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Hearings Open With Challenge to Tribunals

Defense Attorneys Say Military Commissions Deny Due Process to Detainees

By Scott Higham
Washington Post Staff Writer
Sunday, August 29, 2004; Page A12

GUANTANAMO BAY, Cuba -- The historic opening last week of U.S. military commissions that have not been used since World War II was marked by twists and turns and a carefully crafted defense strategy designed to bring the cases against suspected terrorists into the American court system.

While it is too early to tell whether they will be successful, military and civilian defense lawyers spent much of the week lambasting the commissions as legal relics and creating a record of what took place at the Navy base here for possible U.S. court review.

A U.S. soldier stands guard at the maximum security prision at Guantanamo Bay Naval Base in Cuba where those charged as enemy combatants are held. (Pool Photo Mark Wilson)

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In the end, the attorneys are hoping that federal judges will agree with their central argument: that the suspected al Qaeda terrorists and Taliban fighters being tried in a makeshift military courtroom here cannot receive due process and fair trials under the commission process.

"These cases are headed straight to federal court," said Navy Lt. Cmdr. Charles Swift, appointed by the military to represent a man who served as Osama bin Laden's personal chauffeur. "They are making this up as they go along."

Commission officials and prosecutors dismissed the challenges. They said the commissions, created by President Bush two months after the attacks of Sept. 11, 2001, are designed to provide fair trials while protecting national security. Suspects receive key protections, they noted, including the rights to be considered innocent until proven guilty and to not be convicted unless prosecutors establish guilt beyond a reasonable doubt.

"More than anyone in the courtroom, I want a full and fair process," said Army Col. Robert L. Swann, the chief prosecutor of the commissions. "If there is a case on appeal, I want it sustained on appeal."

Last week, the military held the first hearings in what is expected to be a series of trials of suspected terrorists and Taliban fighters to be held before the commissions. The defense lawyers, most of them military officers appointed by the government, dominated the proceedings by questioning the legitimacy of the commissions, their rules and procedures, and the fitness of the men assigned to sit in judgment of their clients. They argued that Bush overstepped his authority by creating the commissions, that their clients' rights to speedy trials have been denied, and that the commissions violate the equal protection clause of the Constitution because only non-U.S. citizens can be tried before them.

Many of the points the defense lawyers tried to make may find their way before U.S. judges because they involve constitutional questions. So far, two of the four defendants formally charged have portions of their challenges already pending in federal court. A third challenge, in the case of an accused paymaster for al Qaeda, is about to be filed in U.S. court, according to his defense lawyer, Air Force Lt. Col. Sharon Shaffer. The case of a fourth man, who admitted in court on Thursday that he is a member of al Qaeda, is on hold while lawyers try to figure out whether he can represent himself or hire an attorney from his home country of Yemen.

Government lawyers dispute defense claims that the commissions are illegitimate. They say the president had the authority to create the commissions, that they borrow procedures from other international tribunals and that the rules do not violate the rights of the accused to receive fair trials.

Defense lawyers for two of the suspects this week questioned the qualifications of the presiding officer of the commissions, Army Col. Peter E. Brownback III, and the other officers appointed to the panel. Together, six commissioners, including Brownback and an alternate, will serve as judges and jurors during the trials. The defense lawyers were permitted to challenge the commissioners under voir dire as they tried to establish that the composition of the commission is fraught with potential conflicts that could undermine fairness.

For instance, the defense attorneys said Brownback, who served as a military lawyer and judge for 27 years before he came out of retirement to preside over the commissions, would exercise "undue influence" over the other commission members, who are military officers but not lawyers. When they gather to deliberate the cases, the defense attorneys argued, Brownback will have more influence over the proceedings because of his legal background.

The attorneys asked that he be removed from the case. Brownback said his departure would not satisfy the attorneys.

"The secretary of defense said there's going to be a lawyer on this thing," Brownback responded Wednesday during hearings in the case against David Hicks, an Australian accused of fighting alongside the Taliban. "You're objecting to the structure of the panel. It doesn't matter what I think. It's the structure. You can bounce me off, and they'll put on another lawyer."

Brownback said he will forward the challenge to retired Army Maj. Gen. John D. Altenburg Jr., who serves as the appointing authority of the commissions.

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