Historic first terror trial opens at Guantánamo Bay, Cuba

Hamdan case tests special courts for 'illegal enemy combatants.'

By , Staff writer of The Christian Science Monitor

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    A Guantanamo detainee, left, walks in a fenced-in exercise area as a guard patrols on the grounds of the maximum security prison at Camp 5, at Guantanamo Bay U.S. Naval Base, in Cuba.
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Osama bin Laden's former driver is scheduled to stand trial on Monday in the first war crimes tribunal at America's terrorist prison camp at Guantánamo Bay, Cuba.

The historic action comes nearly seven years after President Bush first moved to establish military commissions to try suspected Al Qaeda terrorists.

The special military commission process was designed to offer a stripped-down version of justice to illegal enemy combatants who, by engaging in terrorism, were said to have forfeited any right to more robust legal protections.

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"This is not a law enforcement action; it is war," former Deputy Defense Secretary Paul Wolfowitz said, defending the use of military commissions before a Senate panel in December 2001 – three months after the 9/11 attacks.

Military commissions have been used throughout US history. George Washington used them during the Revolution. Abraham Lincoln authorized them during the Civil War. And those accused of plotting President Lincoln's assassination were tried by a military commission.

In 1942, Franklin Roosevelt put a group of would-be German saboteurs on trial by secret military commission in Washington. The action was upheld by the US Supreme Court and provided a model for the Bush Administration.

But the Guantánamo commission process ran into trouble. It became a lightning rod for international criticism of the administration's controversial legal approach to the war on terror. President Bush's original commission procedures were struck down by the Supreme Court in 2005, and on June 12 the high court invalidated a substantial portion of a new legal regime created at Guantánamo by Congress and the White House in 2006.

Some legal analysts thought that ruling might scuttle plans to put the first of 20 detainees charged with war crimes on trial during the current election year and before President Bush leaves office in January. But last week, both a military judge at Guantánamo and a federal judge in Washington declined to apply the Supreme Court's ruling to pretrial attempts to block pending war crimes trials.

Despite his ruling, US District Judge James Robertson revealed a level of skepticism about the looming commission trials.

"The eyes of the world are on Guantanamo Bay," Judge Robertson wrote in an opinion released in Washington on Friday. "Justice must be done there, and must be seen to be done there, fairly and impartially."

That task falls to Military Judge Keith Allred, a US Navy captain, who has been appointed to preside over the first military commission trial.

The defendant, Salim Ahmed Hamdan of Yemen, is accused of conspiring with Al Qaeda leaders to murder American service members and providing material support to the terror group.

According to his lawyers, he was merely a driver for Osama bin Laden. They say he was an employee rather than a leader, member, or supporter of Al Qaeda.

It will be up to a panel of at least five US military officers to decide the case. Judge Allred will rule on procedural and legal issues and officiate over the introduction of testimony and evidence, but the verdict will come from the commission members.

Legal analysts familiar with the military justice system praise it for its fundamental fairness. But the special military commission that hears Mr. Hamdan's case will not be operating under the same procedures and legal protections available to American military personnel when they stand trial.

Allred can admit hearsay evidence if he believes it is accurate and reveals something important about Hamdan's activities. In contrast, hearsay is routinely excluded from American trials.

The Military Commissions Act of 2006 forbids the use of any evidence obtained through torture. But it permits the judge to admit hearsay evidence obtained from individuals subjected to coercive interrogation techniques – including, potentially, waterboarding, if the judge decides waterboarding is not torture.

Administration officials have defended this provision as necessary to protect sensitive intelligence sources and methods used in the war on terror.

In pretrial motions, Allred has ruled both for the government and against the government in important motions. In June 2007, he dismissed all charges against Hamdan, ruling that the military had failed to prove that Hamdan was an "unlawful" enemy combatant.

But in a new hearing, Allred decided that Hamdan was an unlawful enemy combatant and thus subject to trial by military commission.

In May, Allred ruled that the Pentagon was exerting improper command influence over the Hamdan trial. In an unusual move, he ordered the legal advisor to the Pentagon's Office of Military Commissions to cease any involvement in the case.

The ruling came after a public dispute between the official and the former chief military prosecutor at Guantánamo, Morris Davis, who said the legal advisor was interfering in the work of the prosecutors, instructing them to take aggressive and controversial actions in preparing cases. In addition, Allred has ordered the government to permit defense lawyers access to high-value detainees, including alleged 9/11 mastermind Khaled Shaikh Mohammed. Prosecutors have vigorously objected to the possibility that Mr. Mohammed might play a role in Hamdan's trial.

But defense lawyers counter that Mohammed and others held at Guantánamo should be permitted to testify about Hamdan's role in Al Qaeda – and whether he was merely a driver/employee or a dedicated jihadist.

The Hamdan case is being closely watched by legal observers.

In a report critical of the commission process, Amnesty International quotes an in-court statement made by Hamdan in April in which he complains that even though his lawyers have won many of their court battles, he was still facing trial.

"There is no such thing as justice here," he told Allred. "America tells the world about freedom and justice," he said, "Give me a just court ... give me my human rights."

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