January 29, 2009

Military Judge Shockingly Chooses to Follow Law, Not Obamic Decree

Military Judge Col. James Pohl decided to continue with the arraignment of Abd al Rahim al-Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen in 2000, an attack that killed seventeen American sailors and wounded fifty.

Nashiri, one of the Big Three who was waterboarded, is about to be arraigned by a military commission at the Guantanamo Bay Detention Facility. But President Barack H. Obama wants to personally "review" all 245 cases before allowing the George W. Bush policy of trying the detainees by military commissions to proceed. To that end, Obama signed an executive order calling for a delay of at least 120 days, while he decides whether to:

1. Close the facility, drop all charges against everybody, and release all the terrorist detainees in the United States;
2. Close the facility and rendite all the detainees to European allies -- who refuse to accept them;
3. Or close the facility and transfer all the detainees to ordinary federal courts -- which will promptly order the feds to produce all classified data from the war on the Iran/al-Qaeda axis in open court, thus conveying it all to al-Qaeda, Hezbollah, Hamas, Jemaah Islamiya, and every other militant Islamist terrorist organization in the world... and when even the Obama administration refuses to do this, the civilian courts will dismiss all charges against each detainee, releasing them into the United States.

But bizarrely, Judge Col. Pohl has ruled that his military commission will follow the law, which mandates an arraignment hearing by a certain date, rather than Commander in Chief's the hastily drafted delay:

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."

How can mere law trump the pronunciamentos of the One We Have All Been Waiting For? What's the matter with that judge... didn't he get the memo?

The judges in 20 other military-commission cases that were set to proceed within the next 120 days have purportedly agreed to the postponement; Nashiri's is the only case where the judge denied the prosecutor's motion, at least so far. Now an ordinary reasonable person, one would imagine, would take the obvious compromise: accept the postponements of the other cases and order the prosecutor to proceed with the Nashiri case, as Col. Pohl ordered.

But the One is not to be thwarted or ignored. He is determined that Nashiri will not be arraigned during that period, and they're willing to use any means necessary to ensure that President Barack H. Obama, not Judge Col. James Pohl, wins this standoff:

Pentagon spokesman Geoff Morrell said at a briefing today that "this department will be in full compliance with the president's executive order. . . . And so while that executive order is in force and effect, trust me, there will be no proceedings continuing down at Gitmo with military commissions."

So where does that leave us? What means are necessary? I shall have to tell you what the Obama administration is considering, because you would not guess it in a thousand tries: They are looking into the prospect of withdrawing all charges against Nashiri; and then, 120 days from now, trying to refile them.

With the charges withdrawn, obviously Col. Pohl could not proceed. If they're able to refile the charges after the review period, Obama's advisors on military law evidently believe that the case can simply pick up again and proceed as normal. Or else maybe they would have to start all over again; but in any case, Obama will have asserted his authority and shown the military who is boss.

When military defense attorneys heard what was in the offing, some of them said they may force the administration to withdraw all charges against all detainees in Gitmo; I think what they are saying is that they would change their minds about stipulating to the postponement, thus forcing the hand of "the Pentagon official who approves charges and refers cases to trial."

That person is none other than Susan J. Crawford, of course, who came to our attention most recently when she flatly declared that at least one detainee in Guantanamo Bay had been "tortured;" she could not point to a single interrogation tactic that she would argue was torture itself; but she decided the concatenation of tactics bothered her delicate sensibilities:

You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

She decided not to file charges against the detainee (Mohamed Mani Ahmad al-Kahtani, the "twentieth 9/11 hijacker") in that case. Of course, many, many other prisoners were interrogated using "a combination of things" and could claim it had "a medical impact" on them; thus, they, too, can claim they were "tortured" according to the unique, subjective, virtually iconoclastic standard set by the Pentagon's own convening authority. Thus, she had already set us up for the kill even before Obama's order.

If Crawford now withdraws the charges against Nashiri, and if the military defense attorneys follow through on their threat, Crawford will be caught between the Devil and a deep, blue, hard place:

• On the one hand, if the defense obects to the postponement, many military judges may follow Pohl's lead and side with the defendant's right to a speedy trial, thus denying the prosecutors' motions;
• On the other hand, Obama has issued marching orders to his staff that "there will be no proceedings" until the review period is up, no matter what.

This may leave Ms. Crawford with no option but to withdraw all charges against each detainee. But on the third hand, that path is also fraught with peril: If the arraignment is begun and the defendant pleads not guilty before Crawford can navigate the Pentagon labyrinth and formally withdraw the charges, then at least some defense experts claim that jeopardy attaches... and the Obama administration might not be allowed to reinstate the charges later.

At this point, the Supreme Court rulings of Hamdan and Boumediene, so eagerly praised and even sought by liberal Democrats such as Barack H. Obama, may rear up and bite the country hard. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Court held that it retained jurisdiction to hear habeas corpus filings under the law that created the first set of military commissions, created under the authority of the Detainee Treatment Act of 2005; it also struck those commissions down. The case was decided 5-3, with Chief Justice John Roberts recusing himself, as he had been on the appellate-court panel whose decision was under review by the Supreme Court; but considering his vote on the Boumediene case below, I suspect this would otherwise have been a 5-4 decision.

Then just last year, in Boumediene v. Bush, 553 U.S. ___ (2008), the Court decided a straight-up habeas corpus case arising out of the second stab at military commissions, this time under the authority of the Military Commissions Act of 2006, enacted by the Republican-controlled Congress in October 2006 as a specific remedy for the problems the Court found with the first version of the commissions.

Justice Anthony Kennedy, writing for yet another 5-4 decision, held that the prisoner did indeed have habeas rights; and further, that such rights could not be stripped by subsequent legislation unless that legislation included a "substitute" method for determining guilt that included, well, all the protections offered by the Constituition to defendants in civilian trials.

Therefore, I doubt that the Court as presently constituted (it won't get better with Obama making future appointments) will allow Susan Crawford or Barack Obama or anyone else to keep Nashiri and all the other detainees in indefinite detention if they have withdrawn the charges and are prevented by double-jeopardy from refiling them later.

I suspect the only remedy available in such a case will be the immediate release of all such prisoners... right here in the United States, since no other nation will likely take them. We can't even deport them, because they would clearly face execution and likely torture in their host countries -- and that violates the same section of the Geneva Conventions that so impressed the justices in the majority on both cases: John Paul Stevens, Ruth Bader Ginsberg, David Souter, Stephen Bryer, and of course the swing vote, Anthony Kennedy.

Oh well; that the way the cookie bounces when conservatives stay home and refuse to vote for a Republican Congress and president.

The only solution here will be for President Obama to suck it up and just allow the Nashiri case to proceed, ordering Crawford not to withdraw the charges against that detainee. Without the precedent of dropping the charges for one, the other defense attorneys won't have a snowball to stand on trying to force the withdrawal of charges in other cases. If they refuse to agree to the continuance, then those cases will also simply move forward.

So what are the odds that Obama will accept defeat on this issue, with the mild humiliation and political hit it will bring, rather than jeopardize the centerpiece of the defense against the Iran/al-Qaeda axis -- the detention and trial of terrorist murderers and conspirators? I suppose it depends upon which weighs more heavily in the president's mind: the good of the country or his own personal authority.

Yikes.

Hatched by Dafydd on this day, January 29, 2009, at the time of 6:43 PM

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