Thursday, January 29, 2009

A tale of a shirt-tail, Two

Barack Obama's presidency was still being measured in hours when he
directed an immediate halt to the Bush administration’s military commissions system for prosecuting detainees at the detention center at Guantánamo Bay, Cuba. ...

The decision, which had been expected as part of Mr. Obama’s pledge to close the detention camp, was described as a pause in all war-crimes proceedings there so that the new administration can evaluate how to proceed with prosecutions.
This was to the good, even though it clearly left something to be desired: It was merely a delay, not an actual halt, to those proceedings and indeed, the order to close the camp within a year left open the possibility that some sort of special trial system, doubtless with fewer human rights protections than the regular criminal courts, might be established for some current detainees who would be tried "under terms to be determined."

Even so, it was, again, an improvement. But it's hit a snag.
A military judge in the case of one of the best-known terrorism suspects declined an administration request to delay an arraignment scheduled for Feb. 9. ...

The decision came in the death penalty case of Abd al-Rahim al-Nashiri, a Saudi charged as the chief planner of the attack on the Navy destroyer Cole in 2000, which killed 17 American sailors.

In the ruling on Thursday, the judge in Mr. Nashiri’s case, Col. James L. Pohl of the Army, said “the request to delay the arraignment is not reasonable.” At times, Colonel Pohl, the chief judge in Guantánamo, took a contentious tone that seemed to challenge the Obama administration,
including in his ruling language about the independence of judges in the system and calling the prosecutors' arguments for a delay "unpersuasive."

His decision could be overturned by Susan Crawford, the Pentagon official in overall charge of the military commission system, who could dismiss the charges "without prejudice," which would end the case but still allow prosecutors to file new charges.

Still, there was the shirt-tail, the significant bit at almost the end of the article, in this case revealing that others had the same reaction to this ruling that I did.
[S]ome critics of the military commission system said the decision appeared to express the views of military officers who would like to complicate the Obama administration’s efforts to close Guantánamo and, possibly, abandon the military commission system.

Anthony D. Romero, the executive director of the American Civil Liberties Union, who has praised President Obama’s early actions on Guantánamo, said the ruling in the Nashiri case had raised questions about whether the Pentagon would resist the administration’s efforts.

“It is clear,” Mr. Romero said, “that there are conflicting currents in the Department of Defense under the Obama administration.”
That is a polite way of putting it. I think it reveals the fact that there are elements in the military who are going "This guy isn't one of us. He's not gonna tell us what to do." No, one ruling by one judge is not a trend. Still, for a judge to turn down a prosecutor's request for a delay is rare enough, but to do it under these conditions while labeling the move "on its face ... not reasonable" and declaring that the Military Commissions Act "remains in effect" and he is "bound by the law" - without, it should be noted, any explanation of how granting the postponement would violate that law - is not just a judicial ruling, it smells of open and deliberate defiance.

And he's not the only military voice chiming in. The ex-commander of the USS Cole, Navy Cmdr. Kirk Lippold, said he was "absolutely delighted" that things are "back on track to see an accounting for al-Nashiri's terrorist acts." That is, that the commission is proceding despite the order to halt. And Gen. John Craddock is predicting "problems" with moves to close Gitmo adding that
he's also concerned that some ex-detainees will mount new attacks on U.S. troops and their allies.
A little bit of fear-mongering can't hurt the cause, especially when it's backed up by the quite possibly fabricated Pentagon claim that 18 released detainees have "returned to the battlefield" and another 43 are "suspected" to have done so, which was issued just a week before the inauguration.

So, no, one example does not make a trend. But four? Frankly, I think there are some real rumblings, some real undercurrents, within the military that see Obama as an outsider and are prepared to resist and even undercut (if not outright defy) his moves on Gitmo and the other secret prisons and maybe beyond. I wouldn't say I'm sure of that, but if I was CinC right now, I'd be concerned enough to take steps to make damn sure people know who is in charge.

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