January 29, 2009 / 6:42 PM / 11 years ago

Guantanamo judge refuses Obama's request for delay

MIAMI (Reuters) - The chief judge for the Guantanamo war crimes court on Thursday refused U.S. President Barack Obama’s request to delay proceedings against a Saudi charged with plotting an attack that killed 17 U.S. sailors.

An inmate is pictured in his cell at the detention complex for terrorism suspects at the U.S. Naval Base at Guantanamo Bay, July 23, 2008. REUTERS/Randall Mikkelsen

The surprise ruling could force the Pentagon to withdraw the charges, though they could be refiled later if the Obama administration decides to keep the special tribunals at the U.S. naval base at Guantanamo Bay, Cuba.

Hours after taking office last week, Obama ordered Guantanamo prosecutors to seek 120-day delays in all pending cases to give his administration time to decide whether to scrap the widely criticized tribunals created by the Bush administration to try suspected terrorists outside the regular U.S. court system.

But the judge, Army Colonel James Pohl, said the law underpinning the tribunals gives the presiding judges sole authority to delay cases. He ruled that postponing proceedings against Abd al Rahim al Nashiri would harm the public interest in a speedy trial.

The White House was consulting with the Pentagon and Justice Department on a response, said spokesman Robert Gibbs.

Nashiri is charged with conspiring with al Qaeda to crash an explosives-laden boat against the side of the USS Cole in the Yemeni port of Aden in 2000. The attack killed 17 U.S. sailors and Nashiri would face execution if convicted. His arraignment is set for February 9.

Pentagon spokesman Geoff Morrell said Obama’s executive order freezing the trials, which are formally known as military commissions, would guide his department’s actions.

“This department will be in full compliance with the president’s executive order. There’s no ifs, ands or buts about that,” Morrell told reporters.

“While that executive order is in force and effect, trust me that there will be no proceedings continuing down at Gitmo (Guantanamo Bay) with military commissions.”

The military judge, however, noted that Obama directed his order “shall be implemented consistent with applicable law.” The 2006 law authorizing the trials still applied, he said.

Morrell said it appeared to be up to Susan Crawford, the Pentagon appointee overseeing the Guantanamo trials, to resolve the matter. She could withdraw the charges without prejudice, allowing them to be refiled again later.


The military alleges Osama bin Laden personally assigned Nashiri to attack U.S. or Western ships off Yemen. Nashiri was captured in the United Arab Emirates in 2002 and held in a secret CIA prison until his transfer to Guantanamo in 2006.

The CIA has said Nashiri was one of three “high-value” prisoners subjected to the simulated drowning technique known as waterboarding, and admitted destroying videotapes of his interrogations.

The port side damage to the USS Cole is seen in an October 2000 file photo. REUTERS/Aladin Abdel Naby

“From the time I was arrested five years ago, they have been torturing me,” Nashiri told a Guantanamo review panel in March 2007.

Crawford dismissed charges against another prisoner who was waterboarded and subjected to harsh interrogation techniques that she labeled “torture.” Defense lawyers have asked that the charges against Nashiri be dropped for the same reason.

Charges are pending against 21 Guantanamo prisoners, though Crawford has only referred 14 cases to trial. Judges have issued orders freezing the proceedings in six of those.

Additional reporting by Andrew Gray, editing by Alan Elsner

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