The former commander of the USS Cole, the American war ship that was struck by a suicide boat in Yemeni waters more than eight years ago, on Thursday slammed President Barack Obama's orders to close the Guantanamo detention center and reassess the prisoners being held there.
''We shouldn't make policy decisions based on human rights and legal advocacy groups,'' retired U.S. Navy Cmdr. Kurt Lippold said in a telephone interview. "We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror — or even more adversely impact the families who have already suffered loses as a result of the war."
Lippold was responding to the decision by a U.S. military judge in Guantanamo to reject a request by Pentagon lawyers to delay next week's scheduled arraignment of Abd el Rahim al Nashiri, a Saudi Arabian who's charged with helping orchestrate the October 2000 suicide bombing of the Cole. The bombing killed 17 U.S. sailors.
In his ruling, the judge, Army Col. James Pohl, said a delay in Nashiri's arraignment would deny the public's interest in a speedy trial. He also said nothing that took place at the arraignment would prevent the Obama administration from deciding to deal with Nashiri in a forum other than the military commission now set to hear his case.
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Shortly after becoming president, Obama ordered the Pentagon to request delays in all trials pending at Guantanamo for 120 days so that his administration could study the cases against each of the 250 or so men held there as suspected terrorists and decide how to proceed in each case. Obama and his appointee to be the Pentagon's top legal officer have said they favor trials in civilian courts for terrorism suspects, if possible.
Other military judges granted the delay, including in the case of five men charged with plotting the Sept. 11, 2001, terror attacks that killed nearly 3,000 people. Family members of the 9/11 victims who were in Guantanamo to witness proceedings in that case expressed outrage at the decision.
On Thursday, Lippold called Pohl's decision "a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.''
The decision, however, stunned officials at the Department of Defense and White House, which had just begun to grapple with Obama's order to freeze the war court and empty the detention center within a year.
''The Department of Defense is currently reviewing Judge Pohl's ruling,'' said Navy Cmdr. Jeffrey Gordon. "We will be in compliance with the president's orders regarding Guantanamo.''
Nashiri's Pentagon-appointed defense lawyer, Navy Lt. Cmdr. Stephen Reyes, said the prosecutor could still dismiss the charges against his client to comply with the president's request for a freeze. The charges could later be reinstated.
''The only way they can give effect to the president's order is by dismissing the charges,'' Reyes said.
But Lippold also denounced suggestions that the Pentagon official who oversees the Guantanamo legal cases, Susan J. Crawford, could withdraw the charges, without prejudice, which would allow them to be reinstituted later, should the administration want.
That move, Lippold said, would be "a tragic, politically based mistake. We are now politicizing the war on terrorism . . . an order of magnitude worse than anything we've done."
"If she decides to drop all charges against detainees simply so that the president's executive order could be followed that smacks of undue command influence and politics," Lippold said.
Lippold said five survivors of the Cole attack or family members of those killed had been selected by the Pentagon to attend the Feb. 9 arraignment at Guantanamo, but that he did not know if the Pentagon still had plans to transport them to Guantanamo.
Lippold said that in any case the president's directive to close the island prison is misguided.
"I don't think we should close Guantanamo Bay until we have some process in place, until we understand the impact of closing it, until there is a much more robust review by the international community on how to deal with these detainees," he said. "To bring them to the U.S. and give them the same constitutional rights that we as American citizens have earned is an affront to the decency of these families and should absolutely not be allowed."
Nashiri's case could prove a particularly difficult one for the Obama administration. First turned over to the CIA in 2002, he was held until late 2006 in secret detention by the CIA, which has acknowledged that it subjected him to waterboarding during that time. Obama's attorney general-designate, Eric Holder, told Congress during his confirmation hearings that he considers waterboarding torture, which is illegal under U.S. and international law.
Nashiri told a military board reviewing his status as an enemy combatant in 2007 that he had confessed to involvement in the Cole attack only because he'd been tortured.
Under the current military commission structure, such a confession might be admissible, but it would certainly not be in a civilian or regular military court martial.
Lippold's own pronouncements in the case are ironic. A Navy inquiry questioned whether Lippold had taken appropriate measures to prevent an attack on the vessel. No one was in the ship's command center when the suicide boat rammed into the Cole's side, there were no lookouts on deck, and no planning had been undertaken for such an eventuality. Lippold, however, was not disciplined and was allowed to keep his command.
Pohl's decision to go forward with the Nashiri case was denounced by the head of the American Civil Liberties Union, which said the ruling smacked of Bush administration holdovers at the Pentagon trying to prevent President Barack Obama from fulfilling his promise to close Guantanamo.
The order, said ACLU executive director Anthony Romero, "raises serious questions about whether Secretary of Defense (Robert) Gates is the 'New Gates' or is the same old Gates under a new president. Gates certainly has the power to put a halt to these proceedings, and his lack of action demonstrates that we may have more of the same — rather than the change we were promised.''
Because the Pentagon sought military execution for Nashiri, the American Civil Liberties Union hired death penalty specialists to assist in his defense.