The Navy lawyer for Osama bin Laden's
driver argues in a Guantanamo military commissions motion that senior Pentagon
officials are orchestrating war crimes prosecutions for the 2008 campaign.
The Pentagon declined late March 28 to address the defense lawyer's
allegations, noting that the matter is under litigation.
The brief filed March 29 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 Guantanamo 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 Guantanamo 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.