Judge rejects Obama delay request

[subsuelo]

Source: BBC

A military judge at the Guanatanamo Bay detention facility has rejected a request by US President Barack Obama to suspend the trial of a detainee.

Correspondents say this could be a setback to Mr Obama's plans to close the facility.

Abd al-Rahim al-Nashiri, a Saudi citizen, is accused of planning the USS Cole attack of October 2000.

Judge James Pohl said the request to halt the trial to allow a review by the new administration was "unpersuasive".
Judge Pohl said that the trial of Mr Nashiri would go ahead.

Read more: http://news.bbc.co.uk/2/hi/americas/7859224.stm

[glowing]

1. We really have some entrenched judges ..

[MNDemNY]

2. ?? ever think that the defendant did not want the delay?

Does he not deserve a timely trial? Maybe he feels this will only delay his acquittal.

[Winterblues]

16. Timely Trial....I'll have some of what you are smoking

The Cole bombing was over twelve years ago...

[Sinistrous]

3. Isn't that insubordination?

He is in the military and President Obama is the Commander in Chief.

[Bacchus39]

4. I believe legal decisions still fall under the judicial branch n/t

s

[Statistical]

7. I guess after 8 years of Bush even progressives forgot about seperation of powers.

One President to rule them all and in the darkness bind them....

[Sinistrous]

12. See post #11.

[JDPriestly]

13. I'm not certain. I think these military tribunals may be set up

under some law other than Article III and that they may well have been set up to answer to the president. But I seriously doubt that Obama or any other president will interfere in the judge's decision. Can the tribunal's decision be appealed? Didn't the Bush administration order those tribunals to speed the trials up? If one president can order that the trials be expedited, couldn't another order that they be halted or slowed? It's abhorrent to the fundamentals of our system of justice that the president would have that kind of authority, but he just might have it.

Some information:

Military Tribunals Act of 2002 according to a speech by Representative Adam Schiff:

The Military Tribunals Act of 2002 establishes the jurisdiction of these new courts over noncitizens, non-U.S. residents, unlawful combatants, al-Qaeda members, and those working in concert with them to attack the United States. It preserves the right of habeus corpus, and appeal, and the basic rights of due process. It also protects the confidentiality of sources of information and classified information. And it also protects ordinary citizens from being exposed to the dangers of trying these suspects. Perhaps most important, in the context of a war without clear end, against an enemy without uniform or nation, the bill requires the President to report to Congress on who is detained for how long and on what basis.

Mr. Speaker, in sum, the Military Tribunal Act of 2002 gives the Commander in Chief the power to try unlawful combatants, provides the confidence these judgments will be upheld, establishes clear rules of due process, maintains our check and balances, and permits Congress to effectively oversee the war powers as the Constitution and the preservation of liberty requires.

more . . .
http://schiff.house.gov/HoR/CA29/Legislative+Issues/In+His+Own+Words+-+Text/2002/07-09-02+Introduction+of+Military+Tribunals+Act+of+2002.htm

In 2006, Congress passed the Military Commissions Act

Sec. 948b. Military commissions generally

(a) Purpose— This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

(b) Authority for Military Commissions Under This Chapter— The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

http://en.wikipedia.org/wiki/Military_Commissions_Act

Looks like the military tribunals are the president's babies. He may just have the authority to put them to bed when he wants to.

[Bacchus39]

25. the tribunals and their decisions are subject to SCOTUS review n/t

s

[JDPriestly]

41. True, but the institution of the courts is within the president's authority.

I assume therefore that the president can stop the functioning of those courts.

[Sinistrous]

11. I believe this is a military tribunal and not under the DOJ.

[Bacchus39]

26. correct and the tribunal is subject to the SCOTUS, the judicial branch not the DOJ

which is the executive.

[pasto76]

17. Im not sure about that

Military law excludes alot of constitutional rights. UCMJ is their playbook, not the constitution.

[No Elephants]

21. I don't think that is true of military judges.

[Bacchus39]

27. yes, even military judgements fall, ultimately, under the purview of SCOTUS

I think I've said that enough now.

