- The Washington Times - Wednesday, August 25, 2004

U.S. NAVAL BASE GUANTANAMO BAY, Cuba — The military commission for terror suspect Salim Ahmed Hamdan opened here yesterday, with military officials wading through a series of preliminary deliberations that cut quickly to the core of how the commission will differ from a traditional American court of law.

Hamdan, a native of Yemen, is accused of serving as al Qaeda leader Osama bin Laden’s driver and of war crimes for his suspected involvement in the terror network. He smiled as he entered the courtroom and sat beside his military-appointed defense attorney, after more than two years of detention.

The opening hearing of the first military commission held by the United States in nearly 60 years revolved mainly around a vigorous series of questions raised by Hamdan’s attorney, Navy Lt. Cmdr. Charles Swift, regarding the legitimacy of the court and the qualifications of the five military officers appointed to preside over it.

“What the government seeks to do is punish my client for a crime they made up after he allegedly committed it,” Cmdr. Swift told reporters last night. “That’s it in a nutshell folks. The criminal statute was written when? 2003. Where was my client? Here. Everything that he was alleged [to have done] was written after they’d had him in custody and interrogated him for two years.”

The design of the commission allows for the defense to request that the panel members be replaced if it feels that they are unqualified or incapable of rendering an unbiased ruling on the case.

Cmdr. Swift called for the resignation of retired Army Col. Peter E. Brownback III, a former military judge advocate and judge appointed by the Pentagon as the chief officer presiding over the commission. He also called for all but one of the five members of the panel to be replaced mainly on grounds that they lack the legal qualification to rule over the case.

“My concern is that … you will have an unequal voice in any deliberation,” Cmdr. Swift told Col. Brownback, the only lawyer on the panel. Cmdr. Swift criticized the colonel’s qualifications, saying he was concerned that the colonel was not a member of any legal bar association when the Pentagon pulled him out of retirement recently to preside over the commission.

The request for removal will now move up the chain of command, where it is expected to be ruled upon by retired Army Maj. Gen. John D. Altenburg Jr.

Hamdan was questioned only briefly during the hearing. Early on, he paused to listen to a translation into his native Arabic of a question about whether he understood and spoke enough English to proceed without a translator. He answered into the courtroom microphone: “Laa,” which means “no” in Arabic.

He was not asked to enter any plea after the officer said he was charged with “conspiracy to commit the following offenses: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism.”

Asked how Hamdan felt about yesterday’s hearing, Cmdr. Swift said it had been a day of “really mixed emotions” for his client.

“He’s still trying to figure out this process,” the Navy attorney said.

“These are the most people that he’s seen in, literally, for years,” Cmdr. Swift said, adding that it also was the first time since Hamdan’s arrest that the prisoner has worn any clothing other than a orange prison-issue jumpsuit.

According to Pentagon documents, the lead charge of conspiracy maintains that Hamdan used multiple aliases while traveling through Afghanistan, Pakistan, Yemen and other countries throughout the late 1990s until his capture in Afghanistan in November 2001.

He is accused of meeting with bin Laden in Kandahar, Afghanistan, in 1996. In addition to serving as a bodyguard and driver during the time of the 1998 al Qaeda-attributed bombing of U.S. embassies in Kenya and Tanzania and the September 11 attacks, Hamdan is accused of helping move weapons for al Qaeda in Afghanistan.

President Bush authorized the use of military commissions in November 2001 to try suspects in the war on terror. To date, the administration has declared 15 men held at Guantanamo eligible for the special trials.

The commission of David Matthew Hicks of Australia is expected to open today. Hicks’ parents arrived on the naval base yesterday and are expected to witness today’s proceedings.

Hicks’ father Terry Hicks told reporters here last night that he hasn’t seen his son in five years. He said he does not think the military commission is a “fair and honest system.”

Like the majority of the 585 suspects held here, those who have been charged were arrested during the 2001 campaign to topple the al Qaeda-supported Taliban regime in Afghanistan.

In addition to calling for Col Brownback’s removal from the Hamdan commission yesterday, Cmdr. Swift also grilled the panel’s four other officers: Marine Corps Col. Jack K. Sparks Jr.; Marine Corps Col. R. Thomas Bright; Air Force Col. Christopher C. Bogdan; and Air Force Lt. Col. Timothy K. Toomey. An alternate is Army Lt. Col. Curt S. Cooper. Three votes of the five are needed for a conviction.

Col. Bogdan was the only member whom Cmdr. Swift deemed worthy of sitting on the panel.

In April, after being appointed to defend Hamdan, Cmdr. Swift filed a lawsuit in Seattle federal court challenging the legality of the entire commission process.

Yesterday, Cmdr. Swift raised concerns about whether Col. Bright, who early in the war on terror was involved with processing prisoners later shipped to Guantanamo, will be too biased to rule on the case fairly. Cmdr. Swift also questioned whether military officers who are not lawyers have enough knowledge about the legal process. During one exchange, one officer acknowledged that he was not specifically familiar with the Geneva Conventions.

Neal R. Sonnet, who is observing the commissions as the chairman of the American Bar Association’s Task Force on Treatment of Enemy Combatants, said yesterday’s proceedings were very preliminary.

“We have seen very little today,” he said. “But this is probably the first inch in a mile-long process.”

Mr. Sonnet stressed, however, that “it is the problem any time you have a system that is so enclosed.”

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