The James Logan Courier

By Carol Rosenberg
McClatchy Newspapers (MCT)

GUANTANAMO BAY NAVY BASE, Cuba — Just hours in office, President Barack Obama late Tuesday sought a 120-day freeze in the war crimes trial of alleged Sept. 11 mastermind Khalid Sheik Mohammed to give the new administration time to study ongoing war-on-terror prosecutions.

Pentagon prosecutor Clayton Trivett filed the motion seeking a 120-day continuance in the Sept. 11 death penalty case of five alleged al-Qaida co-conspirators at 8:51 p.m.

The two-page motion said the Pentagon was seeking the freeze until 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 verbally, but that the prosecutor expected to file a copy of a memorandum by White House Counsel Greg Craig "within the next two days."

Military commissions spokesmen said Obama issued the order through Secretary of Defense Robert Gates, who in turn directed the chief prosecutor, Army Col. Lawrence Morris, to seek the delays "in all pending cases."

In all, 21 of the 245 or so foreign men held as "enemy combatants" here are in some stage of prosecutions sworn out by Morris' team.

Pentagon prosecutors seek military execution in six of the cases.

At issue is a looming decision by the new administration, which has already vowed to empty the prison camps of the foreign captives, on whether to keep the special post Sept. 11 war court established by the Bush administration and approved by Congress in October 2006.

Critics have argued some commission rules are at odds with U.S. due process.

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

The order came on the eve of resumption of a war court sanity hearing for alleged Sept. 11 co-conspirator Ramzi bin al-Shibh, whose Navy defense lawyers have questioned whether he is competent to defend himself at trial.

Bin al-Shibh allegedly helped organize the Hamburg, Germany, cell of the Sept. 11 hijackers. His lawyers have disclosed in court documents that prison camp doctors have him on psychotropic drugs for an undisclosed mental illness.

The Sept. 11 case judge, Army Col. Stephen Henley, had ordered a secret hearing at 9 a.m. Wednesday followed by an open session at 10:30 a.m. War court sources said Henley was likely to consider the presidential order first.

The Chief Defense Counsel, Air Force Col. Peter Masciola, said defense lawyers on each case would decide whether to join with the prosecution in the request.

Military defense lawyers, as well as critics of the process, had argued the prosecutor should dismiss all the charges, rather than seek a continuance.

Dismissal, they argued, would give the new government wider latitude to decide whether and how to proceed with each prosecutions, and in what jurisdiction.

Still, Masciola predicted that the war court judges were unlikely to buck an order from their new commander in chief. "Regardless of what we do, the judges are likely to follow the request of the president," he said.

All the judges are drawn from the services and include Navy captains as well as Army and Air Force colonels and lieutenant colonels drawn from traditional military courts.

(c) 2009, The Miami Herald.
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