WASHINGTON — The chief of the military commissions at Guantanamo has spurned a defense request for delay and ordered a military commission to go forward on May 27 that will address the issue of torture.
The judge, Army Col. James Pohl ruled in a two-page order Thursday that defense lawyers had ample notice to prepare for the one-day hearing and told them to make plans to travel to the remote base in southeast Cuba. The hearing will be the first commission session since President Barack Obama took office and asked a 120-day freeze on war court proceedings.
At issue at the hearing for Saudi Arabian Ahmed Darbi, 34, is how much evidence might be presented at his military trial in a bid to show that he e man was tortured into confessing crimes he now denies.
The Defense Department says Darbi is the brother-in-law of one of the 9/11 hijackers aboard American Airlines Flight 77, which crashed into the Pentagon. Daarbi is not accused of involvement in 9/11, but military authorities have alleged he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He also allegedly met Osama bin Laden and trained in an Afghan al Qaeda camp.
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The timing of the hearing is particularly sensitive. Obama has ordered a review of the cases against all detainees. As a result, according to published reports, some administration officials have concluded that cases cannot be brought against at least some detainees in either civilian or regular military courts, requiring the Obama administration to consider retaining the military commissions, possibly with changes to provide greater legal protections to the accused.
Judge Pohl called the May 27 hearing a necessary prelude to a trial and said he was opposed to an additional delay. Earlier this year, Pohl initially rejected the Obama request for a delay so the administration could study the war court procedures and protections. That prompted the Pentagon to withdraw caapital charges against another Guantanamo detainee, Abd el Rahim al Niashiri for his alleged rolle in the October 2000 suicide bombing of the USS Cole, which killed 17 sailors. With the charges withdrawn, there was no reason fora hearing.
Neither Pentagon nor military commission spokesmen responded to repeated requests for comment. Also unanswered was whether the Obama administration would continue a Bush-era practice of airlifting reporters to the unadorned war court compound called Camp Justice, to permit news coverage of the hearing.
Darbi's lawyers are trying to prevent Pentagon prosecutors from using as trial evidence dozens of the Saudi's self-incriminating statements, which the lawyers claim were obtained through brutal treatment during interrogations at the Bagram Air Base in Afghanistan, before he was moved to Guantanamo.
As part of their case, Darbi's attorneys have requested that two documentary films be introduced as evidence. The films include guards describing a climate of abuse at the time of Darbi's interrogations.
War court advocates say it is up to the judge to decide whether a confession was obtained through coercion, and whether it should be admissible at trial.
At his last war court hearing, on Dec. 15, a soft-spoken Darbi suddenly held up a copy of Obama's campaign promise to close down the prison camps at Guantanamo and urged the president-elect to deliver on his pledge, which he said would restore U.S. credibility around the world.
Defense lawyer Ramzi Kassem said in a statement that the Pentagon should, like in the Nashiri case, withdraw the Darbi charges without prejudice to give the new leadership time to decide how to proceed.
"It would be tragic for Mr. Darbi's case to proceed based solely on evidence obtained through outrageous coercion and before the same military commission that President Obama pledged to shut down because it permitted such evidence," Kassem said.
Going forward on May 27, the lawyer said, "would effectively take out of President Obama's hands a major policy determination: whether to pursue proceedings in the military commissions created under President Bush.''