Guantanamo terror trials challenged

GUANTANAMO BAY NAVAL BASE, Cuba – In a challenge that could make or break upcoming trials by a special military commission, defense lawyers are moving to dismiss terrorism charges against Osama bin Laden’s chauffeur and an Australian cowboy who joined the Taliban.

Hearings on the motions beginning today will test the boundaries of international law on the eve of U.S. elections that ultimately could change the mission that has detained some 550 terror suspects from more than 40 countries at this U.S. military base in Cuba, most without access to lawyers or official charges.

Only four of the detainees, classified as enemy combatants, have been charged with war crimes and face trials before a special three-member military panel starting in December.

The first pretrial hearing is for David Hicks, an Australian cowboy who joined Afghanistan’s ousted Taliban regime. He is charged with attempted murder, aiding the enemy and conspiracy to attack civilians, commit terrorism and destroy property. Hicks has pleaded innocent.

Before his Jan. 11 trial can start, however, the panel must hear a series of motions disputing the charges and challenging his nearly three-year detention at this remote U.S outpost.

President Bush ordered the military commissions about three years ago, the first time the United States has ordered such trials since World War II.

If Democratic Sen. John Kerry wins Tuesday’s election, he could abandon the presidential order.

Defense lawyers contend the U.S. military can’t charge someone in connection with a crime he committed before the president ordered the commissions. They also allege that bin Laden’s al Qaeda organization isn’t a state so international laws of war don’t apply.

If defense pretrial motions are accepted, the whole process could be thrown into turmoil and trials at Guantanamo could be disrupted or postponed. Defense attorneys say Hicks has been denied the right enshrined in the U.S. Constitution to a speedy trial, unfettered access to attorneys and the right to fair proceedings. They also have challenged a rule prohibiting him from being present for classified parts of his trial, saying he can’t defend himself properly unless he knows the allegations..

But prosecutors contend Hicks fought with the Taliban and took up arms against U.S. and coalition forces. Because he and the other Guantanamo prisoners are considered enemy combatants – a classification giving them less legal protection than prisoners of war receive – prosecutors argue he isn’t entitled to the same rights.

The second week of motions hearings scheduled to begin Saturday is for Salim Ahmed Hamdan, a 34-year-old Yemeni who has said he earned a pittance chauffeuring bin Laden but denies supporting terrorism.

Hamdan is charged with conspiracy, a charge his attorney says the commission is not authorized to hear.

“Conspiracy is not part of the law of war,” said attorney Lt. Cmdr. Charlie Swift, who also is concerned about Hamdan’s mental health.

Swift has filed dozens of motions including an argument that having ties to al Qaeda does not constitute a crime.