Lawyers Want Detainees To Testify in Terror Trial

By Jerry Markon
Washington Post Staff Writer
Tuesday, July 15, 2008

GUANTANAMO BAY, Cuba, July 14 -- Attorneys for Salim Ahmed Hamdan said Monday that they intend to call other detainees to testify at his upcoming military trial here, entangling the landmark proceeding in yet another difficult legal issue.

The lawyers representing Hamdan, Osama bin Laden's former driver, said the eight prospective witnesses include Khalid Sheik Mohammed, the self-described mastermind of the Sept. 11, 2001, terrorist attacks, who is being held at the U.S. military prison here along with Hamdan and about 265 other captives. Hamdan's trial, scheduled to start Monday, would be the first U.S. military commission trial in more than half a century.

Navy Capt. Keith J. Allred, who is overseeing the proceedings in a threadbare building overlooking Guantanamo Bay, made it clear that the testimony would be admitted in some form, and likely would help Hamdan's case. Allred instructed both sides to work out an arrangement, possibly a time delay or videotaped depositions, to protect national security.

"I want the government to know that I see this as relevant, necessary and exculpatory," the judge said, turning to face the military-civilian prosecution team. "I just believe the defendant cannot have a fair trial without this evidence."

Prosecutors vehemently objected to allowing live testimony from Mohammed and his fellow captives -- who include others accused of playing leading roles in the Sept. 11 attacks -- even though some already have spoken in public at military court proceedings of their own. The testimony, prosecutors said, could harm national security by disclosing vital classified information.

"The prosecution is charged with protecting the national security of the United States," Justice Department prosecutor Clayton Trivett said at a pretrial hearing. "The detainees that they want access to hold in their heads some of the most serious national security and intelligence sources and methods that the United States has."

Defense attorneys said the witnesses could exonerate Hamdan, a former driver at bin Laden's farm in Kandahar, Afghanistan, who is charged with conspiring with al-Qaeda in terrorist acts and ferrying weapons for the group. The defense has long maintained that the Yemeni father of two, now in his late 30s, was a chauffeur who had no involvement in terrorism.

Hamdan, who ranted at the judge at a recent proceeding and slept through a hearing in May, sat quietly with his attorneys Monday, wearing a white headdress and checkered sport coat. He is expected to testify Tuesday about the conditions of his confinement, which the lawyers said again Monday have been abusive.

The dispute over the detainees is the latest snag to plague the military justice system that President Bush established after the attacks. It is similar to the issue that a civilian federal court in Alexandria wrestled with in the case of Zacarias Moussaoui, whose 2006 death penalty trial is still the only one to stem directly from the attacks on the World Trade Center and Pentagon.

Moussaoui also sought testimony from Mohammed and other top al-Qaeda detainees, and prosecutors responded with similar national security objections. The dispute delayed Moussaoui's trial for several years and at one point led to a federal judge dropping all Sept. 11-related evidence from the case.

Moussaoui eventually pleaded guilty to conspiring with al-Qaeda in the terrorist attacks and was sentenced to life in prison. Testimony from Mohammed and several other detainees was introduced in the form of written statements that detailed what the witness would say if he appeared in court.

Hamdan, who was captured in Afghanistan in late 2001, was first charged by the military in 2004, but his case has been delayed repeatedly. It was Hamdan's lawsuit that led to a 2006 Supreme Court decision that struck down Bush's initial military commission system and brushed aside administration arguments that the commander-in-chief should not be second-guessed during wartime.

Hamdan's case was allowed to proceed under a 2006 law that designed a new system, but has been plagued by allegations from the Defense Department's former chief terrorism prosecutor that it was tainted by politics and inappropriate influence from senior Pentagon officials.

The case also was slowed by a ruling from a military judge that Hamdan could not be prosecuted because he had not been first identified as an "unlawful" enemy combatant, as required by the 2006 law. That ruling was later overturned.

Frank Kendall, a lawyer who witnessed Monday's hearing as an observer for Human Rights First, an advocacy organization, contended that the military does not want detainees to testify so it can keep secret alleged torture conducted in secret CIA prisons set up abroad after Sept. 11.

"It just seems very excessive," he said of the prosecution's argument.

U.S. military officials declined to comment.

Staff researcher Julie Tate in Washington contributed to this report.

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