Back when Attorney General Eric Holder first announced the plans to try Khalid Sheik Mohammed and the other alleged 9/11 conspirators in civilian court, Holder also announced plans to try Abd al-Rahim al-Nashiri, allegedly the architect of the U.S.S. Cole bombing, by military commission. At the time, Holder used the cases to offer a distinction between the military commissions and federal courts by arguing that al-Nashiri had attacked a military target while Mohammed and his cohorts had attacked a civilian target. The Washington Post reports this morning that al-Nashiri's military commission is on hold:
"It's politics at this point," said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.
A White House official disputed that.
"We are confident that the reformed military commissions are a lawful, fair and effective prosecutorial forum and that the Department of Defense will handle the referrals in an appropriate manner consistent with the interests of justice," said the official, who also spoke on the condition of anonymity.
The Defense Department issued a statement Thursday saying the case is not stalled. "Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him," the statement said.
The actual reason for trying al-Nashiri in the military-commissions system appears to be the quality of the evidence against him -- al-Nashiri maintains his innocence but was waterboarded while in American custody. CIA interrogators threatened him with a gun and a power drill and suggested that his female family members would be raped in front of him. In case you're wondering, all those "enhanced interrogation techniques" got was bupkis. Al-Nashiri's is also not the only case in which the use of torture is hurting the government's efforts -- judges have sided with prisoners in eight of the 15 habeas cases involving so-called enhanced interrogation techniques.
Marcy Wheeler suspects that the delay may be in lieu of an announcement that KSM and his cohorts will ultimately be tried in civilian court, but we'll see. In the meantime this is another reminder that the military commissions are more trouble than they're worth. You also have to wonder if the administration is concerned about trying one of its most high-profile detainees with the possibility that legal challenges to the system might ultimately delay the process indefinitely.
