GUANTANAMO BAY NAVY BASE, Cuba — Osama bin Laden's driver lost a bid to call alleged Sept. 11 mastermind Khalid Sheik Mohammed as a defense witness Wednesday, but won the right to argue he is a prisoner of war, not a war criminal.
A military judge issued the preliminary rulings in the latest government effort to formally charge Salim Hamdan, 36, at a military commission — hours after the U.S. Supreme Court heard arguments on an overarching Guantanamo detainee question.
But the hearing, slated to continue Thursday toward an arraignment, revealed his U.S. defense lawyers' strategy to get their client's war-crimes charges dismissed for a third time in five-plus years of confinement at this offshore detention center.
They asked Navy Capt. Keith Allred, the judge, to hold a battlefield-style Geneva Conventions hearing on whether Hamdan is in fact a POW, not an unlawful enemy combatant.
POWs, lawyers for both sides argued, can only be tried by U.S. military court-martial, so a favorable ruling would mean he could not face justice under the terror court President Bush set up and Congress enacted for al-Qaida members and other alleged terrorists.
"You're not an alien unlawful enemy combatant if you are a driver or just a farmer working on one of Mr. bin Laden's farms," argued Navy Lt. Brian Mizer, on the defense team.
The Pentagon claims that Hamdan is an unlawful enemy combatant — a prerequisite for trial by military commissions — because he served as bin Laden's driver, and allegedly also was a bodyguard, attended a training camp and ferried weapons for the al-Qaida organization.
His lawyers claim he is an ordinary prisoner of war by Article V of the Geneva Conventions, which, unlike Congress' law that created terror offenses that can be tried at commissions, covers civilian support units of armed forces and inhabitants of nonoccupied territory who spontaneously take up arms.
Allred, a veteran Navy judge who earlier dismissed charges against Hamdan on a technicality, said he had yet to thoroughly consider whether the Article V argument could be considered. "It will take a great deal of work," he said.
In a sense, the issue dovetailed with the topic the justices debated at the U.S. Supreme Court in the case of 37 other Guantanamo captives, not yet charged by commission: whether panels of U.S. military officers — not judges — adequately screened the 300 or so detainees now here to determine whether they were properly held in indefinite detention as "enemy combatants."
Meantime, Allred said he would accept evidence on the question as it applies to Hamdan on Thursday — possibly to include testimony by telephone from the man's wife and brothers-in-law back home in Yemen and from two other Guantanamo captives not charged with any crimes and not classified as high-value detainees.
Defense attorneys were granted extraordinary dark-of-night access to the prison camps Wednesday to interview a captive who arrived in September 2004, a Jordanian. Also, an attorney for a Moroccan captive was seeking immunity from prosecution from the Pentagon's supervisor of the war court before agreeing to testify as a witness for Hamdan.
The father of two with a fourth-grade education — who claims he took to driving on the one-time Saudi millionaire's Afghanistan farm for the money — was sporting a white head-dress partially fashioned like a turban and traditional Yemeni garb.
Hamdan, who took on the White House in an earlier war court challenge, and won, looked fit and was sporting a goatee and followed the proceedings with grim seriousness. He exchanged some grins with the judge — a veteran Navy judge, and his second on a commissions case.
Allred rejected a request to call three so-called high-value detainees to the court from behind the razor wire at Camp Delta, saying the defense had not asked for them in timely fashion and the security hurdles for obtaining their testimony this week would be too daunting.
The defense argued the men sent here in 2006 for future trial after years in CIA custody might say Hamdan didn't join al-Qaida's inner circle that carried out secret terror operations.
Chief case prosecutor, Army Lt. Col. William Britt, had objected, saying defense lawyers did not have special secret clearances to see the men — and at this stage neither did Britt, who is the deputy chief prosecutor.
Defense lawyer Charles Swift, a former Navy officer, argued the inner circle of senior al-Qaeda leaders at the prison camps, including Mohammed, could lay out the al-Qaida structure.
John Murphy, a Justice Department prosecutor assigned to the case, accused the team defending Hamdan of going on a fishing expedition for favorable evidence.
"If you are to go down that road, you could use it to interview every detainee in the camp," Murphy protested.
The hearing is a prelude to a probable arraignment by Hamdan, only the third man to go before President Bush's latest formula for military commissions.
Australian David Hicks, 36, pleaded guilty to being an al-Qaida foot soldier and is imprisoned at home ahead of a New Year's Eve release. Canadian Omar Khadr, who was captured in Afghanistan at age 15, is charged with a terror murder charge for the July 2002 grenade killing of a U.S. Army medic.