Judge freezes 9/11 trial as Obama takes steps on Guantanamo pledge

Miami HeraldJanuary 21, 2009 

GUANTANAMO BAY NAVY BASE, Cuba — A military judge on Wednesday ordered a 120-day freeze in the military trial of five men accused of plotting the Sept. 11 terrorist attacks after President Barack Obama told Pentagon prosecutors to seek a delay so his new administration could study what to do about terrorist suspects held at the U.S. detention center here.

Army Col. Stephen Henley halted the 9/11 military commission proceedings at midday, after a Pentagon prosecutor argued at the war court created by President George W. Bush that the trials themselves are the prerogative of new commander in chief.

In Washington, news reports said that the Obama administration was circulating a draft executive order in which the president would order that the prison camps be emptied of prisoners within the year. Advisers have said Obama is likely to sign such an order this week.

Only hours after he was sworn in Tuesday, Obama told Defense Secretary Robert Gates to instruct the Pentagon prosecutor to seek delays in each of the cases of 21 people currently charged with war crimes before military commissions. Obama has said he plans to empty the prison camps at Guantanamo, which currently holds 245 detainees, but he has yet to say what would become of the captives there.

The 9/11 case prosecutor's motion, filed late Tuesday, sought the delay ''in the interest of justice'' and said it was by order of Obama and Gates.

Four of the 9/11 plotters, who've also said they want to be executed, objected to the delay. The five 9/11 accused allegedly trained, advised and financed the 19 hijackers who commandeered American airlines on Sept. 11, 2001, and then crashed them into the World Trade Center, Pentagon and a Pennsylvania field, killing 2,973 people.

Speaking for the group, alleged al Qaeda kingpin Khalid Sheik Mohammed said he opposed any delay and offered again to enter a guilty plea in the complex conspiracy case.

''In the name of God I would like to continue with the motion that . . . five of us confess,'' Mohammed said during a brief court appearance that echoed earlier efforts to enter a guilty plea.

The Pentagon prosecutor seeks military execution in the case and Mohammed has said more than once that he welcomed martyrdom.

Henley, the trial judge, had rejected their guilty pleas in December because defense lawyers said one of the accused is not mentally competent to stand trial.

Moreover, Henley said the new commissions' rules don't make clear that an accused can plead guilty in a death penalty case, especially before a jury of senior U.S. military officers sitting to hear a case at Guantanamo.

On Wednesday, Henley granted the Pentagon's request for a delay, agreeing with Clay Trivett, a former Navy lawyer and one of the case prosecutors, that military commissions are the ''prerogative'' of the commander in chief.

With the Department of Defense and U.S. military under Obama's command for less than a day, Trivett asked Henley to "allow the new commander in chief to determine whether the new process is sufficient and it should continue.''

The five were brought to the maximum-security war court Wednesday morning, while military commissions staff translated the government motion on the president's order into Arabic.

Defense lawyers said court staff furnished the accused with handwritten translations because of a glitch in the Arabic language computer programs at the expeditionary legal compound, called Camp Justice.

Military lawyers for two of the accused, Mustafa Hawsawi of Saudi Arabia and Yemeni Ramzi bin al Shibh, did not oppose the prosecution request. But Hawsawi, who allegedly helped financed the hijackers, said he personally opposed delay.

So did Walid bin Attash, defending himself at trial and accused of running an al Qaeda camp in Afghanistan where some of the so-called ''muscle hijackers'' trained. Ammar al Baluchi, Mohammed's nephew, who is likewise defending himself, also said he opposed delay.

Defense lawyers for Omar Khadr, 21, facing a murder war crimes trial, did not oppose the president's request in a written filing Wednesday morning.

Khadr's judge, Col. Patrick Parrish, froze the case to around May 20, said war court spokesman Joseph Dellavedova.

At issue for the Obama legal team in all 21 war court prosecutions is whether to keep the special post 9/11 war court established by the Bush administration and approved by Congress in October 2006.

Critics have argued the commission process is essentially political. They say the 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.

Pentagon advocates argue that the special trials are a national security necessity that balance the pursuit of justice with the need to protect government secrets during a time of war.

Obama has said he prefers traditional criminal trials and military courts martial in place of trials here before special panels of U.S. military officers.

Obama's action Tuesday was not announced. The first word of it came when Trivett requested the delay in the 9/11 case in a motion filed at 8:51 p.m.

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.''

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.

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