Lawyer: Pentagon using Guantanamo trials to influence '08 election

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MIAMI HERALD

Posted on Fri, Mar. 28, 2008

Lawyer: Pentagon using Guantanamo trials to influence '08 election

BY CAROL ROSENBERG



The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations, noting that the matter is under litigation.



The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the integrity of President Bush's war court.



Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England , a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.



''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics, saying ``the trial process will surface the facts in this case.''



''It has always been everybody's desire to move as swiftly and deliberately as possible to conduct military commissions,'' he added. ``But I can tell you emphatically that leadership has always been extraordinarily careful to guard against any unlawful command influence.''



The brief quotes England as a stipulation of fact and cites other examples of alleged political interference, which Mizer argues makes it impossible for Salim Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership exercises ``unlawful command influence.''

Allred has set hearings at Guantánamo for April 30.



Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose lawyers challenged an earlier war court format to the U.S. Supreme Court, which struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan before and during the 9/11 attacks and allegedly working as his sometimes bodyguard. Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda co-conspirator.



As described the Hamdan brief, the England meeting came three weeks after President Bush disclosed in a live address that he had ordered the CIA to transfer ''high-value detainees'' from years of secret custody to Guantánamo for trial.



Bush also disclosed that the CIA used ''an alternative set of procedures'' to interrogate the men into confessing -- since revealed by the CIA director, Air Force Gen. Michael V. Hayden, to include waterboarding.



They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men against whom the Pentagon prosecutor swore out death-penalty charges in a complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11 attacks. The men have not been formally charged. Instead they are in the control of a White House appointee, Susan J. Crawford, whose title is the war court's convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would formally be charged 30 days after Crawford approves them.



That currently leaves a seven-month window during the 2008 election campaign.



An expert on military justice, attorney Eugene Fidell, said the Hamdan motion brings into sharp relief the problem of Pentagon appointees' supervisory relationship to the war court.



''It scrambles relationships that ought to be kept clear,'' said Fidell, president of the National Institute of Military Justice.



The quote attributed to England is ``enough that you'd want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.''



England is a two-term White House appointee. He joined the Bush administration in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary and then returned to the Pentagon, where he supervised the prison camps' administrative processes.



Crawford was a Republican attorney appointee in the Pentagon when Vice President Dick Cheney was defense secretary.



Hamdan's military lawyer argues that standard military justice has barriers that separate various functions, which he contends Pentagon appointees have crossed in the war court.



In April the defense team plans to call the former chief prosecutor, Air Force Col. Morris Davis, who recounted the England remark since submitting his resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon prosecutor until he resigned over what he called political interference by general counsel William J. Haynes.

Haynes has since quit.



They also want to call as a witness the deputy chief defense counsel, a retired Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.



In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which the defense team claims illustrates the muddied role of the legal advisor.



He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11, then said he would evaluate them independently and recommend to Crawford how to proceed.



The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions by a variety of feisty uniformed defense attorneys, who have doggedly used civilian courts and courted public opinion against the process since the earliest days.



Mizer sent the brief directly to reporters for major news organizations, rather than leave it to the Office of Military Commissions to post it on a Pentagon website.



The Pentagon has been releasing motions for the public to read after they have been argued -- and ruled on by the judge.



With delays in other cases, the Hamdan case is now on track to be the first full-blown U.S. war-crimes tribunal since World War II.



The current time frame would put the trial before the Supreme Court rules on an overarching detainee rights case in June.



© 2008 Miami Herald Media Company. http://www.miamiherald.com



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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs


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