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Trials to begin for 4 inmates { August 24 2004 }

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Trials to Begin for Four Inmates at Guantanamo
Terror suspects will be the first tried by a U.S. military commission since World War II.
By John Hendren
Times Staff Writer

August 24, 2004

GUANTANAMO BAY, Cuba Opening new and uncertain chapters in both the war on terrorism and the history of American criminal justice, four men go on trial this week before a special commission of military judges and prosecutors on charges growing out of the Sept. 11 attacks.

The men one from Australia, one from Sudan and two from Yemen who were swept up on battlefields in Afghanistan face prosecution before a military commission, a bitterly contested judicial mechanism that lay dormant for half a century until it was resurrected by President Bush to deal with terrorism.

The trials, which begin today at the U.S. naval base at Guantanamo Bay, have drawn comparisons to the Nuremberg war crimes trials that followed World War II, in which Allied prosecutors verbally jousted with sometimes unrepentant Nazi officers some of whom eventually were executed.

But although the international trials after World War II may have helped quench a thirst for justice, the proceedings at Guantanamo reflect deep differences between then and now.

A chief distinction is that, unlike the Nuremberg military trials, the United States is conducting the Guantanamo proceedings alone, not in cooperation with its allies in the war on terrorism.

Another difference is that the Nuremberg trials sought to redress wrongs that occurred during a conflict that had ended. Not so with the Guantanamo trials.

"They're unique because they're not taking place at a time when, from a conventional point of view, there is no war going on," said Detlev Vagts, an authority on international law and treaties at Harvard Law School. "The war on terrorism could go on forever, and orthodox wars come to ends."

Also, though the Nuremberg trials featured prominent members of Adolf Hitler's leadership air force chief Hermann Goering, Hitler deputy Rudolf Hess and others none of the four facing preliminary hearings in Cuba this week was a top figure in Al Qaeda or the deposed Taliban regime.

"The people being tried are quite small fry, or so it seems," said Eugene R. Fidell, president of the National Institute of Military Justice, a nonprofit organization of attorneys who represent military defendants. "You don't have a general officer here, or the equivalent."

Those who have been charged at Guantanamo so far have included a driver and bodyguards for Al Qaeda leader Osama bin Laden, a bookkeeper and others who are charged with conspiring against the U.S. forces in Afghanistan.

Neither Bin Laden nor Taliban leader Mullah Mohammed Omar has been caught. Kuwaiti Khalid Shaikh Mohammed, the accused Sept. 11 mastermind, is in U.S. custody along with reputed fellow plotter Ramzi Binalshibh, a Yemeni. Both are being questioned in ongoing investigations, but have not been charged.

Other accused members of Bin Laden's network have been apprehended in Britain and Pakistan, and the United States plans to seek their extradition. Other defendants Zacarias Moussaoui, who is being prosecuted in Virginia on conspiracy charges, and Richard C. Reid, who was convicted of trying to blow up a Miami-bound plane with explosives in his shoe have faced conventional U.S. trials.

But each of the more than 580 detainees at Guantanamo is subject to trial by military commission, which the U.S. last used during World War II for Nazi saboteurs and was revived by Bush two months after the Sept. 11, 2001, terrorist attacks.

The first of the four defendants, Salim Ahmed Hamdan of Yemen, has admitted to driving a pickup truck in Bin Laden's fleet of cars. Two more, Ali Hamza Ahamad Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan, were allegedly Bin Laden bodyguards.

Al Bahlul and Al Qosi are charged with conspiring to commit war crimes. Hamdan is charged with conspiring to commit murder and attacks on civilians. A fourth defendant, Australian David Hicks, is charged with conspiring to commit war crimes and attempted murder.

"What makes [the trials] historic is it's the first use of this institutional machinery in over half a century," Fidell said. "That's a long hiatus for an institution."

Though the Bush administration has singled out 11 other prisoners for trials by military commission, there are 570 detainees at the U.S. naval brig at Guantanamo Bay who have not been charged.

All are undergoing separate, one-day proceedings that will determine whether they are being properly held as enemy combatants or should be released. Those determinations were begun by the Pentagon after the Supreme Court ruled in June that detainees must be allowed access to U.S. courts. But they have no bearing on the cases of those already charged.

The military commission trials will be heard by a Pentagon-appointed panel of five officers, who will arrive at verdicts based on evidence and arguments presented by military prosecutors and challenged by military and civilian defense lawyers.

In a windowless, fluorescent-lighted room that seats fewer than 80, the first four trials will begin with what Pentagon officials describe as an unspectacular series of preliminary hearings this week that will resemble the dull and motion-filled opening proceedings of trials everywhere.

Perhaps the most dramatic day is likely to be Wednesday, when Hicks unrestrained and in civilian clothes rather than the orange jumpsuit he has worn for more than two years is reunited with his family in the hearing room.

It is a sight no one outside the courtroom will ever see. TV cameras will produce closed-circuit videos, delayed to give the presiding officer, retired Army Col. Peter Brownback III, the equivalent of the judge in a conventional trial, a chance to stop classified information from being disseminated beyond the eight reporters allowed in the room at any time. But the cameras will not store film. No photos or tape recordings will be allowed.

Reporters briefly threatened not to attend the hearing sessions when Brownback sent word late Monday that reporters must write in longhand and in English and that if national security information were released, military officers would seize reporters' notebooks, rip out the offending pages, redact them and give the reporters back photocopies.

Brownback relented after being told that reporters had signed ground rules agreeing not to disclose national security secrets and would not agree to the late change in the rules.

The hearings begin today with the case of Hamdan, who has acknowledged to his lawyer that he drove Bin Laden and others around in a pickup truck and various cars from the Al Qaeda fleet.

Although the military lawyers assigned to defend the prisoners work for the Pentagon, they have challenged the basic structure of a military commission.

"The structure is very discouraging and inadequate. It's essentially a denial of due process," said Joshua Dratel, a New York criminal lawyer who is assisting in Hicks' defense.

Lawyers for the accused have asserted, among other things, that the government obtained confessions and other evidence through coercive techniques. They are expected to tie documented abuses at the U.S.-run Abu Ghraib prison in Iraq with testimony that recently released Guantanamo detainees similarly were stripped and physically abused. Hamdan's attorney, Navy Lt. Cmdr. Charles Swift, has filed a series of motions, many of which challenge the commission's legality.

The National Assn. of Criminal Defense Lawyers, on whose board Dratel sits, has declared that the tribunal rules offer such weak protections that lawyers could not ethically claim to represent their clients.

Nevertheless, the specific terms negotiated with U.S. officials for Hicks by Dratel and the Australian government are fair enough that he can participate, the attorney says, although he plans to challenge a broad range of commission rules.

Among human rights groups, the American Civil Liberties Union and Amnesty International plan to act as observers. British and Australian officials have protested the system as a "kangaroo court."

The military is expected to work to maximize the legitimacy of the commissions in the eyes of critics.

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