The chief judge of the Guantánamo war court Thursday spurned a presidential request to freeze the military commissions, and said he would go forward with next month's hearing for an alleged USS Cole bomber in a capital terror case.
Abd el Rahim al Nashiri, a Saudi Arabian, faces a Feb. 9 arraignment on terror charges he helped orchestrate the October 2000 al Qaeda suicide bombing that killed 17 U.S. sailors off the coast of Yemen.
Nashiri is now held at the remote U.S. Navy base in southeast Cuba after years of CIA detention in which the agency has confirmed it waterboarded him in secret custody.
"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 President Barack Obama took office, arguing that the commander-in-chief sought 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 Sept. 11, 2001, trial, had earlier agreed to the delay.
"The public interest in a speedy trial will be harmed by the delay in the arraignment," Pohl also wrote.
He noted that unless Congress amended the 2006 Military Commissions Act, ``the commission is bound by the law as it currently exists not as it may change in the future."
The 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 prison camps 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 Guantánamo."
White House Press Secretary Robert Gibbs told the Associated Press that the administration was consulting with the Departments of Defense and Justice ``to explore our options in the case."
In other cases, the prosecutor has withdrawn the charges, without prejudice, meaning a new case could be brought at a later date.
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, specified in his Guantánamo Executive Order.
"The only way they can give effect to the president's order is by dismissing the charges," Reyes said.
The war court prosecutor first filed charges against Nashiri in June, seeking the death penalty in the case. The war court's legal advisor at the time, Brig. Gen. Thomas Hartmann, announced the charges at the Pentagon podium that day, saying the Military Commissions Act would ensure that Nashiri ``receives a fair trial consistent with American standards of justice."
Because the Pentagon sought military execution for Nashiri, the American Civil Liberties Union had hired death penalty specialists to assist in his defense.
Thursday, ACLU executive director Anthony Romero called the judge's order the work of Bush administration "hangers on" at the Defense Department who he accused of seeking to ``undercut President Obama's unequivocal statement to shut Guantánamo and halt the military commissions."
Pohl's order, he said, '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."
Retired U.S. Navy Cmdr. Kurt Lippold, who was commander of the Cole at the time of the attack, countered that the judge's ruling was ``a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago."
He criticized President 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."
Lippold also rejected the new administration's idea of seeking to prosecute accused al Qaeda criminals in federal courts, rather than by military commission.
"We shouldn't make policy decisions based on human rights and legal advocacy groups," he said in a telephone interview. ``We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror, or even more adversely impact the families who have already suffered loses as a result of the war. "
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.