Key issues unanswered by Guantanamo tribunals manual

Miami HeraldApril 28, 2010 

GUANTANAMO BAY NAVY BASE, Cuba — The long awaited new rule book for the Obama-era war court doesn't resolve a key issue that bedeviled its predecessor: Whether an accused war criminal can plead guilty to a crime carrying the death penalty directly to a judge rather than to a military jury.

The issue is an important one because accused 9/11 mastermind Khalid Sheik Mohammed had offered to plead guilty in order to achieve what he called "martyrdom.''

The since-departed judge, Army Col. Stephen Henley, had assigned defense attorneys and prosecutors to write briefs on the question in December 2008, a month before President Barack Obama took office.

Obama then halted Guantanamo trials to reform military commissions and give accused greater due process while Attorney General Eric Holder decided to move the Sept. 11 mass murder trial to Manhattan -- a decision now under review.

An answer to the death penalty guilty plea question is omitted in section Rule 910 -- Pleas. A copy of the manual as released to reporters at the war court complex on Wednesday morning.

The 289-page manual does appear to strip war court judges of the authority to grant credit for time served in U.S. military custody in Afghanistan and Guantanamo before a trial. That appeared to be a reaction to the case of Salim Hamdan, who was convicted of providing material support for terror by working as Osama bin Laden's driver and sometime bodyguard.

His judge, Navy Capt. Keith Allred, granted Hamdan credit for some time served, and his jury sentenced him to just 5 ½ months more at Guantanamo in 2008. He returned to Yemen before George W. Bush left the White House.

The latest handbook based on Congress' Military Commissions Act of 2009 included this clause: "The physical custody of alien enemy belligerents captured during hostilities does not constitute pretrial confinement for purposes of sentencing and the military judge shall not grant credit for pretrial detention.''

Defense Secretary Robert Gates signed the Military Commissions manual into use on Tuesday, the eve of hearings here in the terror-murder case of Canadian Omar Khadr, accused of hurling a grenade that killed a U.S. soldier, Sgt. 1st Class Christopher Speer, 28, in a firefight in Afghanistan in July 2002.

Wednesday morning, Khadr's judge, Army Col. Patrick Parrish, delayed until the afternoon the start of an up-to 12-day hearing on whether the Toronto-born captive voluntarily cooperated with U.S. interrogators to give lawyers time to study the manual. Defense lawyers had attempted to argue that the proceedings should not go forward without the rulebook.

The issue distributed at the Camp Justice media center did not appear entirely complete, however.

All that was written was the word "reserved" under Rule 106, "Delivery of unprivileged enemy belligerents to civilian authorities'' and Rule 107, which has no name.

Navy Capt. David Iglesias, the former New Mexico U.S. attorney who is a spokesman for military commissions prosecutors, said that means Defense Department officials could go back later and insert those rules.

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