Belmont Club

Us versus Us

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.