[JDPriestly]

33. But will the SCOTUS review Congress' granting the president

the authority to establish the military tribunals at Guantanamo. After all, the SCOTUS ordered that the prisoners in Guantanamo have the right of habeas corpus, didn't it? Don't you think it is also very likely to support Obama's right to halt a trial in order to comply with that order re habeas corpus by transferring the prisoners into a system with our traditional judicial standards rather than these military tribunals.

[No Elephants]

35. All court decisions are subject to review by the SCOTUS. That is not the same as saying that

the judge of an Article I and Article II court is free to ignore the POTUS/CIC in a matter that touches upon both national security and foreign relations during war time. And, all Obama is requesting is a delay.

There is a difference between the SCOTUS being able to review a decision of a military tribunal to see if the Constitution has been violated and the SCOTUS being able to--or even wanting to--say that the POTUS cannot delay a trial in a mitlitary tribunal established by Congress and the POTUS, two of the three co-equal branches of government.

I don't believe there is a case on this issue, from the SCOTUS or anywhere else.

I don't know about you, but I am not taking a position one way or the other, unless and until I see a citation from a reliable source.

[Thothmes]

29. Does the President of the United States have the legal authority

to order a Federal Judge to suspend a trial in progress?

[JDPriestly]

34. He is not a regular Federal Judge.

Basically, Congress supposedly gave President Bush the authority to organize these special courts that are kind of out of our judicial system and that do not apply the normal Federal Rules of Procedures in many respects.

[Abq_Sarah]

39. From what I recall

The trial was mandated by the laws passed by Congress. That's why the Justice department asked them to consider a delay instead of flat out ordering one.

[pleah]

5. Good. How long ago was the Cole attack? I think it has

been long enough, give the guy his day in court.

[Barack_America]

6. Personally appointed to Gitmo by Bush.

In the waning days of his administration, no less.

No political motivation at all, I'm sure. :puke:

http://www.miamiherald.com/news/americas/guantanamo/story/814105.html

Seems that he's done some good stuff, and some bad, but that most of all, he wants to be "top dog".

[Still Sensible]

8. Since This is a "Military" Judge, I would presume

probably a colonel, I suggest the Pentagon find a new posting... Iraq or Afghanistan perhaps.

Whoever James Pohl is, he appears to me to be one of those 'activist' judges we keep hearing about. The delay request in no way effects the outcome of any future proceeding if the decision is made to go ahead with prosocuting this individual at a later date.

I suggest another approach would be to have the justice department or the military prosocuter assigned to the case, simply stand down.

[dixiegrrrrl]

9. There is this to be considered.........

"Some critics have pointed out that, under U.S. law, an attack against a military target does not meet the legal definition of terrorism."

Consequences and after-effects

President Bill Clinton declared, "If, as it now appears, this was an act of terrorism, it was a despicable and cowardly act. We will find out who was responsible and hold them accountable". Some critics have pointed out that, under U.S. law, an attack against a military target does not meet the legal definition of terrorism<19> (see: 22 USC § 2656f(d)(2)

http://en.wikipedia.org/wiki/USS_Cole_bombing

[jody]

10. Good decision incorporating timely trial as any professor of constitutional law would know. n/t

[JDPriestly]

14. Yes, except that Obama probably has the authority to decide

what goes on in these courts in terms of instituting them.

http://en.wikipedia.org/wiki/Military_Commissions_Act

[jody]

15. Please cite a UCMJ article giving Obama authority to overrule the military judge in this case.

UNIFORM CODE OF MILITARY JUSTICE

[Thothmes]

18. Of course after the conviction

Obama can issue a pardon.

[jody]

19. Agree but the OP was about a judge's ruling. n/t

[Fire_Medic_Dave]

22. Yeah that will happen, pardon a convicted terrorist, that ranks up there with a new AWB.

[JDPriestly]

40. The point is not to pardon this guy. The point is to get a verdict

in a trial that respects due process and that garners the respect of the world. The verdict can be guilty or not guilty, but that's something that has to be decided after the evidence has been fully presented and weighed. The trial has to conform with our principles of due process.

