msnbc.com news services
updated 8/24/2004 9:19:11 PM ET 2004-08-25T01:19:11

Osama bin Laden’s chauffeur declined to enter a plea Tuesday until other motions were decided during the first U.S. military tribunal since World War II.

The military-appointed lawyer for Salim Ahmed Hamdan, 34, a Yemeni national, challenged the capacity of four panel members and an alternate to serve, including the presiding officer, Army Col. Peter E. Brownback, a former military judge.

The lawyer, Lt. Cmdr. Charlie Swift, has filed nine motions, including one that challenges the legality of the proceedings because Hamdan’s status as an “enemy combatant” has not been formally determined in a review. Brownback gave Swift until Oct. 1 to file arguments and said the prosecution had to respond by Oct. 15.

In a handout he issued before the hearing, Swift said it was wrong for the commission to proceed without a separate ruling on Hamdan’s status as an enemy combatant, a classification that gives fewer legal protections than afforded prisoners of war. That classification was used to justify trying Hamdan and others before military commissions rather than courts-martial or U.S. civilian courts.

IMAGE: Guantanamo Bay Naval Base, Cuba.
Mark Wilson  /  Pool / via AP
A service member walks past detainees in a courtyard Monday at Camp Delta at Guantanamo Bay Naval Base, Cuba.

Swift also pointed to several potential conflicts among the tribunal’s members.

One member knew a firefighter who was killed in the Sept. 11, 2001, attacks in the United States. Another was in charge of moving detainees to the detention center at the U.S. naval base at Guantanamo Bay. An alternate acknowledged in his interview questionnaire that he had referred to the Guantanamo prisoners at one point as “terrorists.”

“It is important that these proceedings not only be fair, but appear fair to the world,” Swift said.

The challenges now go to the appointing authority, John D. Altenburg Jr., a retired Army general, to decide whether any of the commission members should be removed. It was unclear how soon he might rule.

“Clearly, the impartiality of these panel members is a concern to us,” said Anthony Romero, executive director of the American Civil Liberties Union, who was one of several activists observing the hearing.

No specific acts alleged
Hamdan, who was not shackled and wore a flowing white robe, smiled occasionally as he listened to an Arabic interpreter through headphones, even after hearing charges that could bring life in prison: conspiracy to commit war crimes, including attacking civilians, murder and terrorism. He is not charged with any specific violent act.

Hamdan has said he earned a pittance for his family as bin Laden’s driver before the Sept. 11 attacks, but he has denied involvement in terrorism. U.S. officials allege that he served as bin Laden’s bodyguard and delivered weapons to his operatives.

Tribunal members and prosecutors asked the media not to use the names of the panel members, fearing possible retribution. But their names were previously made public and have been published.

One of them, Marine Col. Jack K. Sparks Jr., said under questioning that he was a commanding officer of a Marine reserve unit and that one of his men was a firefighter who was killed in the 2001 attack on the World Trade Center in New York. He said he went to the funeral and visited the destruction weeks after.

Another member, Marine Col. R. Thomas Bright, said he was in charge of the logistics of moving detainees to Guantanamo Bay and was involved in putting their names in order.

“I assembled the list,” said Bright, chief of staff at the Marine base at Quantico, Va. He said, however, that he had no knowledge of Hamdan.

An alternate, Army Lt. Col. Curt S. Cooper, said on his interview questionnaire that at some point he had referred to the Guantanamo prisoners as “terrorists,” but he said he had no presumption of guilt about Hamdan or any other detainees now.

“It was a very general statement at a very general time,” he said, adding that he had undergone self-study about Islam and al-Qaida to “understand both sides.”

Another panel member, Air Force Col. Christopher C. Bogdan, was involved in arming warplanes during the wars in Afghanistan and Iraq. Air Force Lt. Col. Timothy K. Toomey said he was an intelligence officer in Afghanistan and acknowledged that he might have seen intelligence information on Hamdan.

The only member of the commission with formal legal training is Brownback, the presiding officer, a former military judge who came out of retirement when he volunteered. Swift challenged his participation on the ground that he is not a standing member of a bar association.

Asked by Swift whether he thought the proceedings were legal, Brownback said he chose not to answer.

Swift asked panel members whether they would be willing to consider the legality of President Bush’s order setting up the commissions, which will allow secret evidence and no appeals. They all said yes.

Swift asked other questions of the commission members during a closed session to discuss classified information.

Hearing drags on
During parts of the hearing, images of Hamdan appeared blurry on closed-circuit TV, with a five-minute delay. News service reporters chose to watch from outside the courtroom via television so they could send updates quickly.

Hamdan and three other men being arraigned this week face charges that could bring life in prison, but other detainees could face the death penalty.

The pretrial hearings were initially expected to last four days, but the first hearing progressed slowly because of delays for translation. It could be months before the actual trials begin.

Swift says that Hamdan was a pilgrim who took a job at bin Laden’s farm on his way to Tajikistan in 1996 or 1997, that he had no knowledge of bin Laden’s activities and that he never took up arms against the United States.

Wartime civil liberties

The Defense Department alleges that Hamdan, who is also known as Saqr al Jaddawi, was bin Laden’s driver and bodyguard from February 1996 to Nov. 24, 2001.

The Defense Department also says he transported weapons to al-Qaida operatives, trained at an al-Qaida camp and drove in convoys that carried bin Laden. It does not say he took part in any specific acts of violence.

Hamdan’s family in Yemen has refused to comment.

Two others charged with conspiracy are Ali Hamza Ahmad Sulayman al Bahlul, 33, also of Yemen, and Ibrahim Ahmed Mahmoud al Qosi, a Sudanese man born in 1960. The fourth, David Hicks, 29, of Australia, faces charges of conspiracy to commit war crimes as well as aiding the enemy and attempted murder for allegedly firing at U.S. or coalition forces in Afghanistan.

Australia wants terror suspect freed if acquitted
Australian Foreign Minister Alexander Downer said Tuesday that Australia would press the United States to free Hicks if he is acquitted of war crimes at Guantanamo Bay, Reuters reported.

Hicks is a convert to Islam.

Downer said Australia’s conservative government, a close ally of the United States, would lobby President Bush for Hicks' release if he is acquitted.

“I would expect him to be set free if he’s found to be innocent of the charges brought against him,” Downer said late on Tuesday. “But let’s just wait and see how the trial proceeds before we start casting judgment on what’s likely to happen.”

The Associated Press and Reuters contributed to this report.

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