Los Angeles Times
August 25, 2004
GUANTANAMO BAY, Cuba — The first trial to be conducted by a military
commission since World War II got underway Tuesday, with a detainee's lawyer
asserting that the presiding officer and all but one of the other panel members
should step down because they lacked the qualifications and credibility to try
Salim Ahmed Hamdan, a Yemeni who was a driver for Al Qaeda leader Osama bin Laden, was the first prisoner to appear at a preliminary hearing here — the first in a series being held this week by the military commission in a courtroom at the brig at the U.S. naval base at Guantanamo Bay.
Hamdan's military lawyer, Navy Lt. Cmdr. Charles Swift, immediately challenged whether Army Col. Peter Brownback should preside over the five-member panel, which will act as judge and jury in the proceedings. Swift said that Brownback, a retired military judge, was not qualified to practice law because he was not a current member of the bar in his home state of Virginia.
"Are you challenging the system or are you challenging me?" Brownback asked.
"We're challenging you, sir," Swift replied.
But the system itself also was put on trial, the defense made clear in the first of four days of courtroom sessions. Swift has 11 motions outstanding, broadly challenging the system. Among other issues, Swift said that Hamdan, who has spent 2 1/2 years in custody, was denied a speedy trial — as were other detainees — and that his client was charged with violating laws written after the acts he allegedly committed.
"In a military commission, one has to be particularly careful that what you are meting out doesn't appear to be victor's justice," Swift said.
He posed complex legal questions Tuesday designed to show that members of the panel and the alternate — none of them lawyers — were ill-prepared to address some of the most complex issues of international law in recent years and would defer to Brownback's legal training in what woul d amount to "unlawful command influence."
"The presiding officer would not even be qualified to be civilian defense counsel here," Swift told reporters afterward.
Swift also alleged that Brownback's office had had improper out-of-court discussions with the Office of Military Commissions. And he accused Brownback of prejudice against timely justice for allegedly saying in a meeting with defense lawyers that a speedy trial was "not an issue here."
If Swift's challenges are successful, the commission would fall short of the three members it needs to function under its founding order by President Bush.
"To state the obvious, we don't believe the defense will be successful in their challenges," said the prosecutor, Navy Cmdr. Scott M. Lang.
Swift's questioning of the panel members revealed that three have what he described as "extensive backgrounds" in dealing with detainees, intelligence and the war in Afghanistan.
One, Air Force Lt. Col. Timothy K. Toomey, serve d in Afghanistan as the intelligence officer in a task force charged with capturing detainees who were eventually sent to Guantanamo Bay. A second, Marine Col. R. Thomas Bright, was a U.S. Central Command officer responsible for moving detainees from Afghanistan to Guantanamo.
"That's a little too close for comfort," said Deborah Pearlstein of Human Rights First, one of five representatives of nongovernmental organizations observing the trials. "These are clearly good people trying to do the right thing in a badly damaged system."
Another panel member, Marine Col. Jack K. Sparks Jr., visited the World Trade Center two weeks after the towers were leveled in the Sept. 11 attacks. He was in New York to attend the funeral of a firefighter killed in the attacks who had served under Sparks as a Marine reservist.
The alternate panel member, Lt. Col. Curt S. Cooper, expressed "strong emotions" about the attacks and acknowledged that he knew little about the principal body of international l aw.
"Do you know what the Geneva Convention is, sir?" Swift asked.
"Not specifically. No, sir," Cooper answered. "And that's being honest." But, he added, he knew that there were three articles of the Geneva Convention.
"Actually," Swift said, "there are six, sir."
Swift sought to disqualify the five panelists he challenged, which would leave just Air Force Col. Christopher C. Bogden, whose only apparent connection to the war in Afghanistan was that a "professional acquaintance" was killed during the Sept. 11 attacks.
Brownback said he would send the challenges to retired Army Maj. Gen. John Altenburg, the appointing authority for the Office of Military Commissions, as required under Pentagon rules. Critics, however, noted that Altenburg was the official who appointed all the panel members. Because the commission is setting precedents, Altenburg previously had asked lawyers on both sides to recommend a standard that any such challenge should meet.
< /strong>The defendant, Hamdan, entered the courtroom barefoot and unshackled, wearing a checked sport coat, a traditional long white robe and a silk head scarf supplied by his family. It was the first time in more than two years he dressed in attire other than the prisoners' standard orange jumpsuit.
Occasionally smiling broadly at his attorney, Hamdan said few words. When asked whether he wanted to keep his lawyer, he said through a translator, "I need attorney Swift and I need an assistant with him as well."
Hamdan deferred until October his plea on charges of being a member of Al Qaeda, conspiring with the organization in committing terrorist acts and destruction of property. That will allow Swift to continue his effort to have the military commission declared unconstitutional in federal court. If convicted of all charges, Hamdan could receive a life sentence.
Moments after Brownback called the hearing to a close, Swift asked him to reopen the proceedings to request that he be allo wed to send to Altenburg an audiotape, recorded during Brownback's meeting with defense attorneys, of which Swift apparently had just learned.
After sitting silently for more than a minute, a visibly shocked Brownback wiped his hands over his face and agreed to allow Swift to pass on the tape, "although the tape was made without my consent." He added: "I'm telling you right now that I don't have a predisposition toward speedy trial."
As Hamdan completed his rare appearance outside his cell, the family of Australian detainee David Hicks — who also is to be tried by the military commission — arrived at Guantanamo, preparing to see their son for the first time in five years. Hicks' father, Terry, denied that his son could be guilty of murder and conspiring with Al Qaeda. He said his son was nothing more than an adventurer.
"David's been an adventurer all his life," he said. "He always wanted to see what was over the fence, and as he got older, the fence got taller."