People misunderstand the Bill of Rights. The Bill of Rights does not just "grant" us rights. It also restricts the rights of our government.

The theory of our Founding Fathers was that under God's natural law, we are essentially free and enjoy certain rights pretty much without limitation from our birth. As free individuals, we agree to form governments.

Our government's powers are therefore carved out of the natural rights of the people. The government only has those powers that the people have handed over to it. Our Constitution delineates pretty much the scope of power and authority that we have handed to it.

We forget these fundamental principles because, inevitably, and, naturally (irony intended), like us, the government operates in a practical world in which everyone compromises the need for security and economic efficiency on the one hand and the need for freedom and asserting our individual rights on the other.

Here is how that tension plays out in the Constitution.

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

http://www.usconstitution.net/const.html#Amends

Note that the Fourth Amendment is an admonition to the government. It denies the government the authority to violate the natural privacy rights of the people and requires the government to obtain a warrant based on probable cause before searching and seizing our "persons, houses, papers, and effect." Unfortunately, successive Supreme Courts, appointed by presidents greedy for power, have interpreted this Amendment to allow the government to encroach on our right to privacy in many ways.

I am not a rebel against the government. I hope through education, starting with citizens reading the Constitution, people will become aware of the brilliance of the Founding Fathers and insist that our government limit itself to the authority granted under the Constitution.

The rights of the accused are set forth as follows:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that this Amendment refers to members of the naval forces and "the Militia" -- not just any insurgent, and refers strictly to "when in actual service in time of War or public danger." That authority does not give the government the right to try just anyone. The treatment of prisoners of war and foreign nationals are governed by our international agreements and treaties (which supersede laws passed by Congress) and by other laws of Congress. The Supreme Court has ruled against the Bush administration with regard to a number of the procedures of the military tribunals. Obama is correct to be careful about that.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

. . . . Amendment 7 rights in a civil trial

Amendment 8 - Cruel and Unusual Punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

and -- the Ninth Amendment which makes the fact that the government's rights are very limited clear:

Amendment 9 - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[No Elephants]

20. What? A military judge rejects the request of the CIC? Obama needs to do something to

show who is in charge. If this were an Article III court, it would be a co-equal branch, but it isn't an Article III court. The judge is insubordinate.

[Hugabear]

23. Who in the fuck does this judge think he is, telling his Commander-in-Chief no?

This military judge should not only be removed from this case, but he should be court-martialed for insubordination and refusal to follow a direct order.

Obama is the COMMANDER IN CHIEF. These military pukes need to start learning who's the boss now.

[Thothmes]

30. So thats the way we want to conduct judicial matters

dont like the judge, fire him, dont like the prosecuting attorney, fire him. What legal authority does the POTUS have to interfere with the conduct of a trial in progress. If Bush had ordered something like that?

[No Elephants]

37. Who is talking about firing judges or attorneys? This is about whether a

MILITARY tribunal, established by Congress and the CIC, is free to disobey the request of the CIC for a delay in the trial for very good reasons pertaining to a matter affecting troops in war time as well as foreign relations.

The Constitution entrusts both those areas to the POTUS. This is an Article I and Article II court, not an Article III court. Different rules and standard pertain than would apply in a civilian matter. This is a military judge disobeying the CIC. This has nothing to do with firing Department of Justice prosecutors who refuse to bring bad cases against Democrats.

As for George Bush, if he had asked to delay a trial as part of an overall plan for ending torture and closing down Guantanamo, I would have done the happy dance. The "minor" difference between Dummya and Obama? Dummya thought he could get away with torturing prisoners for as long as he wished. You cannot equate that with what Obama seeking a delay so that he can end torture of military prisoners and raise our standing in the world by closing Gitmo.

[NYC Liberal]

36. .

[Piewhacket]

24. Son of a B! I just found out more... this judge is WHACK!

according to this article
http://www.cnn.com/2009/CRIME/01/29/cole.charges/

the Judge is WHACK! and should be removed from the case
and retired.

