ABC News has learned that on Friday, President Obama will likely order the Department of Defense's Military Commission to withdraw charges against terrorist suspect Abd al-Rahim al-Nashiri. The charges may later be reinstated in a military commission or pursued in a civilian court. Al-Nashiri will remain in custody.
The announcement will not be made until after President Obama meets with the families of victims of terrorist attacks on 9/11 and on the U.S.S. Cole, where he will assure them that this step is not being done to be lenient towards al-Nashiri. The move is being done to stop the continued prosecution of al-Nashiri in a court system that his administration may ultimately find illegitimate, not for any other reason, sources told ABC News.
President Obama has expressed concern about whether the military commissions set up by the Bush administration are the proper way to go forward in pursuing charges against the U.S. detainees, and on January 22 he asked all the judges supervising the trials of detainees for a continuance of 120 days, so a team of administration officials could review the best way forward.
In almost the cases, that continuance request was granted. But last week the judge supervising the al-Nashiri trial -- Army Col. James L. Pohl, the chief judge at the Guantanamo Bay war crimes court -- said he would not heed President Obama's request for a 120-day continuance, or delay, in prosecutions of terrorism suspects. Pohl called the president's request "not reasonable" and not "in the interests of justice."
The arraignment of al-Nashiri is scheduled for Monday, February 9.
Al-Nashiri has been identified as the former Persian Gulf Operations Chief for al Qaeda and the mastermind of the attack on the U.S.S. Cole. In March 2007 he testified in military court that he only confessed to certain crimes because he has been tortured for the previous five years.
Asked for reaction to the news, Commander Kirk Lippold (Ret.), former Commander aboard the U.S.S. Cole when it was bombed on October 12, 2000, told ABC News that "I am concerned about the President considering dropping the charges because it may be indicative that the president does not intend to follow the military commissions process which has undergone extensive legal and legislative review."
"For some reason the administration says what's been expressed through the legislature is not sufficient," Lippold said of the military commissions. "They need to allow the process to go forward."
The 26-year Navy veteran said he found the decision to close the detention facility at Guantanamo Bay "disappointing," but he seemed willing to hear the president out.
"I'm interested in hearing what his long-term plan is on how he's going to deal with the detainees because he hasn't articulated that," he said. "He may have a clear-cut path that may massage some of the concerns that I know many of the families have right now."
In a way, the President tied his administration's own hands, requiring his Secretary of Defense to drop the charges. The executive order President Obama signed on closing the Guantanamo Detention Facilities states that "all proceedings" in the US Military Commissions must be "halted":
"The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and 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."
It is possible that the President will allow the arraignment to continue, but to do so would be an apparent violation of his own executive order. As of Thursday evening the final decision has not yet been made.
Lippold, a Senior Military Fellow with Military Families United, served on the Joint Chiefs of Staff and crafted detainee policy in the initial stages of what the Pentagon called the Global War on Terror. He was invited to meet with the President along with the other families tomorrow.
"I'm looking forward to hearing what the president has to say tomorrow when he meets with the families of the U.S.S. Cole," Lippold said.