Gitmo's Courtroom Wrangling Begins

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Defense Counsel / Getty; Molly Corfman / AP; FBI / Getty

From left: Salim Ahmed Hamdan, Col. Morris Davis, and Khalid Shaikh Mohammed

This week at the U.S. Naval base at Guantanamo a military court will hear key pre-trial motions in the terrorism case against Salim Ahmed Hamdan, the onetime driver of Osama bin Laden. Among the defense witnesses will be Air Force Col. Morris Davis, who resigned in protest last fall as Gitmo's chief prosecutor. His allegation: that top Pentagon officials — who are legally required to remain neutral — have tried to exert political influence on the conduct and outcomes of a whole series of high-profile trials scheduled for later this year.

As a result, defense lawyers say they will challenge the basic fairness of the proceedings. Indeed, this week, Hamdan's lawyers will allege "unlawful command influence" over their client's prospective trial. Col. Davis, Guantanamo's former chief prosecutor, is expected to testify that Gordon Englund, the Deputy Secretary of Defense and the Pentagon's second-highest civilian, told him last year, "We need to think about charging some high-value detainees because there could be strategic value before the [November] election." Davis is also expected to repeat, as he has in court filings, that the Defense department's former top lawyer, general counsel William Haynes, informed him, "We can't have acquittals [at Guantanamo]. If we've been holding these guys for so long, how can we explain letting them get off?. We've got to have convictions." Davis is also quite likely to accuse Air Force Brig. Gen. Thomas Hartmann, senior legal advisor to the tribunal, of demanding "sexy" cases with "blood on them" to drum up public support for convictions. "There is no question they wanted me to stage show trials that have nothing to do with the centuries-old tradition of military justice in America," Col. Davis told TIME. All three Pentagon officials have disputed Davis's version of events. So far, none have done so under oath.

Prosecutors have described legal proceedings at Guantanamo as a contemporary version of Nuremberg, the post–World War Two tribunals that decided the fate of the major surviving Nazi war criminals. But for many critics the proceedings promise further bad publicity for the U.S. on a global scale. A dozen suspected al-Qaeda prisoners are in custody in Gitmo, among a prison population that currently numbers 280. The pace of legal motions is expected to increase in coming weeks, as trials loom for six "high-value" prisoners, including Khaled Sheik Mohammed, the self-professed mastermind of the 9/11 attacks. In February, military prosecutors charged the six with murder and conspiracy and called for the death penalty.

In those upcoming trials, the defense may try to use Davis's statements to show that the Pentagon crossed a variety of legal red lines. In Mohammed's case, however, that will include the issue of torture. The CIA held him in a secret prison for years, and has admitted that his interrogation included techniques such as simulated drowning, infamously known as waterboarding. Most experts say that, as a form of mock execution, there is no doubt that waterboarding constitutes torture. (The technique is banned by the U.S. military.) If defense lawyers can show that confessions obtained from Mohammed or others were obtained by torture, or that their testimony against other prisoners was similarly coerced, then that testimony could be ruled inadmissible.

No specific trial dates for the "high value" prisoners have yet been fixed, but when they are, the proceedings will be televised via closed circuit to the U.S. mainland for the benefit of relatives of those killed in the 9/11 attacks. Victims' families will be able to follow the proceedings from Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts.

The proceedings could well be further complicated by an impending U.S. Supreme Court decision: Boumedienne v Bush. The case deals with the question whether alleged terrorist Lakmar Boumedienne, also held at Guantananmo, possesses legal rights afforded by the U.S. Constitution. If the Supreme Court decides in Boumedienne's favor, other Guantanamo defendants could gain similar rights, invalidating rules currently in force at the military tribunals.

Wrangling over legalities is expected to delay at least some of trials, perhaps into next year, well after President Bush has left office. Such contentiousness is not unusual in high-stakes cases, particularly those involving the death penalty, but this time the defendants have even more reason to delay. All three candidates vying for the White House have already called for shutting down Guantanamo. If that were to happen, some or all of the trials might have to be transferred to the U.S. mainland, and possibly even to federal courts, where the defendants would enjoy broader legal rights.