- The Washington Times - Wednesday, August 6, 2008

GUANTANAMO BAY NAVAL BASE, Cuba (AP) | The military avoided a possible mistrial Tuesday in the first Guantanamo war crimes trial as prosecutors sparred with defense lawyers over instructions provided to jurors weighing the fate of Osama bin Laden’s former driver.

Military prosecutors said the judge improperly instructed jurors on a legal definition, a mistake that potentially makes it more difficult to convict Salim Hamdan in the first U.S. war crimes trial since World War II.

The judge, Navy Capt. Keith Allred, said he in fact may have given an incorrect definition of a war crime, but agreed it was too late to revise his instructions to a jury in its second day of deliberations. The defense said redoing the instructions would prompt a mistrial.

Faced with that prospect, prosecutors said they would not seek new instructions.

Mr. Hamdan is charged with two counts of conspiracy and eight counts of aiding terrorism. A conviction on any one of the charges could bring a sentence of life in prison for the Yemeni.

The dispute centered on the charge that accused Mr. Hamdan of conspiring with al Qaeda by transporting shoulder-launched missiles to kill U.S. service members. In his instructions, Capt. Allred said it was a war crime for “unlawful combatants” to kill civilians but did not mention soldiers.

In closing arguments Monday, prosecutors said Mr. Hamdan’s service to the al Qaeda chief over five years in Afghanistan helped his boss execute terrorist plots including the Sept. 11, 2001, attacks in the U.S.

“He is an al Qaeda warrior,” Justice Department prosecutor John Murphy said, pointing to the detainee, dressed in a white robe and tan sports coat.

Defense attorneys say Mr. Hamdan was a low-level bin Laden employee who stayed with him only for the $200-a-month salary. In an effort to prove he was no hardened terrorist, they described Mr. Hamdan’s cooperation in the hunt for the al Qaeda chief following his capture in Afghanistan in November 2001.

His Pentagon-appointed attorney, Navy Lt. Cmdr. Brian Mizer, said in his closing argument that Mr. Hamdan had offered to provide the U.S. with “critical details” at a time “when it mattered most,” in late 2001. The lawyer was barred from providing details, however, because the information was part of secret testimony that was not disclosed in open court.

Cmdr. Mizer said the U.S. never took advantage of Mr. Hamdan’s offer. “You know what happened, how we squandered that opportunity,” he told the jurors.

Capt. Allred told the jurors that four of the six must find Mr. Hamdan guilty “beyond a reasonable doubt” to convict him.

Even if they find him not guilty, Mr. Hamdan may not be released. The military retains the right to hold “enemy combatants” considered a threat to the United States - even those cleared of charges by the tribunals. A guilty verdict would be followed immediately by a sentencing hearing at Guantanamo.

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