MIAMI - Senior U.S. military officers will be scrambled from around the world this weekend for jury duty at Guantanamo Bay in the Pentagon's first war crimes trial since World War II.
In a victory for the Bush administration in its protracted quest to prosecute terror suspects held at Guantanamo, a federal judge in Washington rejected defense attorneys' appeals yesterday to halt the trial of Osama bin Laden's former driver, Salim Ahmed Hamdan of Yemen, and it will get under way Monday.
Hamdan's lawyers had argued before both U.S. District Judge James Robertson and the military judge hearing pretrial motions at Guantanamo, Navy Capt. Keith Allred, that the trial should be delayed until civilian judges weigh the constitutionality of the tribunal's rules and procedures.
Robertson said that those challenges could be brought during or after the trial and that he would respect "the balance struck by Congress" when it created the war crimes tribunal with the 2006 Military Commissions Act.
Allred rejected defense contentions that Hamdan is entitled to constitutional protections beyond the right of habeas corpus upheld by the Supreme Court on June 12.
Hamdan will be the first from among 265 Guantanamo prisoners to be tried on terrorism charges, and his appearance before Allred and a panel of at least seven senior officers will allow the Bush administration to demonstrate whether the tribunal it created nearly seven years ago works, and can produce convictions.
Robertson's refusal to postpone the start of the trial also allows the Republican administration to put some terrorism suspects on trial before the presidential election. Trials of Canadian prisoner Omar Khadr and five men facing death penalty charges for alleged involvement in the Sept. 11 attacks are also expected to begin before early November.
If Hamdan were to be convicted and sentenced, and the Sept. 11 defendants, including confessed mastermind Khalid Shaikh Mohammed, are tried this fall, it could be more difficult for the next administration to dismantle a judicial system that keeps terrorism suspects off U.S. soil.
Pretrial proceedings under way at Guantanamo have tended to expose flaws in the Pentagon's system for detaining, interrogating and trying foreign terror suspects.
This week, Khadr's lawyers released video excerpts from a 2003 interrogation of the 16-year-old in which he wept and begged for help. In the video that Pentagon officials fought to keep out of the public eye, Khadr also tells his Canadian interrogator that he was mistreated in U.S. custody and removes his shirt to show wounds he said had not healed.
Khadr's trial is set for October, but his military defense lawyer, Lt. Cmdr. William C. Kuebler, has been pressing for his now-21-year-old client to be released or transferred to Canada, where he could be tried in a legal system that respects international covenants on the treatment of child soldiers.
The war crimes court has been under fire from European allies and human rights advocates since its creation in November 2001. Critics lament its lack of due process and the admissibility, if the military judge allows, of hearsay and coerced evidence.
The tribunal, known as the Office of Military Commissions, has also weathered accusations of political corruption.
Bush loyalists within the military and judicial hierarchies have also been accused of exercising what is known as unlawful command influence in pressuring prosecutors to go after high-profile prisoners to impress voters.
Hamdan is charged with conspiracy and material support for terrorism. The 38-year-old Yemeni, who has been jailed at Guantanamo for more than six years, could get life imprisonment if convicted.
Hamdan's lawyers have argued that their client was just a $200-a-month servant, not a committed jihadist involved with al-Qaida's terror plotting.
Allred rejected motions by Hamdan's lawyers claiming that the Constitution's equal-protection clause would be violated by trying their client in an untested judicial system. Allred has not ruled on the admissibility of evidence obtained by Guantanamo interrogators after Hamdan was subjected to sleep deprivation, solitary confinement and sexual humiliation. The Yemeni prisoner testified this week to being subjected to interrogation and detention practices he described as physically and psychologically abusive.
Human rights monitors criticized Robertson's decision.
"It doesn't make sense to conduct a trial under rules that are likely to be found unconstitutional later on," said Jameel Jaffer, director for national security matters for the American Civil Liberties Union. "Proceeding with this trial now will only draw out a legal process that has taken far too long already, and further discredit a system that has been a disgrace from the start."
Carol J. Williams writes for the Los Angeles Times.