After questions about their impartiality, three military officers were removed Thursday from hearing the cases of four suspected terrorists held at Guantanamo Bay, Cuba.
Defense lawyers contended the officers potentially were too biased to provide fair trials for the accused al-Qaida supporters. The challenge led the retired Army general overseeing the proceedings to dismiss the officers from those cases, leaving three others to sit in judgment.
The decision will not delay the trials, which the military calls commissions, because they can go ahead with a minimum of three panel members, the Pentagon said in a statement Thursday.
Trials will go forward for Australian David Hicks and Yemeni Salim Ahmed Salim Hamdan on Nov. 1. Hicks is accused of fighting alongside the Taliban. Hamdan is accused of being one of Osama bin Laden’s drivers.
The appointing authority for the commission, John D. Altenburg Jr., upheld the challenge to the three commissioners but denied requests to dismiss two others.
A Pentagon spokesman rejected any notion that the dismissals suggested the commission process was fatally flawed, as some critics have charged.
“We believe this decision validates the system,” said Air Force Maj. Michael Shavers. “It shows the system is flexible and can respond to change. We believe that the panel and presiding officer will full their duty to provide a full and fair trial for the accused.”
Replacement commissioners will be appointed for the cases of Ali Hamza Sulayman al-Bahlul, a Yemeni accused of developing propaganda for al-Qaida, and Ibrahim Ahmed Mahmoud al-Qosi, a Sudan national accused of being an al-Qaida paymaster. Hearing dates in those cases have not been set.
Basis of bias charges
The military did not identify the officers who were dismissed. From descriptions in Altenburg’s ruling, however, it is possible, to determine who would leave the commission.
Two of the officers had participated in the fight against terrorism, providing the defense teams with grounds to challenge their objectivity.
Marine Col. R. Thomas Bright assembled lists of detainees bound for Guantanamo and executed war plans in Afghanistan. Air Force Lt. Col. Timothy K. Toomey, as an intelligence officer, was involved in capture of suspects in Afghanistan. He has said he may have seen intelligence on defendants.
Army Lt. Col. Curt S. Cooper, the alternate member of the commission, has acknowledged calling the prisoners at Guantanamo “terrorists.” He also said he was not familiar with all articles of the Geneva Conventions protecting prisoners of war.
Cooper’s statements created doubt whether he could put aside his emotions during the trials, Altenburg wrote in his decision.
As for Bright and Toomey, Altenburg said their “experiences (in the war) create a reasonable and significant doubt as to the ability of these two members to decide these cases fairly and impartially.”
Two of three remaining panelists challenged
Remaining on the commission is Army Col. Peter E. Brownback, the presiding officer, whose presence was challenged both by defense lawyers and prosecutors. He worked with Altenburg in Fort Bragg, N.C., spoke at a retirement roast for Altenburg and attended the wedding of Altenburg’s son. His wife worked in Altenburg’s office.
Joining Brownback is Marine Col. Jack K. Sparks Jr. He lost a reservist who was working as a firefighter in the Sept. 11 attack on New York City. Sparks attended the man’s funeral and visited the site of the former World Trade Center.
The third commission kept on is Air Force Col. Christopher Bogdan, the only one not challenged by lawyers. He armed drone planes with Hellfire missiles during the wars in Afghanistan and Iraq and was praised in a staff evaluation for his “fantastic results tracking and killing Taliban.”
Altenburg found that his relationship with Brownback did not prejudice Brownback or the trial process, and that Sparks’ experiences did not make him biased.
Last month, Brownback recommended the dismissal of Toomey and Cooper.
The commissioners who were removed will return to their previous duties, the Pentagon said.
The commissions, the first such proceedings held by the United States since World War II, have drawn criticism about their impartiality, translation problems and vague guidelines.
The American Civil Liberties Union, Human Rights Watch and Amnesty International have urged the government to replace the commissions with “fair and impartial trials.”