The chief judge of the Guantanamo war court, Army Col. James Pohl, on Thursday spurned a request from President Barack Obama to freeze the military commissions there, and said he would go forward with next month’s hearing for an alleged USS Cole bomber in a capital terror case.
The decision was immediately denounced by the head of the American Civil Liberties Union, which said the ruling smacked of Bush administration holdovers at the Pentagon trying to prevent President Barack Obama from fulfilling his promise to close Guantanamo.
The order, said ACLU executive director Anthony Romero, “raises serious questions about whether Secretary of Defense (Robert) Gates is the ‘New Gates’ or is the same old Gates under a new president. Gates certainly has the power to put a halt to these proceedings, and his lack of action demonstrates that we may have more of the same — rather than the change we were promised.”
Meanwhile, retired U.S. Navy Cmdr. Kurt Lippold, who was commander of the Cole at the time of the attack, hailed the judge’s ruling as “a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.”
Lippold criticized Obama’s order to freeze the war court and empty the prison camps. “Any delay in moving forward with the military commissions process is denying justice to the victims who have suffered as a result of these terrorist acts.”
Pohl’s decision stunned officials at the Department of Defense and White House, which had just begun to grapple with Obama’s order to freeze the war court and empty the detention center within a year.
”The Department of Defense is currently reviewing Judge Pohl’s ruling,” said Navy Cmdr. Jeffrey Gordon. “We will be in compliance with the president’s orders regarding Guantanamo.”
White House aides noted that the order only applied to a single case and that all other pending trials had been stopped. White House Opress Secretary Robert Gibbs said the other stays “give us what we need to evaluate who is at Gitmo and make the decisions commensurate with the executive order that the president signed.”
But there was no comment on what other steps Obama might take or whether he had the power as commander-in-chief to overrule the military judge.
Nashiri’s Pentagon-appointed defense lawyer, Navy Lt. Cmdr. Stephen Reyes, said the prosecutor could still dismiss the charges against his client to comply with the president’s request for a freeze. The charges could later be reinstated.
”The only way they can give effect to the president’s order is by dismissing the charges,” Reyes said.
Pohl’s ruling came in the case of Abd el Rahim al Nashiri, a Saudi Arabian who faces a Feb. 9 arraignment on charges he helped orchestrate the October 2000 suicide bombing of the USS Cole. The bombing killed 17 U.S. sailors.
Nashiri is now held at the remote U.S. Navy base in southeast Cuba after years of CIA detention during which, the agency has confirmed, he was subjected to waterboarding.
”On its face, the request to delay the arraignment is not reasonable,” the judge, Army Col. James Pohl, wrote in his three-page ruling denying a prosecution request to delay Nashiri’s first court appearance.
Pentagon prosecutors filed identical delay requests soon after Obama took office, arguing that the commander-in-chief needed a 120-day suspension in war court hearings to give the new administration time to study the process.
Other war court judges, including the Army colonel presiding at the trial of the accused plotters of the Sept. 11, 2001, attacks, agreed to the delay.
But Pohl said he would not accede to the request. ”The public interest in a speedy trial will be harmed by the delay in the arraignment,” he wrote.
He also noted that nothing would take place at the arraignment that would prevent Obama from taking other steps to stop the trial and that under the 2006 Military Commissions Act, it was up to a judge tio grant any delay. “The commission is bound by the law as it currently exists not as it may change in the future.”
Because the Pentagon sought military execution for Nashiri, the American Civil Liberties Union hired death penalty specialists to assist in his defense.
Meantime, the Defense Department division that administers the commissions was firmly on hold Thursday, with no plans to mount a war court air shuttle for reporters to see Pohl’s scheduled Feb. 9 arraignment.