Guantánamo Bay Judge Admits Possible Error
GUANTÁNAMO BAY, Cuba — As the military panel at the trial of a former driver for Osama bin Laden deliberated for a full day Tuesday without reaching a verdict, the presiding military judge said he might have given the members incorrect legal instructions about how the international law of war is to be applied here.
“I may well have instructed the members erroneously,” said the judge, Capt. Keith J. Allred of the Navy, during one of several sessions called outside the hearing of the six-member panel of senior military officers who are considering war-crimes charges against the driver, Salim Hamdan.
For a few hours Tuesday morning, defense lawyers suggested that they might use the judge’s admission to press for a mistrial, which could have disrupted the Pentagon’s effort to complete its first war-crimes trial at the United States naval base here. But by day’s end, it appeared that both sides had agreed to permit the panel members to continue deliberating under the original instructions Judge Allred read to them Monday morning.
One reason the government has given for prosecuting Guantánamo detainees as war criminals is that terrorist attacks by Al Qaeda violate the international rules of war. Those rules require, for example, that armed forces wear recognizable uniforms and carry firearms openly.
But prosecutors said Tuesday that the judge had defined “murder in violation of the law of war” incorrectly. He did not tell the panel that it would be a violation of the law of war for an unlawful combatant, like a member of Al Qaeda, to kill a member of an opposing military service during combat.
The defense said that such a killing might be an ordinary crime that could be prosecuted in American courts and that it was not a war crime for an enemy to kill a soldier in combat.
But the prosecutors argued that an unlawful combatant, like a Qaeda fighter without a military uniform, violates the law of war by killing in combat. While Judge Allred’s ruling is not binding on other military commission judges, it could influence them, and both sides cited legal precedents about the issue that could be critical to this case and others here. Judge Allred said he was not certain of the answer.
A prosecutor, Clayton Trivett, said the judge’s interpretation could limit the prosecution’s options in other cases here. He noted that prosecutors had said they might charge as many as 80 detainees with war crimes in the military commissions at Guantánamo.
“The concern for the prosecution,” Mr. Trivet said, “is that the law be right.”
Mr. Hamdan is charged with two war crimes, conspiracy and providing material support to a terrorist organization. Within those two charges are 10 specifications, and only one could be undermined if Judge Allred’s instructions proved incorrect.
That specification asserts that Mr. Hamdan, who was captured with two shoulder-fired missiles in his car, conspired with unknown people to kill Americans during the war in Afghanistan in 2001. The defense argued that might be a crime, but not necessarily a war crime.
Guantánamo Bay Judge Admits Possible Error - NYTimes.com
August 6th, 2008 | Category: Guantanamo, Kangaroo Kourt, Salim Hamdan, travesty of justice
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