ONE: This (death penalty) case isn't in the middle of trial!
The defendant hasn't even been arraigned! SOB! There is no
serious prejudice to the defendant, who hasn't even objected!

TWO: The pentagon spokeman (Morrell) has said the prosecution will
NOT be going forward and that: "The bottom line is, we all work for the
president of the United States in this chain of command," Morrell said.
"And he has signed an executive order that has made it abundantly clear
that until these reviews are done, all of this is on hiatus."

THREE:al-Nashiri has said he was tortured into confessing involvement
in the Cole bombing. The CIA has admitted "waterboarding" him
at a secret location in 2002, and tapes of the interrogation were
destroyed in 2005 .

The case should be stopped.


BTW: Lets not forget to add aiding and abetting (destruction of
evidence and obstruction) to the list of bush crimes. Just because
the list is long is no excuse to forget anything.

[santamargarita]

28. Does this judge who won the election?

Remove him!

[Dreamer Tatum]

38. Go borrow a civics text from an elementary school

And read up on Powers, Separation of.

[santamargarita]

42. Read this smart ass:

Military Commissions Must Obey President’s Directive, Official Says
By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, Jan. 29, 2009 – The military commissions system created in 2006 to try accused terrorists held at the U.S. detention center at Guantanamo Bay, Cuba, must comply with President Barack Obama’s directive to suspend all legal proceedings there, Pentagon Press Secretary Geoff Morrell said at a news conference today.

A reporter asked for Morrell’s reaction concerning news reports that say a military judge at Guantanamo today ordered that legal proceedings be continued against accused al-Qaida terrorist Abd al-Rahim al-Nashiri.

Nashiri is charged with planning the Oct. 12, 2000, bombing of the U.S. Navy destroyer USS Cole that was berthed in Aden, Yemen. Seventeen U.S. sailors died as a result of the attack.

All legal proceedings at Guantanamo are “on hold,” Morrell said. A series of assessments and reviews of detainee operations at Guantanamo are now being conducted as part of Obama’s Jan. 22 executive order to shut down the detention facility within the year.

Obama instructed Defense Secretary Robert M. Gates on Jan. 20 to cease referring any new cases through the military-commissions process at Guantanamo Bay and to request 120-day continuances on all ongoing active cases there. Two days later, the president issued three executive orders, one of which directs the closure of the U.S. detention center at Guantanamo Bay within the year.

Resolving the issue concerning Nashiri’s legal proceedings at Guantanamo, Morrell said, is a matter for the military commissions convening authority.

“But the bottom line is, we all work for the president of the United States in this chain of command, and he has signed an executive order which has made it abundantly clear that until these reviews are done all is on hiatus,” Morrell said.

Obama signed three executive orders Jan. 22, one of which directs the closure of the U.S. detention center at Guantanamo Bay within the year. Another order signed by the president directs the stand up of a special interagency task force that will study the future disposition of present Guantanamo detainees who cannot be transferred to other countries and who pose a serious danger to the United States.

The third executive order signed by the president that day directs the U.S. military and other U.S. agencies to follow the Army Field Manual, which bans torture when interrogating detainees “to promote the safe, lawful and humane treatment of individuals in United States custody.”

“This department will be in full compliance with the president’s executive order,” Morrell said at the news conference.

The Military Commissions Act of 2006 established procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses that can be tried by military commission, according to a military commissions fact sheet.

The detention center at Guantanamo Bay has housed nearly 800 suspected terrorists captured in Afghanistan, Iraq and other places since the start of the global war on terrorism that followed the Sept. 11, 2001, terrorist attacks on the United States.

About 250 people are being held at Guantanamo today, including Khalid Sheikh Mohammad, the alleged mastermind of the 9/11 attacks.

[Milspec]

43. OK , I read it

Whats you point?

[Doctor_J]

31. he needs to starting firing/impeaching most of the fascist judges appointed

over the last 8 years. every day that those hacks remain on the bench is another day we live under tyranny

[Charlie Brown]

32. if you're in the military, the Prez is your boss

This guy should be promptly dismissed, court-martialed and replaced with someone who knows the Constitution.