Some of those who have criticized the president's decision to turn sharply away from the Bush administration's detention policies called Colonel Pohl's decision encouraging. Kirk S. Lippold, the retired commander of the Cole, issued a statement saying that Mr. Obama's order to close Guantánamo within a year had not considered the impact on the victims of terrorism. "Today's decision," the statement continued, "is a victory for the 17 families of the sailors who lost their lives on the U.S.S. Cole over eight years ago."

Either way Pohl is acting above his station. Both scenarios suggest that Pohl is not acting alone and a Military coup is being discussed by some that believe the country is in danger with Obama at the helm.

In the case of Nashiri, the government (prosecutors as opposed to the government in the Presidential sense) requested a 120 day continuance (as they were directed to do) in order to give the new administration time to review their options.  Competing against this request is Nashiri's congressionally bestowed right to a speedy trial.  

According to the MCA, the government has 30 days to arraign an accused after charges have been referred (approved by Susan Crawford) by the convening authority.  The government then has 120 days to bring the accused to full trial.  This of course doesn't take into account any approved continuances.  There will likely be many given that the case was referred capital and would likely be a capital case no matter which forum Nashiri is eventually tried in.

The administration is by no means backed into a corner at this point.  The simple solution is to order Judge Crawford to withdraw the charges.  This would be a lawful order which Crawford must obey.  The government can NEVER give a military judge a lawful order to grant or deny a continuance.  Once a case is before a military judge be it court-martial or military commission the judge decides how a case will proceed.  If anyone such as a commanding officer (commander in chief in this case) tries to direct a military judge to do (or not do) something in a case then you have what is called unlawful (sometimes undue) command influence.

The remedy here is for Judge Crawford to withdraw the case.  This would ensure that the case is no longer before the judge thus giving the new administration as much time as it needs to decide what they want to do.

I mean, I'm sure their own superior officers could not order them to do something, they are the judge.

But I was an Army officer once upon a time, and I still remember how I took an oath to, among other things, obey the lawful orders of those placed in authority over me, and to protect and defend the Constitution of the United States against all enemies, foreign and domestic.

So, is President Obama's directive to delay the trials of these combatants a lawful order?  JohnInVA says President Obama's directive is not a lawful order, as the President, or any other person in the judges' chain-of-command cannot order a delay.  Other commenters assert that a power to abolish includes a power to delay.  Not so-- it is merely a power to abolish.  If there were a power to delay, don't you think that power would be explicitly granted in the law setting up these courts?

Which leads me to a gripe I have with some of the people here.  Some people think that everything the federal government orders is, by definition, lawful.  It ain't so, which is why the military swears an oath to the Constitution of the United States, not its government.

Some of the more gung-ho pro-Obama, pro-big-government commenters here really ought to stop and think about something:  at what point does the federal government become a domestic enemy of the Constitution?

I don't say we're at that point, or anywhere near it.  But any officer who takes his oath seriously has to ponder that question in his darker moments.

Before we rush to condemn the court-martial judges for insubordination, stop and think about where they have sworn to place their loyalties:  not to any one man, or to any office, or to that collection of offices and officials called "the Government of the United States".  They've sworn allegiance to the the supreme law of the United States-- the Constitution-- and all the laws consistent with it.

The court-martial judges are duty-bound to obey the law.  And if the law setting up these tribunals does not permit the President to order a delay, why castigate a judge for merely doing his duty and ignoring what is an unlawful order?  That the President has issued the unlawful order doesn't make it lawful.  (Unless one is a fan of Richard Nixon, I guess.)

Folks, be thankful that these "insubordinate" judges are such sticklers for following the rules, however silly they seem.  It is thanks to these men that we have the Rule of Law in this country, not the Rule of Men.

"We shouldn't make policy decisions based on human rights and legal advocacy groups,'' retired U.S. Navy Cmdr. Kurt Lippold said in a telephone interview. "We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror -- or even more adversely impact the families who have already suffered loses as a result of the war."

The issue is that Nashiri will walk, unless convicted in a kangaroo court, because he was tortured.

Nashiri told a military board reviewing his status as an enemy combatant in 2007 that he had confessed to involvement in the Cole attack only because he'd been tortured.

Under the current military commission structure, such a confession might be admissible, but it would certainly not be in a civilian or regular military court martial.

It is quite arrogant and self serving that BushCo point the finger at others when it is their incompetence that has gotten us into many of the messes that we are in right now.

Turns out that Lippold's is not quite taking responsibility for his own lapses:

A Navy inquiry questioned whether Lippold had taken appropriate measures to prevent an attack on the vessel. No one was in the ship's command center when the suicide boat rammed into the Cole's side, there were no lookouts on deck, and no planning had been undertaken for such an eventuality. Lippold, however, was not disciplined and was allowed to keep his command.

OOPs..

You on the other hand though a talented lawyer and obviously a prolific reader are making your assumptions on just a sprinkling of selected sentences.

I think Judge Pohl is not disobeying a direct order.
Note that distinction.  A "direct order."  That means he has not gotten the proper paperwork or direct verbal commands, from the proper authorities.  "The forms haven't been met."

I would assume that no "signs, countersigns or codes" are needed in this instance, but still there are forms that need to be followed.

The President himself a lawyer didn't do proper due diligence and follow the chain of command, but he is new and like the former President Bush seems to think Executive orders are like "God's will!"

Now why didn't Judge Pohl take the easier though perhaps not correct path and blindly leap to follow the Executive order?  That is a good question, but I think that Judge Pohl has demonstrated in the past to the chagrin of the Bush Administration  that he will do what he thinks is right, not what is politically expedient.

And yes, I believe that Judge Pohl doesn't expect to go much beyond 30 years in the military, and will retire with honor and a clear conscience much as many in the Pentagon did when they refused to go along with the Bush Administrations statements about how easy it would be to invade Iraq, and even give a Tax cut along the way.