Thursday, January 29, 2009

Military Judge shrugs off the Obama Executive Order

In a truly amazing development the administration of President Obama has suffered another setback. The Change we hoped for may be derailing already. 

President Obama signed an Executive Order in which he suspended all of the Military Tribuneral Trials currently proceeding at Club Gitmo. Yet, a Judge there denied the request by the Prosecutor for a 120 day delay in the case. The Judge told the One no. Imagine that, I'm having trouble with it myself.

A military judge in Guantanamo Bay today denied the Obama administration's request to delay proceedings for 120 days in the case of a detainee accused of planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others.

The decision throws into some disarray the administration's efforts to buy time to review individual detainee cases as part of its plan to close the U.S. military prison at the Guantanamo naval base in Cuba. The Pentagon may now be forced to temporarily withdraw the charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent.

Nashiri is facing arraignment on capital charges on Feb. 9, and Judge James Pohl, an Army colonel, said the case would go ahead.


But Pohl said he found the government's reasoning "unpersuasive" and he clearly felt he was not bound to bow to the administration's wishes.

The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, which was obtained by The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

The judge wrote that "the public interest in a speedy trial will be harmed by the delay in the arraignment."

Oh my goodness. Someone better tell this Judge that the merest whim of President Obama is supposed to be our literal command. Telling President Obama that his Executive Order isn't supported by law is probably not going to be received well. 

"We just learned of the ruling here . . . and we are consulting with the Pentagon and the Department of Justice to explore our options in that case," White House spokesman Robert Gibbs said. Asked at a news briefing whether the decision would hamper the administration's ability to evaluate the cases of Guantanamo detainees, Gibbs replied: "No. Not at all."
I imagine that we can all guess how that consultation went. "Just do it and make it happen right now." I can't swear that phrase was uttered, but I'm willing to guess that it did. I wonder if the new transparency in Government that we were promised is going to shed some light on those consultations? 


Blogger Ted said...


8:35 PM  
Blogger Max Conservative said...

I allowed the above comment to be posted. However, I believe that the questions about President Obama's Birth Certificate have all be answered to my satisfaction. My opposition to President Obama is not based upon some belief in a radical conspiracy theory. Instead, my contentions are based upon principal and policy.

The user "Ted" can believe what he wishes, and frankly, I think it a waste of time, and energy.

Even if Ted is right, and President Obama was born overseas. It is not a contention that his Mother was not an American Citizen. In my humble opinion, there are three ways to be an American.

1) Born in the nation, even if your parents are not born here.

2) Born to an American, anywhere.

3) Naturalized citizenship, through the normal process.

Obviously, President Obama qualifies on either category one, or two.

I refuse to join the Right wing version of the Bush National Guard Memo drones regarding this question.

The Joint Chiefs of Staff do have a duty. To support and defend the Constitution. To obey all LEGAL orders of the Commander in Chief, and to obey the laws passed by Congress. In this case, the laws passed by Congress, and signed by President Bush, say that the Military Commission is the way to go. The Judge is absolutely within his right to obey the law, and rule on a motion as he sees fit within his court, based upon the laws of this land.

The Joint Chiefs have no duty to demand to see President Obama's Birth Certificate. President Obama is the President of the United States. He is My President. The same as President Bush was my President. However, that does not mean I won't disagree with him if or when I believe he is taking the wrong path or wrong direction. I objected to President Bush on may issues and subjects. That doesn't demean the office, nor the nation.

Embracing insane conspiracy theories, as I have long chastised the Left for, does nothing for the debate concerning the future of this nation. Discussing the issues, and honestly considering the best course this nation should take does much for the future of this nation.

Ted. I respect your right to an opinion. I disagree wholeheartedly with your statement.

10:19 PM  
Blogger Ted said...

Max, you miss the point entirely.

No one is necessarily saying that BHO is NOT a "citizen of the US". he may or may not be that. What is at issue is whether he is a "natural born citizen" under Article 2 of the Constitution, which is separate and distinct from "citizen". It is a unique requirement under the Constitution only for President. In other words "citizen" as under the Constitution's 14th Amendment is NOT the same thing as "natural born citizen" under Article 2.

The Supreme Court is fully aware of this; however, as yet, no one has had standing -- albeit the Court has NEVER said and CAN NOT EVER SAY that the case has no merits.

When a Military General, for example, has doubts about the commander's authority, or even serious questions, he or she owes allegiance to the Constitution, to which they have taken a solemn pledge to uphold and defend.

