Europeans join court pleas for halt to military commission trial

McClatchy NewspapersJuly 15, 2008 

WASHINGTON — Hundreds of European legislators are supporting a man that U.S. officials accuse of being Osama bin Laden's personal driver and bodyguard.

In a much-anticipated hearing Thursday morning, attorneys for Yemeni native Salim Hamdan will try to convince a federal judge to postpone Hamdan's trial by military commission. The first-of-its-kind trial is supposed to start next week in Guantanamo Bay, but Hamdan wants it delayed while he challenges the commission's legality.

"(We) are concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights," European legislators declared in a new legal brief.

The 265 current or former members of the British Parliament and 111 current or former members of the European Parliament did not evaluate Hamdan's guilt or innocence. Instead, they contend that continuing to proceed with Hamdan's military commission trial now would cause "incalculable harm to the fabric" of international law.

Veteran U.S. District Court Judge James Robertson will take the Europeans' 29-page brief into account Thursday, when he considers Hamdan's arguments. The former U.S. Navy officer could rule as early as that day on whether to delay Hamdan's trial.

The Bush administration insists the long-delayed military commission trials must start Monday so that officials can process the remaining Guantanamo Bay detainees and potentially close the facility that's become a legal and public relations headache.

"The prosecution of individuals suspected of war crimes is an important aspect in the armed conflict with al Qaeda, and of United States' efforts to find a long-term solution to the combatants detained at Guantanamo Bay," Assistant Attorney General Gregory Katsas declared in a brief this week.

Skeptics, in turn, caution that the military commissions themselves still need a closer look.

"The administration is barreling forward on an untested trial system, while major doubts remain about its legality," Ben Wizner, an attorney with the American Civil Liberties Union who is not formally affiliated with Hamdan's defense team, said in an interview Tuesday.

Now 37, Hamdan was captured in Afghanistan in November 2001 and eventually ended up at Guantanamo Bay's detention facilities. The Bush administration has been attempting to bring him to trial through a special military commission ever since.

Prosecutors charge Hamdan with conspiracy and with providing material support for terrorism. Hamdan acknowledges having worked as bin Laden's driver, but he denies being a terrorist or even a member of al Qaeda.

"Hamdan is not an unlawful enemy combatant, and so cannot be tried by military commission," Hamdan's attorney, Georgetown University Law Center Professor Neal Katyal, declared in a legal filing.

Hamdan and Katyal previously beat Bush when the Supreme Court in 2006 struck down the original military commission system established by presidential decree. Congress and the White House then tried to fix the problem through legislation that authorized military commissions for alleged unlawful enemy combatants.

The five-member commissions are made up of military officers and presided over by a military judge. The proceedings would resemble a conventional trial, but with crucial differences. The defendants are represented and can call their own witnesses, for instance, but prosecutors can also submit evidence obtained through coercion.

"Hamdan has endured both physical and mental abuse in American custody, including beatings, threats of death to himself and his family ... offensive sexual conduct and other forms of humiliation and pressure designed to foster despair," Katyal argued in his brief.

Congress prohibited Guantanamo Bay detainees from challenging their detention through habeas corpus proceedings. Last month, the Supreme Court struck down this provision but left the military commissions themselves intact.

Hamdan now argues he will be "irreparably harmed" if the military commission trial in Guantanamo Bay proceeds before he can pursue his habeas corpus challenge in Robertson's Washington-based court.

Hamdan contends that it makes no sense to continue with a commission trial if the commission process itself could later be found to be constitutionally unsound.

In response, the Justice Department argues that the trial should take place right now.

"There will be ample opportunity for a (civilian) court to review (Hamdan's) legal challenge, should he be convicted, at the conclusion of the military commission proceedings," Katsas stated in the Justice Department's brief.

McClatchy Newspapers 2008

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