By Carol Rosenberg | Miami Herald

GUANTANAMO BAY NAVY BASE, Cuba — Defense lawyers seized upon a debate inside the Obama administration Wednesday to seek dismissal of a charge of material support for terrorism against an alleged al Qaeda foot soldier accused of plotting attacks against U.S. coalition troops in Afghanistan.

In the seeking the dismissal, military attorneys for Mohammed Kamin, 30, cited a senior Justice Department lawyer's recent Senate testimony that the Obama administration has concluded that the charge is not an appeal-proof war crime. Material support for terrorism is the only charge Kamin faces.

"They cannot ethically proceed on this charge in this forum,'' argued Navy Lt. Rich Federico, Kamin's Pentagon appointed attorney. "It's appalling. It's just a waste of everyone's time.''

The judge did not rule on the spot. The case prosecutor, Navy Lt. Rachel Trest, argued for the status quo while the new administration works to rewrite rules governing military commissions.

At issue was testimony by Assistant Attorney General David Kris, head of the Justice Department's National Security Division. Kris testified that the Justice Department had concluded that while material support for terrorism is a crime in civilian federal court, it was not defined as a violation of the laws of war until Congress passed the Military Commission Act in 2006.

Since the charge, which can involve anything from donating money to a terrorist group to serving alleged terrorists meals, encompasses a wide range of activities that have not previously been considered war crimes, Kris warned that a court might throw out the cases. Kris indicated that administration lawyers grappling with how to change the military commissions created during the George W. Bush presidency to provide defendants with greater due process rights have examined whether or not the charges had been introduced elsewhere as a violation of the law, including at The Hague.

"There are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war," Kris testified July 7. "The president has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system's legitimacy."

Pentagon prosecutors argue they are proceeding with pre-trial hearings at military commissions under the current manual. Navy Capt. John Murphy, the chief war crimes prosecutor and a former Justice Department attorney, would not be drawn into a discussion of what would happen were the category of crime to be eliminated.

Kamin, brought here in 2004, allegedly got al Qaeda training after U.S. troops invaded Afghanistan and then set up missiles and mines against coalition forces, which never exploded.

Air Force Col. Thomas Cumbie, Kamin's judge, agreed with defense lawyers that the rules of court were still evolving. But he also noted that the category of crime still existed and "it's not a done deal until it's a done deal.''

Of the 11 Guantanamo detainees who've been charged here, 10 face material support for terrorism allegations.

Providing material support for terrorism was the only crime that Osama bin Laden's Yemeni driver, Salim Hamdan, was convicted of last year. A military jury acquitted him on conspiracy charges.

Murphy prosecuted that case and sought lengthy imprisonment. But jurors sentenced him to time served plus five and a half months and Hamdan was returned to Yemen and is now free.

Hamdan civilian defense attorney Harry Schneider said Wednesday afternoon from Seattle that the debate appeared to enhance a Hamdan clemency bid already on file with the Pentagon.

"We've always been of the view that [material support] was not a war crime and the conviction should not stand,'' said Schneider, who has been appealing Hamdan's conviction although his client has returned to his homeland.

Were the Obama administration to withdraw material support as a military commissions crime, he added, "Salim would be exonerated in the sense that he would never have been convicted of anything.''

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