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Lawyer: Gitmo Trials Pegged to '08 Campaign
By Carol Rosenberg
MiamiHerald.com
Friday 28 March 2008
The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military
commissions motion that senior Pentagon officials are orchestrating war crimes
prosecutions for the 2008 campaign.
The Pentagon declined late Friday to address the defense lawyer's allegations,
noting that the matter is under litigation.
The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged
the integrity of President Bush's war court.
Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy
Defense Secretary Gordon England, a veteran White House appointee, asked lawyers
to consider Sept. 11, 2001, prosecutions in light of the campaign.
"We need to think about charging some of the high-value detainees because
there could be strategic political value to charging some of these detainees
before the election," England is quoted as saying.
A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics,
saying "the trial process will surface the facts in this case."
"It has always been everybody's desire to move as swiftly and deliberately
as possible to conduct military commissions," he added. "But I can tell you
emphatically that leadership has always been extraordinarily careful to guard
against any unlawful command influence."
The brief quotes England as a stipulation of fact and cites other examples
of alleged political interference, which Mizer argues makes it impossible for
Salim Hamdan, 37, to have a fair trial.
It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan
as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership
exercises "unlawful command influence."
Allred has set hearings at Guantánamo for April 30.
Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden
whose lawyers challenged an earlier war court format to the U.S. Supreme Court,
which struck down the war court as unconstitutional.
Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan
before and during the 9/11 attacks and allegedly working as his sometimes bodyguard.
Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda
co-conspirator.
As described the Hamdan brief, the England meeting came three weeks after President
Bush disclosed in a live address that he had ordered the CIA to transfer "high-value
detainees" from years of secret custody to Guantánamo for trial.
Bush also disclosed that the CIA used "an alternative set of procedures"
to interrogate the men into confessing - since revealed by the CIA director,
Air Force Gen. Michael V. Hayden, to include waterboarding.
They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other
men against whom the Pentagon prosecutor swore out death-penalty charges in
a complex Sept. 11, 2001, conspiracy case on Feb. 11.
The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11
attacks. The men have not been formally charged. Instead they are in the control
of a White House appointee, Susan J. Crawford, whose title is the war court's
convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.
Under the law governing the commissions, the alleged 9/11 conspirators would
formally be charged 30 days after Crawford approves them.
That currently leaves a seven-month window during the 2008 election campaign.
An expert on military justice, attorney Eugene Fidell, said the Hamdan motion
brings into sharp relief the problem of Pentagon appointees' supervisory relationship
to the war court.
"It scrambles relationships that ought to be kept clear," said Fidell, president
of the National Institute of Military Justice.
The quote attributed to England is "enough that you'd want to hold an evidentiary
hearing about it, with live witnesses. It does strike me as disturbing for there
to be even a whiff of political considerations in what should be a quasi-judicial
determination."
England is a two-term White House appointee. He joined the Bush administration
in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary
and then returned to the Pentagon, where he supervised the prison camps' administrative
processes.
Crawford was a Republican attorney appointee in the Pentagon when Vice President
Dick Cheney was defense secretary.
Hamdan's military lawyer argues that standard military justice has barriers
that separate various functions, which he contends Pentagon appointees have
crossed in the war court.
In April the defense team plans to call the former chief prosecutor, Air Force
Col. Morris Davis, who recounted the England remark since submitting his resignation,
claiming political interference.
Davis, who had approved charges against Hamdan, served as former chief Pentagon
prosecutor until he resigned over what he called political interference by general
counsel William J. Haynes.
Haynes has since quit.
They also want to call as a witness the deputy chief defense counsel, a retired
Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly
sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.
In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which
the defense team claims illustrates the muddied role of the legal advisor.
He supervised the prosecution, announced the 9/11 conspiracy charges on Feb.
11, then said he would evaluate them independently and recommend to Crawford
how to proceed.
The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions
by a variety of feisty uniformed defense attorneys, who have doggedly used civilian
courts and courted public opinion against the process since the earliest days.
Mizer sent the brief directly to reporters for major news organizations, rather
than leave it to the Office of Military Commissions to post it on a Pentagon
website.
The Pentagon has been releasing motions for the public to read after they have
been argued - and ruled on by the judge.
With delays in other cases, the Hamdan case is now on track to be the first
full-blown U.S. war-crimes tribunal since World War II.
The current time frame would put the trial before the Supreme Court rules on
an overarching detainee rights case in June.
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