By Jerry Markon
Washington Post Staff Writer
Tuesday, July 29, 2008
GUANTANAMO BAY, Cuba, July 28 -- Attorneys for Osama bin Laden's former driver on Monday began previewing one of their key themes in his military trial: that the United States was not at war with al-Qaeda during most of the chauffeur's service.
The defense team for Salim Ahmed Hamdan brought to the stand an expert on military law, who testified that an "armed conflict" between the United States and bin Laden's organization began with the Sept. 11, 2001, terrorist attacks. By that point, Hamdan had worked for bin Laden for at least five years.
That is a potentially key legal issue in the historic trial, the first military commission since World War II. The terrorism conspiracy charges against Hamdan declare on their first line that he violated the "law of war." If the United States and al-Qaeda weren't at war, the defense argues, Hamdan's service as one of seven drivers for bin Laden was not a war crime.
"What I believe was armed conflict that existed between the United States and al-Qaeda began with the attacks of 9/11," the defense expert, South Texas College of Law assistant professor Geoffrey S. Corn, told the military jury at the U.S. detention facility here.
Prosecutors still are presenting their case against Hamdan, who faces up to life in prison if convicted. But Corn testified Monday because he will be unavailable later.
During cross-examination, prosecutors emphasized that al-Qaeda began attacking Americans as early as 1991, carried out terrorist attacks in the 1990s and ran military training camps in Afghanistan throughout the decade.
Asked if he was aware that bin Laden issued a religious "fatwa" in 1998 that requires Muslims to kill Americans, Corn said he was and added: "I'll concede that it is something to look at."
Attorneys for Hamdan, a Yemeni father of two with a fourth-grade education, acknowledge that he drove for bin Laden but say he was merely a chauffeur and was not involved in terrorism. The government says that he was aware of the details of attacks, if only after they occurred, and that he guarded bin Laden and transported weapons.
According to the charges against him, Hamdan began working for bin Laden in 1996, five years before the attacks on the World Trade Center and the Pentagon. Government witnesses have testified, however, that Hamdan helped bin Laden escape after the attacks and kept working for the al-Qaeda leader until the driver's capture in November 2001.
Corn testified that 9/11 caused the U.S. government to shift from a "law enforcement paradigm" to an "armed conflict paradigm" in confronting al-Qaeda. Numerous terrorism cases were tried in civilian courts during the 1990s, but the Bush administration has emphasized a more aggressive approach.
The Defense Department also announced Monday that it had charged a 21st Guantanamo detainee. Abdul Ghani is accused of attempted murder and supporting terrorism for allegedly fighting U.S. and coalition forces in Afghanistan.
A Pentagon official will decide whether to refer the charges for trial by a military commission.