Tight deadlines, rules allowing hearsay evidence and limited access to Guantanamo Bay will hamper efforts to defend three prisoners facing military trials at the Navy base in southeast Cuba, their attorneys say.
The new rules, set forth in a Pentagon manual, are based on a law passed last year by Congress that restored President Bush’s plans for special military commissions to try some of the detainees held at Guantanamo Bay. The new law was enacted after the U.S. Supreme Court ruled in June that earlier planned military trials violated U.S. and international law.
“After all the work that was put into evaluating and raising possible challenges to the old structure, we now have this new 238-page manual dropped in our lap a week and a half ago,” said Marine Corps Maj. Michael Mori, the lawyer for David Hicks, an Australian accused of fighting for the Taliban.
The lead prosecutor for the tribunals, Air Force Col. Morris Davis, said the military provided defense attorneys with most of the evidence more than a year ago.
“If they spent more time on preparation and less time on pontification, they might be ready for trial,” Davis said.
Hicks is expected to be formally charged by the military by the end of next week, along with Omar Khadr, a Canadian accused of killing a U.S. Army Special Forces soldier during a firefight in Afghanistan, and Salim Ahmed Hamdan, a Yemeni accused of supporting al-Qaida operatives.
Authorities drafted charges — including murder, conspiracy and providing material support for terrorism — against the three on Feb. 2.
Once formal charges are filed, a timetable requires preliminary hearings within 30 days and the start of a jury trial within 120 days at Guantanamo Bay, where nearly 400 men are held on suspicion of links to al-Qaida or the Taliban.
The defense attorneys, in separate interviews Tuesday with The Associated Press, said the new tribunal rules have put them at a disadvantage even before the trials begin.
Navy Lt. Cmdr. Charles Swift, Hamdan’s Pentagon-appointed lawyer, said he has not yet been allowed to interview any of about 70 government agents who contributed statements expected to be used as evidence against his client, a former driver for Osama bin Laden. Hamdan denies any role in terrorism.
Hearsay to be admissible
Under the new rules, prosecutors will be allowed to use hearsay. That means that a written account of what a detainee said while being interrogated can be used as evidence, but the interrogator himself doesn’t have to appear at the trial, Swift said. The Pentagon manual says witnesses such as military personnel or CIA officers may not be available to testify.
“You can’t cross-examine a piece of paper,” Swift said.
Davis said any hearsay evidence in the three cases would be corroborated by witnesses, photographs or other tangible evidence.
The manual prohibits the use of statements obtained through torture and “cruel, inhuman or degrading treatment” but allows some evidence obtained through coercion before Dec. 30, 2005, and deemed reliable by a judge.
Swift said the tight deadline for trials aims to deny defense attorneys opportunities to question thoroughly the reliability of evidence.
“Of course they want to rush through because hearsay is admissible, and they don’t want anybody to be investigated,” Swift said. “Also, because statements can be obtained by coercion, they don’t want to say how they got them.”
Defense can't speak with clients
The defense attorneys said one of their greatest obstacles is their inability to speak with clients unless they travel to the U.S. military prison at Guantanamo Bay.
Marine Lt. Col. Colby Vokey, an attorney for 20-year-old Khadr, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantanamo. He said Khadr is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.
“Everything about Guantanamo is an obstruction. It’s practically impossible to represent somebody down there,” said Vokey, adding that he has not been able to show Khadr any evidence because guards have refused to let him bring it into their meetings.