Lawyers, alleged terrorists consult on court ruling
GUANTANAMO BAY NAVY BASE, Cuba — Bolstered by a U.S. Supreme Court victory, defense attorneys streamed onto this base Monday to consult alleged al Qaeda captives on whether to sue in federal court over their war-on-terror detention.
The lawyers arrived by early-morning charter from Washington, D.C., organized by the Pentagon’s Office of Military Commissions to ferry lawyers, staff and observers to this week’s hearings for two detainees who were captured, separately, as teenagers in Afghanistan.
Canadian Omar Khadr, accused of the July 2002 grenade killing of a U.S. soldier, Wednesday goes before a new war court judge, Army Col. Patrick Parrish. Khadr’s original judge is retiring.
Then Thursday, an Air Force defense attorney is calling witnesses to argue for dismissal of war crimes charges against Afghan Mohammed Jawad, accused of maiming two other U.S. soldiers in a different grenade attack in a Kabul marketplace.
The military commissions hearings are the first since the Supreme Court ruled 5-4 that the 270 ”enemy combatants” at this remote U.S. Navy base can, one by one, challenge their detention in federal courts, through habeas corpus petitions.
The Supreme Court decision effectively allows civilian judges to independently evaluate Pentagon findings that the foreign prisoners are too dangerous to be let go, or sent home.
It also undermined the Bush administration doctrine that sought to curb detainee rights by keeping them here, offshore.
”The landscape has changed,” declared Navy Lt. Cmdr. Brian Mizer, defense attorney for Osama bin Laden’s driver.
His client is Salim Hamdan, a Yemeni on track to face trial by military commission later this summer, becoming the first Guantánamo detainee to face the first U.S. war crimes tribunals since World War II.
Australian al Qaeda foot soldier David Hicks earlier averted trial by pleading guilty to a war crimes charge in exchange for a nine-month sentence. He is free.
Monday, Mizer joined the lawyers’ pilgrimage to the prison camps from the Washington Beltway to consult with Hamdan as well as his other client, alleged 9/11 co-conspirator Ammar al Baluchi, facing death if convicted.
Also arriving were the four lawyers for alleged 9/11 mastermind Khalid Sheik Mohammed, Baluchi’s uncle; the Army defense attorney for Ahmed Khalfan Ghalani, accused of the 1998 East Africa Embassy bombings; and counsel to Saudi captive Mustafa Hawsawi, accused of financing the 9/11 hijackers.
For his part, Attorney General Michael Mukasey and other Justice Department officials said the Supreme Court ruling would have no impact on the war crimes trials where the Pentagon plans to try up to 80 detainees.
Pentagon prosecutors and Bush administration advocates argue that the point of the war court is that war-on-terror detainees don’t get the same rights as U.S. citizens.
But Mizer and other war court lawyers argue that detainees facing trial can use the habeas corpus petitions as a tool to contest their charges as well, invoking a range of constitutional rights.
As captives, the argument goes, they were interrogated without the right to remain silent, subjected to ”cruel and unusual punishment” and are facing ex post facto charges for crimes enacted after they were allegedly committed.
Unclear Monday was whether the alleged architect of the Sept. 11 terror attacks would seek to sue for his freedom to avert or delay the Pentagon’s complex war crimes case, which seeks the death penalty for five alleged conspirators in the mass murder of 2,973 men, women and children in New York, the Pentagon and a Pennsylvania field.
”We’re going to talk to him about his options,” said Boise, Idaho, lawyer David Nevin, a civilian criminal defense attorney chosen by the American Civil Liberties Union to defend Mohammed, known in CIA circles as KSM.
”I’m going to talk to Mr. Mohammed about where he wants to go from here,” he added.
The meeting would be the first since Mohammed’s June 5 arraignment, in which Mohammed said he would defend himself at trial — and would welcome martyrdom were the U.S. to execute him.
Now that the Supreme Court has given detainees recourse to civilian courts in a case called Boumediene vs. Bush, the question is whether Mohammed wants attorneys to file a habeas corpus petition on his behalf — claiming his detention is unlawful.
The Supreme Court ruling ”may change our client’s perspective. But I don’t have the faintest idea,” said Navy Reserves Capt. Prescott Prince, KSM’s Pentagon-appointed defense lawyer.
Also, lawyers who had been shuttling to remote Guantánamo for years noted that the Supreme Court ruling rendered this outpost useless to the degree that it did not seal off detainees from recourse to the U.S. Constitution.
”The thing about Boumediene is, we really don’t need to be down here any more,” said Navy Lt. Cmdr. William Kuebler, a military defense attorney, as he rode a ferry crossing Guantánamo Bay ahead of Wednesday’s hearing for the Canadian captive, Khadr.
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