By CAROL ROSENBERG
crosenberg@MiamiHerald.com
Overruling government objections, a military judge has agreed to let lawyers for Osama bin Laden's driver send written questions to Khalid Sheik Mohammed and six other alleged senior al Qaeda captives in seclusion at Guantánamo, according to a decision made public Thursday.
Navy Capt. Keith Allred gave the U.S. government until Tuesday to set up an independent security arrangement to help lawyers for Salim Hamdan gather evidence they say could exonerate their client. Hamdan, a 36-year-old Yemeni with a fourth-grade education, is facing trial by military commissions at the remote U.S. Navy base.
At issue is whether captives identified as the senior leadership of al Qaeda can say whether the $200-a-month driver was among those who plotted the suicide attacks on the 1998 U.S. embassies in East Africa, on the USS Cole off Aden, Yemen in October 2000 and the Sept. 11, 2001 attacks.
If Hamdan wasn't part of the plot, his lawyers say, the driver should be found innocent of overarching conspiracy charges. They sought face-to-face interviews with the alleged al Qaeda leaders, notably Mohammed, known in intelligence circles as KSM, the reputed mastermind of the 9/11 plot plus other al Qaeda attacks.
The prosecution argues that Hamdan need not have belonged to the cells that plotted the attacks to have been part of the conspiracy to kill Americans.
In a five-page ruling disclosed by the defense Thursday, Allred ordered the government to assign an independent security officer -- with no ties to the prosecution -- to review the defense lawyers' written questions.
The questions would be then translated by an independent linguist with national security clearances. If Mohammed and the other men reply, their answers would likewise be translated and subjected to a security officer's scrutiny to censor out national security secrets.
Allred limited questions to the captives' duties between 1996 and 2001, when the government alleges Hamdan was a co-conspirator as a driver and sometime bodyguard for bin Laden. They can describe what they did and what their al Qaeda roles were, what they know Hamdan did and the ``relationship between Hamdan and the leaders of al Qaeda, including whether he was planning a conspiracy or a common criminal enterprise to conduct attacks against the West.''
Permissible questions don't include where the men were held or how they were treated in three-plus years of secret CIA custody before their September 2006 transfer to the military at Guantánamo.
The Bush administration considers those details as national security secrets, which is why 15 former CIA captives are now kept in seclusion at Camp 7 apart from the other 260 detainees at the sprawling prison camps.
Navy Cmdr Rick Haupt, the prison camps' spokesman, said Thursday that he was unaware of Allred's order, and would inquire whether those responsible for Camp 7 would be able to implement it.
Even the site of their camp is a secret, although Haupt could not say Thursday whether in fact the location of the camp on the base was classified.
''What does that matter?'' the spokesman said, adding the prison camps were ''just not prepared to discuss'' the restrictions surrounding the special sub-category of captives.
The military judge in effect is emulating a formula designed by a federal judge at the civilian trial of Zacarias Moussaoui, who denied he was part of the 9/11 plot in his material support for terror trial but ultimately pleaded guilty to a conspiracy charge.
In that case, the Department of Justice refused to let the defense send questions to Mohammed, arguing his testimony would harm national security because he was being interrogated in the war on terror.
Hamdan's lawyers have asked to question seven of 15 former CIA detainees including Mohammed; Ramzi bin al Shib, a Yemeni and Mohammed's alleged go-between with some of the 9/11 attackers; Walid bin Attash, another Yemeni who supposedly trained some of the hijackers and Mustafa al Hawsawi, who supposedly helped get funds to the Sept. 11 suicide squads.
Those four men were identified as candidates for execution at Guantánamo as part of a complex six-detainee prosecution the Pentagon unveiled on Monday, charge sheets which await approval from a Bush administration appointee. None of them yet have lawyers.
In addition, Hamdan's lawyers asked to interview Abu Faraj al Libi, Abdul Rahim al Nashiri and Abdul Hadi al Iraqi -- because of their knowledge of other al Qaeda operations in Afghanistan not tied to the Sept. 11 strikes.
The CIA has admitted to waterboarding, or using a techniques known as ''water torture'' to break the will of two of the men -- Nashiri and Mohammed.
But Lt. Cmdr. Brad Mizer, Hamdan's lead defense lawyer, said he does not seek to ask them about their treatment -- only to find out if they might be witnesses to help exonerate the driver, who claims he worked for the al Qaeda founder for an income, not ideology.
Hamdan's chief prosecutor, Army Lt. Col. Will Britt had objected at a hearing last week, saying the prosecution need not prove that Hamdan was part of a planning cell to prove he was an al Qaeda conspirator.
Moreover, he invoked national security and said the military defense lawyer was seeking access to ''the most notorious terrorists ever seen'' based on speculation on what they might say.
Mizer said the ruling was a partial victory for the defense, which sought to meet the alleged senior al Qaeda leadership at Guantánamo to assess their ''credibility or demeanor'' as potential witnesses.
Face-to-face interviews were preferable, he said, because the captives might be suspicious of the written questions, and consider them part of a ruse by interrogators to gather intelligence.
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