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the Washington Post

Military Judge's Release of Pleading by 9/11 Defendants Draws Criticism

Peter Finn

The decision by a military judge at Guantanamo Bay, Cuba, to order the release yesterday of a pleading by defendants accused of planning the Sept. 11, 2001, attacks was criticized by defense counsel and civil liberties groups, who said the judge was defying President Obama's executive order to halt all military commissions.

Defense Department officials defended the judge's order to release the six-page filing from Khalid Sheik Mohammed and four co-defendants, saying that it was in compliance with Obama's order.

Shortly after taking office, Obama wrote that "all proceedings of military commissions to which charges have been referred but in which no judgment has been rendered . . . are halted" pending a government review of the cases of all detainees.

Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said: "The military judge's order authorizing release of the 9/11 co-conspirator filing does not constitute a 'proceeding.' No new charges have been filed, nor have court sessions been held. The defendants may communicate with the military judge while the case remains in a pending status, and the judge is authorized to release any filings which they may make."

But Michael Berrigan, deputy chief defense counsel in the Office of Military Commissions, said the Pentagon's understanding of "proceeding" is flawed.

"Look up the definition of 'proceeding' in Black's Law," he said, referring to the standard legal dictionary. "Hopefully, Obama's people will see what's going on."

"A judge is still issuing orders in military commissions that the president insisted to be halted. It's astonishing. What part of 'halt' does the judge not understand?" said Anthony D. Romero, executive director of the American Civil Liberties Union. "This is a public relations stunt and a stick in the eye of the Obama administration from its own Defense Department."

The White House declined to comment.

In the filing, Mohammed and his co-defendants called the charges against them "badges of honor, which we carry with pride." The statement, sprinkled liberally with quotations from the Koran, echoes previous pronouncements in court by the defendants, particularly Mohammed, the self-proclaimed mastermind of the attacks and the clear leader of the group, which is allowed to meet to plot legal strategy.

"Your intelligence apparatus, with all its abilities, human and logistical, had failed to discover our military attack plans before the blessed 11 September operation," the five wrote, adding, "We are terrorists to the bone."

Defense attorneys and civil liberties groups said that the speed with which Judge Stephen R. Henley, an Army colonel, released the statement after reviewing it March 5 was troubling. They pointed to an e-mail from the clerk of court for the military commissions to counsel on the issue, which said, "I have been asked by our . . . folks to release the documents ASAP."

Defense attorneys said they are still trying to secure the release of pleadings they filed eight months ago.

In another Guantanamo case, a federal judge in Washington yesterday dismissed a lawsuit brought by a 34-year-old Saudi challenging his confinement.

U.S. District Judge Emmet G. Sullivan wrote in his ruling that it was clear the detainee, Ghassan Abdullah al-Sharbi, did not want to proceed with his case because he had "a lack of confidence" in the U.S. judicial system and that he understood the consequences of dropping it. Under Sullivan's ruling, Sharbi can bring the lawsuit again.

The suit was brought by a lawyer hired by the detainee's father, in a letter sent to the judge in August.

Staff writer Del Quentin Wilber contributed to this report.

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