Even if he is acquitted in the trial, the US military can continue to detain him until the end of the War on Terror if he is deemed to be a combatant.
The decision to waterboard Nashiri in the past complicates the US military’s attempt to try him now. No matter whether or not the judge agrees that waterboarding is torture, the judge probably will exclude from the trial any statements Nashiri made after the waterboarding began.
If the exclusion of Nashiri’s statements from the trial has the consequence that Nashiri is acquitted in the trial, then he must be released when the War on Terror ends. Any time that President Obama declares that the War on Terror has ended, Nashiri will have to be released if he has not been or cannot be convicted of a crime.
I doubt that the waterboarding of Nashiri accomplished anything significant other than complicate the US military’s attempt to try and convict him. I think that waterboarding him was a stupid decision, and the official who made the decision would have to convince me otherwise.
“When they come for us, I hope we get trials…
Like the sailors on the Cole?…or the folks in the WTC?…or Daniel Pearl?…or Theo van Gogh?…or the 3/11 and 7/7 victims?….
Been a while since I said it, it bears repeating…the time with an important postscript:
Slaughter now or slaughter later.
Slaughter later = slaughter more.
author’s notes:
1. I believe the above statement to be a moral conundrum.
2. That subject and object are not identified therein is intentional.
18. Mike Sylwester:
“Why should we Republicans reflexively defend this official’s decision? Why should we feel compelled to defend every decision made by every government official in the Bush Administration during the War on Terror? If some official made a decision that prevents us from trying this terrorist, then let the official himself defend his own decision. What all considerations did he weigh, and why was his decision to waterboard this captive the right decision if the waterboarding jeapordized an eventual trial and conviction?”
Technically I’m a Republican (I only registered so i could vote for Romney in the primary) so im gonna take a swing at this.
The short answer is no one shoud “reflexively defend” anything except their first principles, so lets not let politics keep us from seeing past the ends of our noses, Mike.
Now I’m all in favor of transparancy in government and all that, but I dont think it’s necessarily a good thing to shine too harsh a public spotlight on the people that are3 tasked with making these kinds of decisions lest we find we have paralyzed them (or incentivised them to do something other than their best) out of fear that we will object to the manner or methods in which they have chosen to serve our interests.
I think wrechard essentially hits the nail on the head. As a socitey we need to openly debate and then spell out the principles that we want to guide us. Then task our people to perform in a manner that adheres to the agreed upon principles.
Accountability for deviating from the principles outlined by the public will should not be handled publicly in my opinion. If congress were functining as representatives of the people I would say that we should let them handle oversight… as things stand… I dont know.
The judge can refuse an order from the President if he considers that order to be in violation of law…which arguably he can…Congress authorized the military tribunals.
The Constitution is not a suicide pact. Lincoln asked for, and was given, suspension of Habeas Corpus, which allowed him to deal with the Copperhead Democrats and certain of the media in order to preserve the Union. Slavery and involuntary servitude are forbidden by the constitution, but the draft was not. German saboteurs on American soil were executed if captured, not given full constitutional rights.
Obama is making his choices, it’s up to us to hold him accountable when people start dying.
Doug
“The Constitution is not a suicide pact.”
Now if we could only get Obama and his followers to understand that…
“Slaughter now or slaughter later.
Slaughter later = slaughter more.”
But there will be no slaughter without laughter… And the band plays on.
“If a defendant has been waterboarded, any judge probably will exclude all post-waterboarding statements from a trial.
Your argument that you don’t consider waterboard to be torture won’t matter. Even if the judge agrees with your argument, he still will exclude all statements the defendant made after he was waterboarded.”
Which is why they should have never left the battlefield. Much easier to “waterboard” there and collect whatever information you can and then return him to the battlefield as a nonfunctioning terrorist. Preferably alive but not able to function at a level higher than a quadriplegic. Or just shoot the bastard…
And the band plays on :\
Jim
Mike:
Don’t display your ignorance of the military law any more than you have to. If water boarding is torture is being forced to endure Obama’s endless lies not the same type of torture or don’t you consider it to be torture.
Ah for the days of red hot irons and wiping people till they bled to death. Oops that what our enemies and ACLU do not our military. But its all torture to you.
Of primary importance here is the wee problem of jurisdiction. ubamas, as editor of, ahem, The Harvard Review, harrumph, should know this, and be aware that this is one of many ways a court uses to abuse its power.
The court, in its quest for usurpation, of power not enumerated to it, has spotted the weakness of ubamas failure to point this out, and plowed through the hole ubamas has left wide open. What a filthy, stinking, yellow bellied coward. And then he retains rendition, and makes no public statement on that, hoping no one in the press will say anything about it.
What a fool. He won’t even protect his office from courts that know no end to their powerlust, are never above sticking hey filthy nose and fangers where they no belong.
The issue should have been over by now, but ubamas, in his pampered state, thought the court would indulge a grace period, a honeymoon, if you will. But usurpers never miss a chance that weakness provides.