- The Washington Times - Monday, April 21, 2008

GUANTANAMO BAY, Cuba — Hearings for three detainees at the U.S. military base here have raised new doubts about whether a Bush administration plan to try suspected terrorists in military tribunals can be saved.

In addition to legal challenges from the U.S. Supreme Court that forced the Bush administration to rewrite rules for the tribunal two years ago, technical glitches bedeviled what was considered a dress rehearsal earlier this month under the new system.

“From the outside, the system of military commissions at Guantanamo Bay may appear to be open and transparent to some,” said Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, who attended the hearings.

“But when you are here, you realize that this system has been engineered to produce convictions, and that there are significant limitations on lawyers’ access to information even in the early stages,” he said.

Air Force Brig. Gen. Thomas Hartmann rejects such criticisms, calling the commissions “extraordinarily fair” and comparable to traditional military and civilian courts.

Ahmed Haza al Darbi, a Saudi detainee accused of plotting with al Qaeda to destroy ships in the Strait of Hormuz, and Ibrahim Ahmed Mahmoud al Qosi, a Sudanese national said to have been a cook, payroll clerk and driver in the ranks of al Qaeda and personal driver for Osama bin Laden, both refused to take part in the commission during pretrial hearings.

During their respective hearings, al Darbi called his presence at the commission “a crime against humanity,” while al Qosi derided the United States for calling itself “the land of justice and law.”

Gen. Hartmann said the Military Commissions Act (MCA) of 2006 allows detainees to “voluntarily absent” themselves.

“An accused choosing not to participate in the proceedings is certainly not preferred, but neither is it contrary to the MCA,” Gen. Hartmann said.

He was referring to a 2006 law enacted shortly after the U.S. Supreme Court declared the Bush administration’s previous procedures for trying Guantanamo defendants illegal.

Pretrial hearings held for al Darbi and al Qosi were considered by some to be “dry runs” for lawyers and judges to work out any legal and technical difficulties.

Both detainee hearings were also beset by in-court translations from the detainee”s native Arabic into English, at times barely audible to judges and lawyers, forcing the commission to recess until a later date.

The military has said it plans to prosecute about 80 prisoners at Guantanamo, where about 275 men suspected of having ties to al Qaeda or the Taliban are being held.

The trials had been expected to start this summer.

Among the high-profile prisoners military prosecutors hope to try in the coming months is Khalid Shaikh Mohammed, the self-styled mastermind of the Sept. 11 attacks.

The U.S. military says it will televise the Guantanamo trial of Mohammed and five other suspects directly connected to the attacks so relatives of those killed can watch on the U.S. mainland.

“We’re going to broadcast in real time to several locations that will be available just to victim families,” Army Col. Lawrence Morris, chief prosecutor for thewar crimes court, said at the naval base recently.

The trials will be beamed to closed-circuit television-viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts, Col. Morris said.

In February, military prosecutors charged Mohammed and five other captives with murder and conspiracy and asked that they be executed if convicted of plotting to crash hijacked planes into New York’s World Trade Center and the Pentagon in 2001.

The CIA held Mohammed in a secret prison for years and acknowledged interrogating him with methods that included the simulated-drowning technique known as waterboarding.

No trial date has been set, but they are the first Guantanamo prisoners charged with direct involvement in the attacks that killed nearly 3,000 people.

“The military commissions’ system is still a work in progress,” said Benjamin Wittes, a fellow and research director in public law and governance studies at the Brookings Institution.

“Will it work? Will it produce trials that are fair? A huge amount depends on how this is going to be implemented,” said Mr. Wittes, who also attended the hearings.

Critics of the commissions said failures at the detention facilities on the part of interrogators and analysts — two-man pairs known in intelligence circles as “tiger teams” — were to blame for the hearing boycotts and the lack of quality intelligence gleaned from detainees over the last six years.

“[Detainees] gain strength over time,” said a former U.S. military official familiar with Guantanamo suspects who have been subjected to “tiger team” interrogations.

“Torture never works, because people will tell you what you want to hear when they are tortured, and just enough to get you to stop,” said the official, who criticized the relatively short six-hour-per-day interrogation technique used in Guantanamo compared with the up to 18-hour approach employed by U.S. interrogators in Iraq.

But others don”t see detainee refusal to cooperate as a blow to the mission or the detention center.

“People are tried in absentia in the United States all the time. This is not unique to Guantanamo,” said a former Pentagon official with specific knowledge about Guantanamo and its legal proceedings.

“No doubt these detainees are doing all they can to disrupt the court process, but to call the hearings at Guantanamo itself a failure, I think, that is a gross exaggeration.”

This article is based in part on wire service reports.

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