The burden NOW is on BHO, simply produce the long form birth certificate or else under "res ipsa loquitur" his actions "speak for themselves".

11:56 PM  
Blogger Max Conservative said...

Ted, he's born to a US Citizen Mother. Even if he was born on Mars, he would still be legally a Natural Born US Citizen.

For example. John McCain was born overseas.

Yet he is a Natural Born Citizen, because he was born to two citizens of the United States, on a Military base. The law clearly states that if you are born to a US Citizen, no matter where, you are a Natural Born US Citizen, fully meeting all qualifications under the Constitution.

Fact not possibly up for debate. President Obama's Mother was a US Citizen, natural born herself. Unless you have some theory that she was not his real mother, and he was adopted and was really born to people who were not citizens, he is a Citizen fully consistent with law and tradition.

If Obama is not a Natural Born Citizen, under your theory that he was not born in Hawaii, then was John McCain a Natural Born Citizen? He has the same qualification according to the State Department Policy. The personage of his birth, if not the location.

1:54 AM  
Anonymous Anonymous said...

It is my understanding that as Commander in Chief, the President has issued a MILITARY order (by signing an executive order to the military to suspend all tribunals), and that as a serving officer in the MILITARY, the judge MUST comply with a lawfully issued order from his senior officer. The judge is obviously playing politics here as he seems to think he is working for CONGRESS, which he is not. He claims that he is operating under the mandate given to the tribunal by congress and that he is OUTSIDE of the normal military chain of command, but, his action is actually a refusal to follow a direct order through the (ONLY) chain of command he is obligated to follow.

To top it off, he is not only guilty now of refusing an order, but he is now also guilty of the General Article 134 - prejudice of good order.

He acted not only in defiance of a lawful order, but he has made public statements defining his own authority - an authority that seems to exist outside of his rank and position. This is in contravention of "good order and discipline."

Whatever you think of President Obama, it sets a very dangerous precedent to allow ANY officer in the military to disregard the legal orders of the Commander in Chief.

11:56 AM  
Blogger Max Conservative said...

Anon thinks that the Judge has failed to follow an order.

Anon obviously has never served in the Military. Failure to follow a legal order is grounds for a Courts Courts Martial, and a very serious crime. Failure to follow an illegal order is grounds for a commendation and possibly a promotion.

For example. Let's say that President Obama says that the Military is no longer to enforce the Don't Ask Don't tell policy. Here is the problem. The law states that this is exactly the policy that the Military must follow. The officers and troops must follow the Don't Ask Don't Tell policy, because failure to do so is a violation of their orders. No one person may change policy in such a way. Not policy that is legally established through the legislative process.

If President Obama gave an order to bomb an orphanage. No one would follow that order without some clear and convincing evidence that the target had real military value, for example, it was being used by Hamas to fire missiles at our side.

There are literally thousands of rules that you don't violate, no matter who gives the order, because it's illegal to follow that order. In fact, the defense of "I was just following orders" used by the Nazi's after World War II was unanimously rejected by every nation on earth.

The laws that are passed by Congress, and signed by the President, supersede the policies put forth in executive orders. That isn't my opinion, that is historical fact.

Anon, I understand why you didn't want to tell us your name, or handle, or user ID. I wouldn't want anyone to know I was so ill informed either.

The left wing right now wants to Prosecute President Bush for War Crimes. If he gave the order, wasn't it automatically legal? Isn't the Military required to follow the orders? No wait, they're only required to follow the orders of a Liberal President.

The claim that this Judge violated Article 134 is so asinine that I almost wonder you brought it up.

Anon. The Judge's job, his duty, and his position is a Judge. His job is to make decisions based upon the law. Failing to do that would be a violation of a regulation, but doing so, and properly writing up that decision, as every single Judge in the nation does, and we wish all the Judges in the world, is the whole point of the process.

The Officer is a Military Officer. He is also serving as a Judge. his authority is absolute in his courtroom. His decisions if not based upon good solid law are appealed, and overturned by the Court of Military Appeals. I'm betting that doesn't happen too often.

So why is it a bad thing that a Judge ruled that the law applied? That was as I recall, a truly Bi Partisan Law. Voted for by both Democrats, and Republicans. Signed by a President, and so far, upheld by the Supreme Court. What rules did the Officer violate in obeying the law that was written to cover his courtroom?

1:59 PM  

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