U.S. NAVAL BASE, GUANTANAMO BAY, Cuba | The unfinished review of the cases against 229 suspected terrorists held at the detention center here has slowed the legal process to a crawl, leaving military prosecutors - and even judges - bewildered as to how to move forward.
At the end of a hearing Wednesday for Mohammed Kamin, an Afghan national accused of attending an al Qaeda training camp and aiding terrorists, the judge in the case, Air Force Col. W. Thomas Cumbie, laid out a convoluted path forward, ranging from a continuance to outright dismissal.
He then said with a wry smile: “Is that clear as mud?”
While military lawyers say they are prepared to go to trial with at least 66 suspected terrorists now held in extrajudicial detention, President Obama’s executive order two days after taking office has tied their hands, suspending all proceedings pending a review that nearly seven months later is about half complete.
“Under the executive order there’s a stay, so we cannot proceed to a plea, we cannot proceed to a trial,” said Capt. John F. Murphy, chief prosecutor of the Office of Military Commissions. “We’re ready to go to trial whenever we are told to do so, but we’re awaiting our direction from the administration.”
In another hearing Wednesday, Ibrahim Ahmed Mahmoud al Qosi, a top aide to Sept. 11 mastermind Osama bin Laden, spent 90 minutes in a high-security courtroom behind razor-wire fences as military prosecutors argued to delay the case until at least September - the deadline for the review.
U.S. Marine Corps Capt. Seamus Quinn, a military prosecutor, told the judge that proceeding with the case now “would be an injustice to all concerned.” He said the delay is needed to “address and eliminate all possible challenges” to the government’s case.
Defense attorneys also went on the attack, asking the military judges to either dismiss the charges or move forward. “You cannot sit somebody in indefinite detention. It violates every principle we have as Americans,” said Navy Lt. Cmdr. Travis Owens, a lawyer representing Al Qosi.
Al Qosi is one of several “high-value detainees” already charged under the existing commission system. Among about 20 other detainees who face tribunals at Guantanamo are Khalid Shaikh Mohammed and four other suspected conspirators in the Sept. 11 attacks. If convicted, the five men could be executed.
A government task force has reviewed half of cases against the 229 suspects to determine which ones should be transferred, tried or held indefinitely, said a military official, who spoke on the condition of anonymity. The White House did not respond to questions about the status of the review and the delays in proceedings.
Closing the military prison - as Mr. Obama has vowed to do by January - has proved far more difficult than originally thought.
The president has delivered mixed signals on the military commission now under way in Gitmo. On Jan. 22, he issued a presidential decree ordering that “all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.”
In May, though, Mr. Obama announced that he would revive the Guantanamo military tribunal system established in 2006 by President Bush, saying new legal safeguards, such as banning evidence obtained through inhumane interrogation methods, would be established.
Two days later, on May 21, Mr. Obama said in a speech at the National Archives in Washington that the tribunals are “an appropriate venue for trying detainees for violations of the laws of war.” But at the same time, he lashed out at the Bush administration for what he called undue delays.
“For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of military commissions that were in place at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that - three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setback after setback, cases lingered on,” he said.
Yet his own review process has left the proceedings in a new legal limbo, with prosecutors unsure how to proceed and fearful that any further rulings in the early stages of their cases will be voided by whatever new law Congress enacts to govern the military tribunals.
Still, Mr. Obama has high-level support on Capitol Hill for reviving the tribunals. Sen. John McCain, the Arizona Republican who lost to Mr. Obama in the November presidential election, also is pushing for their return.
“Sen. McCain believes that military commissions are the correct venue for trying Guantanamo detainees for war crimes,” said his spokeswoman, Brooke Buchanan. “He has worked with [Michigan Democrat Sen.] Carl Levin and [South Carolina Republican Sen.] Lindsey Graham to modify some provisions in the Military Commissions Act in an effort to get the commissions back up and running as soon as possible.”
But nearly all proceedings are delayed, and prosecutors Wednesday asked that their cases be put off for 120 days until Sept. 17.
Congress and the administration are wrangling over legislation to overhaul the military commissions and few countries are offering to take in Guantanamo prisoners. Fewer than a dozen inmates have been moved in the past six months, although the Obama administration has concluded that at least 60 of the remaining prisoners at the detention center are eligible to be transferred to their home countries or to other countries.
But none will be sent to the United States. Congress has approved legislation that prevents the detainees from being released in the U.S. through Sept. 30, the end of the fiscal year.
The Obama administration is considering an executive order that would revive the president’s authority to hold terrorism suspects indefinitely without charge or trial, which could apply to as many as 90 Guantanamo Bay detainees.
“How we deal with those situations is going to be one of the biggest challenges of my administration,” Mr. Obama said earlier this month.
Senate Minority Leader Mitch McConnell, the Kentucky Republican who has led the growing congressional opposition to closing Guantanamo unless Mr. Obama has in place a plan on where all the detainees would go, said the prison should remain open for now.
“On the question of Guantanamo, it became increasingly clear over time that the administration announced its plan to close the facility before it actually had a plan,” the senator said this month.
Still, the process in Gitmo is moving forward. Capt. Murphy, who oversees a team of more than 100 staffers and agents, is forging ahead with investigations and trial preparation, but he said little can take place until Mr. Obama allows the resumption of the military commissions.
“We take our guidance from the president and we follow his executive order,” Capt. Murphy said. “We can only move forward to either a plea or a trial once we’re directed to do so. And we cannot do that now while the executive order remains in place.”
But, he added firmly: “If we are directed by the administration to move forward, then we are ready to do so. We’re ready to do it immediately.”