Half the members of a military commission scheduled to hear the first two cases against Guantanamo Bay detainees were removed from the panel for potential bias after challenges by defense attorneys, the Pentagon announced yesterday.
The move by retired Army Maj. Gen. John D. Altenburg Jr., who supervises the commissions, reduced the panel to three military officers, who will act as judge and jury in the upcoming trials of Australian David Hicks and Yemeni Salim Ahmed Hamdan. The suspects are accused of supporting the Taliban and Osama bin Laden, respectively.
Altenburg denied requests to remove the panel's presiding officer and one other officer who remains on the commission. The sixth member of the panel was not challenged.
Altenburg ruled that the three officers he removed -- a Marine colonel, and lieutenant colonels from the Air Force and the Army -- were not appropriate for the commission because they either were connected to anti-terrorism operations in Afghanistan or had personal beliefs that might have affected their objectivity.
While giving in to the defense requests, Altenburg may also have made it more difficult for Hicks and Hamdan to win their cases. With three panelists remaining, prosecutors and defense attorneys must persuade two to prevail.
When the panel comprised five members and an alternate, prosecutors needed four votes to secure a guilty verdict, according to Navy Lt. Cmdr. Charles Swift, Hamdan's defense attorney.
"The relief we've been granted is completely illusionary," Swift said, arguing that the scales have now been tipped against his client. "It only looks good if you don't look close."
Swift said he had expected anyone dismissed from the panel to be replaced, but Pentagon officials said in a statement yesterday that Altenburg had decided to go with a three-member panel, the minimum, for the cases against Hicks and Hamdan.
In a 28-page ruling released yesterday, Altenburg wrote that the testimony of the three dismissed officers in preliminary hearings revealed the potential for bias. Though Altenburg did not identify the officers by name in his ruling, sources confirmed that Marine Col. R. Thomas Bright, Army Lt. Col. Curt Cooper and Air Force Lt. Col. Timothy Toomey were excused from the commission.
Defense attorneys had challenged the appointments of Bright and Toomey because of their connections to the global war on terrorism. Toomey served as an intelligence officer in Afghanistan and Iraq. Bright helped plan the wars in Afghanistan and Iraq, supervised the processing of Taliban detainees to the military prison at Guantanamo Bay, Cuba, and likely handled the transfer of both Hamdan and Hicks.
"Both officers were actively involved in planning or executing sensitive operations in both Afghanistan and Iraq and are intimately familiar with the operations and deployments in support of these two campaigns, campaigns that resulted in the capture of the detainees who will appear before these commissions," Altenburg wrote.
"These experiences create a reasonable and significant doubt as to the ability of these two members to decide these cases fairly and impartially."
Altenburg ruled that Cooper had expressed strong opinions about the Sept. 11, 2001, attacks and once said that all detainees held at Guantanamo Bay were terrorists. Altenburg said that was enough to preclude him from serving on the panel.
Defense attorneys first lodged their complaints during hearings in August, and prosecutors ultimately dropped their opposition to the removal of the three commission members whom Altenburg removed.
Proceedings against Hamdan and Hicks are scheduled to continue Nov. 1.