GUANTANAMO BAY NAVAL BASE, Cuba (AP) – Prosecutors and defense lawyers were expected to call a series of witnesses Thursday as the two sides battle over whether a former driver for Osama bin Laden is beyond the reach of a special military court created to try suspected terrorists.
An expert in Middle Eastern affairs is expected to testify for Salim Ahmed Hamdan to support the defense argument that he could have been a driver for bin Laden without being a hardcore al-Qaeda member with knowledge of terrorist attacks.
Prosecutors are expected to present about five witnesses to back their case that Hamdan should be charged as an unlawful enemy combatant, in the second day of pretrial hearings to determine whether the military tribunal at this isolated Navy base has jurisdiction over the case. It will be the first time that witnesses have made it to the stand since Congress and the Bush administration last year drafted new rules for military trials, known as commissions, after the U.S. Supreme Court tossed out the old version.
The Supreme Court on Wednesday debated, for the third time since 2004, the rights of foreign terrorism suspects held at Guantanamo Bay.
Meanwhile at Guatanamo, a military judge on Wednesday rejected a defense request to talk to the alleged mastermind of the Sept. 11 attacks and two other so-called “high value” detainees to bolster their case that Hamdan was at best a minor al-Qaeda figure.
The defense is seeking to prove their client is a prisoner of war, nd not an unlawful enemy combatant who can be tried before a military commission. If he is a prisoner of war, Hamdan would be subject to the American military court martial system, which detainee advocates say offers more legal protections.
Civilian defense attorney Harry Schneider told reporters that he had hoped that Khalid Sheikh Mohammed and the two other high-value detainees held at this isolated U.S. military base could establish that their client was not a terrorist.
“People who were actively involved unquestionably are in a much better position than me or you or anyone else in this room … to say what Mr. Hamdan was,” Schneider said. In denying the request at least for now, the judge in the case, Navy Capt. Keith Allred, said more time would be needed to overcome the “security obstacles” posed by meeting with men accused of some of the world’s most notorious terrorist attacks.
John Murphy, a civilian prosecutor from the Department of Justice, dismissed the defense’s justification for the interviews with the high-value detainees as a fishing expedition. “You need a showing that it is relevant and necessary. Mere hoped-for evidence gathering is not enough,” Murphy told the judge.
The judge, however, did allow the defense to immediately interview another detainee, Abdu al-Sharqawi, an alleged al-Qaeda operative known as “Riyadh the facilitator,” who is not considered high-value. The defense may present statements from him at Thursday’s court session.
Allred said the defense could also speak with a prisoner who was captured with Hamdan in Afghanistan, but the man’s lawyer has said he will refuse to testify without a grant of immunity from prosecution from the military authority overseeing the tribunals.
Hamdan has been charged with conspiracy and supporting terrorism and faces up to life in prison if convicted. He came to court in a flowing white robe and a grey-checkered sports coat, and smiled when technical difficulties with a translation system delayed the proceedings.
Hamdan has been in custody nearly six years and was first charged more than three years ago. But his prosecution has been delayed by legal challenges, including one he filed that went to the Supreme Court and resulted in the striking down last year of the original rules for military tribunals.
Congress and President George W. Bush responded with the Military Commissions Act, which stripped all detainees of the right to challenge their detention in a civilian court, the focus of Wednesday Supreme Court hearing.
Air Force Brig. Gen. Thomas Hartmann, the legal adviser to the military tribunal system, said the timing of the hearings in Guantanamo and Washington was coincidental.
The U.S. holds about 305 prisoners on suspicion of terrorism or links to al-Qaeda and the Taliban at Guantanamo and plans to prosecute about 80, including the alleged architect of the Sept. 11 attacks. So far, only three detainees have been formally charged and one, Australian David Hicks, was convicted in a plea bargain and sent home.
Hamdan’s defense team argues that he should be considered an enemy prisoner of war who would be entitled to the same rights as a captured U.S. service member and a court martial, a legal system that critics of the government’s tribunal system say has more legal protections for defendants.