Barack Obama wanted all proceedings for military tribunals halted for 120 days in order to determine how to proceed with the adjudication of the remaining detainees at Guantanamo Bay. In a serious blow to those plans, a Gitmo military judge rejected the delay and instructed the government to proceed with its case against Abd al-Rahim al-Nashiri. Obama will either have to comply or release Nashiri:
A military judge in Guantanamo Bay has 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 plan to buy time as it reviews 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 withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent. …
But Judge James Pohl, an Army colonel, said he found the government’s reasoning “unpersuasive.”
“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.”
Indeed. Most people conveniently forget that Congress has twice addressed the structure of military tribunals, the last time in a Democrat-run Congress and on a bipartisan basis. Those laws allow for review by federal courts on appeal and remain in force. 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 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.
Obama has a big, big problem on his hands now, and few options other than prosecution in the tribunals he opposes.