A military commissions judge has refused the Obama administration's request for a 120-day continuance in the case of Abd al Rahim al-Nashiri, saying that the government's argument was "unpersuasive."
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."
Well, the law as it currently exists holds that the Secretary of Defense, "or by any officer or official of the
United States designated by the Secretary for that purpose," is the convening authority for the commissions. So it's not clear that the judge has the authority to refuse Section 7 of Obama's executive order, which states that:
The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.
So the judge can refuse the request, but the law appears to state that if the SecDef says the process is halted, it's halted. “It’s not like a regular Article III court, it’s in the executive branch, it’s controlled by the president,” according to the Center for American Progress' Ken Gude. “The judges aren’t independent.” Which is why so many people objected to this process in the first place.
Still, the Brennan Center's Emily Berman isn't so sure that Judge Pohl doesn't have the authority to do what he's doing. She says it's strange that the Obama administration would direct prosecutors to "file the request with the judge if it wasn’t up to him to decide." But she adds that "even if he has discretion on whether or not to suspend the proceedings, the [administration] has other ways of stopping them," namely by temporarily dropping the charges. But doing so doesn't mean Nashiri will be released, since he's still defined as an enemy combatant pending the administration's review of the Gitmo cases and the institution of a new approach to trying detainees, which means he can be held as long as the AUMF is in effect.
-- A. Serwer