Obama moves on Guantanamo vow, seeks to delay trials

Miami HeraldJanuary 21, 2009 

GUANTANAMO BAY NAVY BASE, Cuba — Only hours after taking office, President Barack Obama late Tuesday ordered Pentagon prosecutors to seek a 120-day freeze in war crimes trials of prisoners held at Guantanamo Bay, Cuba — his first action toward fulfilling a campaign pledge to close the controversial prison camp.

The motion, filed here by Pentagon prosecutor Clayton Trivett at 8:51 p.m., said the delay was needed so that the new administration could study how best to deal with the legal proceedings pending against 21 of the approximately 245 prisoners being held at Guantanamo.

The two-page motion dealt with the case of five men charged with plotting the Sept. 11, 2001, attacks, but said the president had ordered that such delays be sought in "all pending cases" and said the prosecutor was seeking to delay the case till May 20 "in the interests of justice, and at the direction of the President of the United States and the Secretary of Defense.''

A footnote added the president's order had been delivered orally, but that the prosecutor expected to file a copy of a memorandum by White House Counsel Greg Craig "within the next two days.''

Military commissions spokesmen said Obama issued the order through Secretary of Defense Robert Gates, who in turn directed the chief prosecutor, Army Col. Lawrence Morris, to seek the delays.

There was no announcement in Washington of the move, though Obama had said repeatedly that closing Guantanamo would be an early goal of his administration. In testimony before Congress last week, Obama's candidate to be the Pentagon's top legal counsel had said he favored civilian trials for men held at Guantanamo and that he believed the president did too. Some of the men already have been indicted in civilian courts in the United States, but the Bush administration had never shown any interest in pursuing any of those cases.

On his first full day in office Wednesday, Obama was to attend a National Prayer Service, then meet at the White House with top military officials, including Gates; Joint Chiefs Chairman Adm. Michael Mullen; Army Gen. David Petraeus, the commander of the U.S. Central Command; and Army Gen. Ray Odierno, the commander of U.S. troops in Iraq.

Obama is expected to discuss the wars in Iraq and Afghanistan as well as the future of Guantanamo.

Obama officials have warned it could be months before the facility closes, however, as the administration determines where to put the remaining detainees. But the motion in Guantanamo was the first indication of how Obama intends to confront the issue.

Nine cases involving 21 detainees held here as ''enemy combatants'' are in some stage of prosecution for crimes ranging from the 9/11 attacks and the bombing of the USS Cole to the killing of an American in Afghanistan.

Pentagon prosecutors seek military execution in six of the cases, including that of the alleged 9/11 plotters, who include Khalid Sheikh Mohammed, the plot's alleged mastermind.

The Bush administration announced its plans to conduct military trials here in 2002, but the first legal system designed to do so was ruled unconstitutional by the U.S. Supreme Court. Congress established the current system in October 2006.

Critics have argued some commission rules are at odds with U.S. due process and that the commissions are tainted by mishandled evidence and coerced testimony. In an interview published last week, the Bush administration official overseeing the military commissions said she had refused to allow one of the alleged 9/11 plotters to be charged because she believed he had been tortured while in U.S. military custody.

Obama's ordder to delay the legal proceedings here came on the eve of resumption of a war court sanity hearing for alleged 9/11 co-conspirator Ramzi bin al Shibh, whose Navy defense lawyers have questioned whether he is competent to defend himself at trial.

Bin al Shibh allegedly helped organize the Hamburg, Germany, cell of the Sept. 11 hijackers. His lawyers have disclosed in court documents that prison camp doctors have him on psychotropic drugs for an undisclosed mental illness.

The 9/11 case judge, Army Col. Stephen Henley, had ordered a secret hearing at 9 a.m. Wednesday followed by an open session at 10:30 a.m. War court sources said Henley was likely to consider the presidential order first.

Altogether, 21 Guantanamo detainees have been charged with war crimes in nine separate cases. Some of the men also face charges in U.S. civilian courts, though the Bush administration showed no interst in pursuing those charges.

The Chief Defense Counsel, Air Force Col. Peter Masciola, said defense lawyers on each case would decide whether to join with the prosecution in the request.

Military defense lawyers, as well as critics of the process, had argued the prosecutor should dismiss all the charges, rather than seek a continuance.

Dismissal, they argued, would give the new government wider latitude to decide whether and how to proceed with each prosecutions, and in what jurisdiction.

Still, Masciola predicted that the war court judges were unlikely to buck an order from their new commander in chief. ''Regardless of what we do, the judges are likely to follow the request of the president,'' he said.

All the judges are drawn from the services and include Navy captains as well as Army and Air Force colonels and lieutenants colonel drawn from traditional military courts.

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