Gitmo Trial to Proceed

Apparently, one of the military judges in the Guantanamo Bay detention facility has denied the request by President Barack Obama to suspend tribunals there for 120 days. The judge, Colonel James Pohl, wasn’t persuaded by the administration’s arguments:

“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.”

The terrorist being tried is Abd al-Rahim al-Nashiri. As noted by Ed Morrissey, Nashiri is one of the masterminds of the attack on the U.S.S. Cole back in November, 2000, less than a year before the 9/11 terrorist attacks. The piece by the Washington Post I linked to above also states:

Nashiri has been in U.S. custody since late 2002, and he is one of three detainees the government has acknowledged was subjected to an interrogation technique that simulates drowning while he was held by the CIA.

Back in June of last year, CNN also mentioned something else about Nashiri:

Al-Nashiri has said he was tortured into confessing to involvement in the bombing, according to transcripts released by the military. U.S. officials have characterized him as al Qaeda’s former operations chief in the Arabian Peninsula.

The CIA has admitted to “waterboarding” al-Nashiri at a secret location in 2002; the tapes of the interrogation were destroyed in 2005.

So according to Nashiri, his confession was allegedly garnered through waterboarding. However, the idea that this was the case is highly questionable:

The U.S. military’s summary of evidence against al-Nashiri said an FBI source identified him as an important person in al Qaeda and heard he helped arrange the Cole bombing, according to documents released by the Pentagon in March 2007.

It seems to me that if Nashiri did confess while being “tortured”, and nobody knows if there was a confession, the government doesn’t need it in order to convict the terrorist.

What Col. Pohl did do was put Obama on the spot, and rightly so. As explained by Morrissey:

The judges should act on the laws at hand, not rumors of new policy coming down the pike. If all courts acted on that basis, trials would never take place.

The administration has three options, none of which will make everyone happy. Two of them are:

The Obama administration can withdraw charges, but to do so while keeping Nashiri detained will be tantamount to holding him without charge — which is what Democrats disliked about Gitmo in the first place. They could release him outright, but since Nashiri is one of the masterminds of the attack on the USS Cole, which killed 17 American sailors, it would be political suicide to do so. Setting the murderer of American service members free would not only send a terrible signal to the terrorist networks, it would also enrage the rank and file in the military.

Plus, if Nashiri is released, every other defense attorney representing the terrorists will also request releases, which would include Khaled Sheikh Muhammed, the mastermind behind 9/11. Like Nashiri’s release, a release of KSM would kill off Obama’s chances for re-election in 2012.

The third option is for Obama to let the trial happen and let things come what may. Thanks to Boumediene, the terrorist can still file a habeas challenge if he wants. If convicted, Nashiri can still appeal the verdict to the DC Circuit. But if Obama does let the trial go on in Gitmo, it will appear to the leftists and the Democrats that Obama approves of the military tribunal system set up by the 2006 Military Commissions Act, which wasn’t declared unconstitutional by any court ruling (up to this point). Even a verdict of not guilty won’t assuage the anger from the left.

The problem is Obama’s Executive Order regarding the closing of the detention facility at Gitmo. Leftists at TalkLeft and Daily Kos believe Col. Pohl is defying orders. Is Pohl doing that, however? Remember, Obama originally put in a request to have the tribunals halted, not ordered it. And even the ACLU’s Anthony Romero, via the first update to a post at TPMMuckraker, doesn’t say that Pohl is violating a direct order from the President:

Judge Pohl’s decision to unabashedly move forward in the al-Nashiri military commission case shows how officials held over from the Bush administration are exploiting ambiguities in President Obama’s executive order as a strategy to undercut the president’s unequivocal promise to shut down Guantánamo and end the military commissions. Judge Pohl’s decision to move forward despite a clear statement from the president also raises questions about Secretary of Defense Gates – is he the ‘new Gates’ or is he the same old Gates under a new president? Secretary Gates has the power to stop the military commissions and ought to follow his new boss’ directives.

The section in the Executive Order regarding the military commissions is quite clear:

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

Section 4 has to do with the review of all detainees. Based on what I’m seeing here, and in partial agreement with the ACLU’s Romero, it doesn’t look like Secretary of Defense Gates has completed what he needs to do to halt all of the trials. Therefore, Col. Pohl was well within his authority to deny the request of the President to stop the proceedings against Nashiri, since it doesn’t seem that the order from Gates to halt the proceedings has come through yet.

It’s possible Obama could fire Gates over this (a fourth option) if the Defense Secretary is either stonewalling the President or just not doing what was ordered quick enough. I mean, Obama could have just easily stated in the first applicable section of the Executive Order to halt all proceedings, and he didn’t do it. Like every other executive order he’s issued, they all seem to come with either exceptions, waivers, or loopholes that a freight train can go through. Even the ACLU’s Romero noticed it.

Earlier I said that Col. Pohl put Obama in a tough spot. But I’m thinking that Obama has put himself in this spot. He’s been trying to sound Presidential than actually being Presidential; at this point, no matter what he does in this situation, he’s going to piss someone off. A second update in that TPMMuckraker post contains this from the commander of the Cole, Kirk Lippold, who is now with the military families advocacy group Military Families United:

Today’s decision is a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago. This trial is a long overdue step toward accountability and justice for the attacks on the USS Cole. The seventeen American sailors who lost their lives on October 12, 2000, when we came under suicide terrorist attack by al Qaeda, were not just sailors. They were sons and daughters, husbands and wives, and friends to so many. The sacrifice of these sailors and all of our brave military service members who have died to protect this country and apprehend terrorists is a key reason why we should not close the detention facility at Guantanamo Bay precipitously.

By President Obama signing the executive order to close Guantanamo Bay within a year, he is not considering or addressing the impact on the families who have paid so dearly to defend our freedom.

This is pretty bad, considering Obama has never run anything in his political career other than campaigns, and he’s only been President for a little more than a week. With all that the country is going through right now, this kind of screw-up isn’t going the help the nation one bit. Our enemies are watching.