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Incompetency: An Easy Way for Obama to Deal with the USS Cole Case?

Defense lawyers have welcomed the development from the standpoint of having a greater platform from which to talk about al-Nashiri's torture as having formed his current mental state. Prosecutors have repeatedly stressed that this is a limited-scope inquiry to determine whether he's competent enough to understand proceedings and assist in his defense -- it puts no judgment on whether al-Nashiri was competent at the time of the crime, and the defense said they won't be alleging that he wasn't.

Navy Lt. Cmdr. Stephen Reyes noted in court this week that it's unusual for the prosecution to be the  party seeking the competency review. But the defense especially took issue with the government's desire to keep prosecuting the case even while the weeks-long competency review is conducted.

"If there is a belief that the defendant is incompetent, a belief affirmed by the granting of your motion, Your Honor, why would we want to go on, argue motions, and engage in a colloquy with the defendant, talk about very substantive motions when there's grounds to believe that he's incompetent and cannot -- because the competency evaluation goes to one question, one question only: Is he competent to stand trial?" Reyes argued on behalf of al-Nashiri. "But it's okay to proceed forward as if that really isn't an issue."

"We asked for a 706 board because there is evidence that supports that. We submit it does not rise to a preponderance of the evidence that the accused is presently suffering from a mental disease or defect such that he's incapable of understanding the proceedings or cooperating intelligently in his defense," said prosecutor Anthony W. Mattivi in a request to move forward.

"I just struggle with the concept of an outstanding issue about competency to stand trial and then we just proceed as if he is competent," Pohl said before suspending proceedings to allow for the capacity review.

If found incompetent, al-Nashiri would simply be held until he's found to be competent. Kammen told reporters it's his understanding his client would be "put into a facility to try to restore competence -- if that were to occur, the situation would progress."

Chief Prosecutor Brig. Gen. Mark Martins said his team "would certainly like to move faster but not at the risk of creating an issue." He concurred that "if someone at a later time with appropriate treatment becomes competent" then a trial can proceed.

For an administration that unsuccessfully tried to wish away this case once before, a finding of incompetency could be a no-muss solution to one of two death penalty cases at Gitmo.

If al-Nashiri went to trial -- as is hoped by next year -- and was acquitted, the government would still want to hold him in the face of international criticism.

If al-Nashiri was found guilty, the government would be under pressure to hand down the maximum possible penalty in the attack that killed 17 American sailors in October 2000. That would mean putting an al-Qaeda figure to death, something the U.S. may be unwilling to do especially as the administration has put a premium on building relations in the Muslim world -- though appeals would surely spill into future administrations before such a sentence could be carried out.

A finding of incompetency by the evaluation board, which would then be brought back to the military commission in April, would allow the government to quietly, indefinitely wipe its hands of the case -- but would bring little relief to the USS Cole victims and families that in February 2009 were promised "swift and certain justice within a legal framework that is durable" in a meeting with Obama.

Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals.