The ACLU has its knickers in a twist over the release of the jihadist confession to 9/11 crimes:
Judge Henley apparently doesn’t know what the word "halt" means since he has blatantly defied President Obama’s executive order for an end to the military commissions. Why Judge Henley accepted pleadings and issued an order in halted proceedings is confounding. The judge’s actions extending the military commissions call into question the true intentions of the Pentagon leadership at a time when the Obama administration is searching for a solution to the disastrous detention policies of the Bush administration. If Defense Secretary Gates allowed the military commissions to proceed, that’s a serious problem; if he didn’t know about this, that’s equally troubling.
NRO Corner’s Andy McCarthy responds using those stubborn things called "facts":
The chutzpah here is stunning, even by ACLU standards. Since they were first announced in 2001, the military commissions have been condemned as illegitmate by the ACLU because the judges are not independent like civilian court judges — they are military officers, and thus they answer to the Defense Department’s convening authority, the Secretary of Defense and, ultimately, the President. Now, the ACLU is complaining that the military judge is defying the commander-in-chief, and wondering whether Secretary Gates is asleep at the switch in allowing such insubordination.
Romero’s complaint is absurd. First of all, President Obama did not, as he claims, "order" an end to the military commissions. To the contrary, the president directed the military prosecutors to request that the military judges grant a four-month adjournment while his administration studies the commissions. Most of them acceded to Obama’s request; when one didn’t, the convening authority dismissed the charges without prejudice to their later reinstatement (as I’ve previously recounted, here and here).
But there was no "order." The president, who evidently has more respect for the ACLU’s cant about judicial independence than the ACLU does, did not direct the judges to do anything. Nor has he issued an "executive order for an end to the military commissions," even though he has it within his power to do so. As Obama has said — echoed by his attorney general, his nominees for solicitor general, and his nominees for leadership of DOJ’s Office of Legal Counsel — the administration is studying what to do about the combatant detainees, and military commissions remain an option (albeit an unlikely one, in my view).
Secondly, the military judge, U.S. Army Col. Stephen Henley, has not resumed the "halt[ed]" commission. Nor has he done anything inappropriate. Again, the truth is the opposite.
As Col. Henley explains in a brief order filed on March 9, he received the jihadists’ "Islamic Response" on March 5 — unsolicited. There is no legal basis for the court to have — or be lulled into — an ex parte communication of this nature with the defendants. There is also no security reason that would justify keeping the communication under wraps. So, the judge logically directed that a copy of the document be provided to the prosecutors and the original be publicly filed, as is customary in court proceedings. In addition, because the commission is currently suspended and the "Islamic Response" does not, in any event, call for further action, the judge said no further response was required from either the prosecution or the defense.
