Osama bin Laden’s Yemeni driver will on Tuesday become the first Guantánamo Bay prisoner to stand before a United States military commission to face war crimes charges, in proceedings that have been denounced as unfair by human rights groups and American military lawyers.
Defence lawyers for Salim Ahmed Hamdan and three other prisoners facing preliminary hearings this week are expected to challenge the legality of the proceedings, and the nature of interrogations under which the defendants made statements.
Unlike courts martial for US soldiers, there is no right of appeal to an independent civilian court. Instead appeals will be heard by another panel appointed by the defence secretary, Donald Rumsfeld.
”This is a throwback,” Eugene Fidell, a Washington lawyer specialising in military law, said. He said that the last time such tribunals were held was during World War II, when suspected German saboteurs were put on trial .
”There are questions of independence and impartiality of the kind that would make eyebrows twitch in Strasbourg” — home of the European court of human rights — Fidell said.
Hamdan is in the first batch of four Guantánamo Bay prisoners to face preliminary hearings by the commission, made up of five US officers and chaired by a retired army colonel, Peter Brownback.
David Hicks, a former Australian kangaroo hunter turned Islamic jihadist, will face war crimes and attempted murder charges tomorrow, followed by Ali Hamza al-Bahlul, a Yemeni poet, and a Sudanese accountant, Ibrahim al-Qosi.
Bahlul and Qosi are alleged to have acted as bodyguards for Bin Laden. According to his US military lawyer, Hamdan worked as a driver for the al-Qaeda leader at his farm near Kandahar until his capture in November 2001.
The lawyer, Lieutenant Commander Charles Swift, said the 34-year-old Yemeni knew nothing about his boss’s links to terrorist attacks against the US. The prosecution accuses him of conspiracy, arguing that not only did Hamdan know about the terrorist plots, he also delivered arms to al-Qaeda.
Hicks fought with the Kosovo Liberation Army in 1999 and converted to Islam in 2000. He is alleged to have attended al-Qaeda training camps from January 2001 and to have met Bin Laden once. None of the defendants is accused of killing Americans, but they could all face life sentences.
The hearings will take place in a specially built T-shaped courthouse overlooking the sea at the Guantánamo Bay base, an isolated US outpost on the south-eastern tip of Cuba. The defendants will have the charges read to them.
Observers from the American Bar Association and international human rights groups will attend the proceedings, along with journalists. But they will be excluded when classified information is discussed. Photographs and sketches of the participants are banned.
Defence lawyers have complained that they have been given severely limited access to their clients, and until recently have not been given interpreters. The lawyers and human rights groups have criticised many of the regulations, including the admission of hearsay as evidence and the government’s right to monitor conversations between defendants and lawyers.
John Altenburg, a retired major-general supervising the commissions, said no such monitoring had taken place so far.
”So the effect of monitoring of attorney-client discussions is speculative,” he said, adding: ”The attorney has to be advised that that’s going to happen. The expectation is the attorney will tell his client that this is happening. And lastly, any information gleaned from that monitoring will be completely firewalled from the prosecution and the criminal investigators and will be kept in national security intelligence channels only.”
Altenburg said that, as in US civil trials, defendants had the right not to testify and would be presumed innocent until proved otherwise and that guilt would have to be proved beyond reasonable doubt.
However, Fidell said that there were likely to be severe restrictions on the defendants’ right to call witnesses.
In June, the supreme court ruled that Guantánamo Bay fell under the jurisdiction of US civilian courts and that the prisoners therefore had the right to challenge their incarceration in court. In response, however, the Pentagon has established its own review boards to hear the challenges in an attempt to avoid inmates taking their case to district courts in America.
The commission could set trial dates for the four men at this week’s hearings, but defence lawyers could also ask for a delay, arguing they have not had sufficient time to talk to the defendants. Some have only been given interpreters in the past few days. – Guardian Unlimited