An Army judge who is defying a White House request to freeze the Pentagon's war court ruled Thursday that he has the authority to decide whether the military's security measures at Guantanamo impair a captive's ability to defend himself.
Army Col. James Pohl said he would rule Monday on a defense motion asking that accused al Qaeda plotter Abd el Rahim Nashiri not have his eyes and ears covered when he's brought to court. Nashiri is scheduled to be arraigned for Monday on charges that he conspired in the October 2000 suicide bombing of the USS Cole that killed 17 American sailors.
The prospect of the hearing is setting up a tug-of-war over whether the Pentagon will honor President Barack Obama's Jan. 22 Executive Order instructing Gates to stop the military commissions for 120 days. Pohl last week refused a prosecution motion for the delay, saying "the public interest in a speedy trial will be harmed by the delay.''
Since the ruling, Pentagon prosecutors have invited the families of some of the dead sailors to witness Monday's proceedings, which could still be derailed if Defense Secretary Robert Gates or another Pentagon official withdraws the charges. Reporters were told Thursday to be ready to travel to the base Saturday from Washington, D.C.
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Meanwhile, defense attorneys had asked Pohl to intervene in the circumstances by which Nashiri would be taken from his Guantanamo prison camp to the war court. The two are several miles apart at the U.S. Navy base.
The CIA has confirmed that it waterboarded Nashiri, a Saudi Arabian, to extract information during several years of secret custody before his transfer to Guantanamo in September 2006. Attorney General Eric Holder has said he considers waterboarding to be torture.
So Nashiri's defense attorneys asked the judge for a cease-and-desist order in "the practice of covering the eyes and ears of the accused whenever [he] is transported from his cell.''
Defense lawyers argued in a motion filed Jan. 9 that the treatment causes psychological harm as "a re-infliction of . . . tortuous treatment.''
Prosecutors countered that the judge had no authority to interfere in the prison camps' treatment of the accused.
Pohl said in his two-page ruling dated Thursday that the judge "does have the authority to address detainee security issues if they impact on the accused's ability to prepare his defense.''
The judge added that, once Nashiri was brought to the war court Monday, for his first-ever hearing, Pohl would consider delaying it if the defense "believes the transportation of the accused has impaired his ability to participate in the proceedings.''
In parallel, Obama has invited the families of Sept. 11 dead to the White House on Friday to discuss his decision to freeze the war court and give Holder 120 days to decide the best way to prosecute accused terrorists.