Wednesday, June 30, 2004

The Pentagon announced yesterday the creation of the first commission to try three suspected al Qaeda members held at Guantanamo Bay, Cuba, as the government also made plans to provide new legal rights to all detainees as a result of a Supreme Court decision.

The commission will consist of five military officers, one of whom, Army Col. Peter E. Brownback III, will be called back to active duty as the presiding officer. Col. Brownback is a retired military judge advocate and judge.

The Pentagon’s Office of Military Commissions has selected three of the 595 detainees from the Afghanistan war as the first to face criminal charges and trials. They are David Hicks of Australia; Ali Hamza Ahmed Sulayman al Bahlul of Yemen, a bodyguard for Osama bin Laden; and Ibrahim Ahmed Mahmoud al Qosi of Sudan, also a bin Laden guard and driver.

President Bush designated those captured in Afghanistan as “enemy combatants” not entitled to all the rights of the American court system.

The Supreme Court on Monday ruled the administration had the right to hold them as part of the war on terrorism. But it overruled the administration’s position that it could deny prisoners access to U.S. courts.

The court said each detainee has the right to petition a federal court to free them in what is called habeas corpus. The government would then have to show evidence in court why the suspected terrorists should continue to be held.

The administration is bracing for a flurry of petitions on the detainees’ behalf. One key question is whether each is entitled to a government lawyer. Officials said Justice Department lawyers have been meeting since the decision to determine this and other issues.

The Supreme Court did not say the government was obligated to provide lawyers. But lawyers wishing to defend prisoners should be able to seek a U.S. District Court hearing, said Eugene R. Fidell, a Washington, D.C., defense lawyer who specializes in military law.

“It would seem to me to be an abuse if the government thwarted inner action between willing detainees and willing attorneys,” Mr. Fidell said.

A U.S. District Court judge could rule the government is justified in holding the detainee, or order more hearings, perhaps before a military commission like the one named by the Pentagon yesterday, said U.S. officials, who asked not to be named.

Or, a judge might order a detainee released, meaning the government would then appeal.

The ruling could also mean the Pentagon will no longer send new prisoners to Cuba from Afghanistan. No detainee from Iraq has been sent to Guantanamo.

Legally, the administration believes detainees can be adjudicated in Afghanistan and Iraq since they both now have sovereign governments.

The prime reasons for holding detainees are to keep them off the battlefield and to gain intelligence information on al Qaeda, the Taliban and terrorists groups. A prisoner selected for trial must be suspected of war crimes and is no longer considered an intelligence asset.

“We’re not planning on trying everyone down there,” said Air Force Maj. John Smith, spokesman for the Pentagon’s Office of Military Commissions. “Only the ones where there is evidence they may have committed war crimes.”

The naming of Col. Brownback as presiding officer means all the pieces are in place for the United States’ first military tribunals since World War II. He will likely set dates for three separate trials at Guantanamo once lawyers file defense motions.

The three detainees face a maximum penalty of life in prison if convicted. Besides Col. Brownback, the panel includes four other officers, who are not lawyers: 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. Tommey. An alternate is Army Lt. Col. Curt S. Cooper. Three votes of the five are needed for a conviction.

The three cases, according to Pentagon documents:

• Hicks is charged with conspiracy, attempted murder and aiding the enemy. He converted to Islam in Australia, joined an Islamic militant group in Pakistan and trained at a terror camp in Afghan-istan. He attended advanced courses on surveillance and used those skills to spy on the U.S. Embassy in Kabul. He joined in the fighting against U.S. troops.

• Al Bahlul is charged with conspiracy to kill civilians and other charges. He joined bin Laden’s al Qaeda network in February 1999, when bin Laden based his training and operations in Afghanistan. He participated for two months at al Qaeda’s Aynak camp. He then met and pledged allegiance to bin Laden himself.

He was assigned to al Qaeda’s media office in Kandahar, Afghanistan, where he produced recruitment videos, including one that glorified the bombing of the destroyer USS Cole in October 2000. After the September 11 attacks, al Bahlul helped bin Laden move from Kandahar and became one of his bodyguards.

“While traveling with [Osama] bin Laden, al Bahlul was armed and wore an explosives-laden belt so that he could provide bin Laden with physical security and protection,” Pentagon charging documents say.

• Al Qosi is charged with conspiracy to attack civilians and other charges. The Pentagon says he joined al Qaeda in 1989.

For the next nine years, he provided logistics support for various terror cells. In 1990, he moved from Sudan to Afghanistan. He graduated from the al Farouq training camp.

In 1991, he moved to Peshawar, Pakistan, and worked in al Qaeda finance offices. He disbursed charitable contributions to operators for salaries and travel. He returned to Sudan in 1992 and worked at the Taba Investment Co., a front set up by bin Laden to provide money for training terrorists and to buy explosives. Al Qosi participated in buying and delivering explosives and weapons outside Sudan.

By 1996, al Qosi was helping bin Laden run terror camps in the Tora Bora region of Afghanistan. Al Qosi served as bodyguard, driver and cook.

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