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Posted on Mon, Jul. 14, 2008
Bin Laden driver wants '9/11 braintrust' as witnesses
BY CAROL ROSENBERG

GUANTANAMO BAY NAVY BASE, Cuba -- A Pentagon prosecutor warned Monday that testimony from an
alleged al Qaeda kingpin, meant to clear Osama bin Laden's driver of war crimes, could help
terrorists topple another American building.

A defense lawyer argued that the charges against the driver, Salim Hamdan of Yemen, were
unconstitutional and urged dismissal.

Thus opened a week-long military commissions session, with a Navy judge acting as referee in
the pre-trial motions that will set the ground rules for Hamdan's trial next week -- the first,
full-blown U.S. war crimes tribunal since World War II.

Cascading rulings this week will determine who can testify, what evidence will be introduced
and what charges a military jury will hear. Unless a federal court issues an injunction, the
Pentagon on Sunday will bring here U.S. officers stationed around the globe to serve as jurors,
known as commissioners.

Meantime, a Pentagon prosecutor warned the judge, Navy Capt. Keith Allred, of dire consequences
if he lets the defense call suspected Sept. 11 mastermind Khalid Sheik Mohammed and six other
former CIA captives to testify for Hamdan.

''It's not the sky that might fall. It's another building,'' said prosecutor Clayton Trivett
Jr. ``In the minds of some of these individuals, they hold some of the mostly closely guarded
secrets in the national intelligence community.''

Hamdan is accused of supporting terror and conspiring in the al Qaeda spectacles -- from the
9/11 attacks stretching back to the October 2000 bombing of the USS Cole and the 1998 East
African embassies bombings. Conviction could carry life in prison.

His lawyers argue that the driver was a nobody, a $200-a-month member of Bin Laden's motorpool
who never fought anyone. They want to call Mohammed and other members of the alleged al Qaeda
brain-trust to describe the role in the organization of the wiry Yemeni with a fourth-grade
education.

At issue is CIA efforts to gag their formerly held high-value captives -- except at their own
carefully screened national security trials, which seek their execution, if convicted.

The agency confirms that it clandestinely waterboarded two of the proposed witnesses, Mohammed
and Abdul Rahim al Nashiri. But the CIA has forbidden the military from disclosing the
circumstances of their capture, how agents interrogated them, the interrogators' names, where
they were held -- and what nations helped the United States.

Were the driver to hear what happened to them at trial, prosecutors argued, he might tell other
detainees who could someday be freed. Defense lawyers proposed to have them testify, like at
their own trials, with Hamdan seated in a soundproof booth, listening on a broadcast delay.
That lets a security officer mute any secrets they might seek to spill.

The judge told prosecutors that he agreed with Hamdan's lawyers that the men could help clear
him -- and ordered the two sides to work out a method for their testimony.

''I want the government to know that I see this as relevant and necessary and exculpatory in
terms of giving the defendant a fair trial,'' Allred said.

He didn't react to Trivett's suggestion that their testimony would topple a tower. Nor did he
flinch when the prosecutor said that neither the judge nor jury -- all senior U.S. military
officers -- had special security clearances to hear testimony from the former CIA captives.

Defense lawyers don't want to know what the CIA did to the witnesses, said Navy Lt. Cmdr. Brian
Mizer, just what they knew of Hamdan's al Qaeda role, if any, before they disappeared into
agency custody in 2003.

The week is shaping up to be one of high drama in the case of Hamdan, the Yemeni whose lawyers
in 2006 won a landmark U.S. Supreme Court ruling that found unconstitutional President Bush's
first military commissions.

• Hamdan testifies about his treatment in U.S. custody on Tuesday, including a defense
discovery in his prison camp records that Hamdan was subjected to a 50-day sleep deprivation
program called Operation Sandman in the summer of 2003. His attorneys want to block all of his
confessions from the trial on grounds he was abused in U.S. custody -- with isolation, sexual
humiliation and, now, sleep deprivation.

• U.S. District Court Judge James Robertson decides Thursday or Friday in Washington D.C.
whether to issue an injunction against the trial. Defense lawyers want the trial stopped until
they can argue that the implications of a June Supreme Court ruling, Boumediene v Bush, once
again makes Hamdan's war crimes trial unconstitutional.

Almost 400 European officials sided with Hamdan, saying the military commissions violate the
notion of fairness and due process, the Associated Press reported Monday.

• A California psychiatrist who has spent 100 hours with the driver testifies about the mental
health consequences of his treatment by the guards and interrogators behind the razor wire at
Guantánamo Bay.

Hamdan, 37, worked for Bin Laden for five years, until his November 2001 capture and allegedly
helped him elude U.S. capture, sometimes served as his bodyguard, and as a weapons courier.

Also, this week, the Navy judge is ruling on an ''ex-post facto'' motion brought by Hamdan's
lawyers, who argue that the case is unconstitutional in the first place. Congress may have
authorized the prosecution of war on terror captives in the Military Commissions Act of 2006.
But the charges -- conspiracy and providing material support for terror -- were not war crimes
at the time he allegedly committed them, they argue.

The driver appeared in his typical war court attire -- a traditional Yemeni gown, neat trim
beard and headscarf. He never cracked the trademark grins of bewilderment at his 2004 court
appearances. Rather, he looked stern like at his last session when he threatened to boycott his
trial in disgust over the four-year on-again, off-again process.

Also Monday, Pentagon defense lawyers protested to the judge that the four-member prosecution
team was still releasing evidence that could help Hamdan at trial -- despite a December 2007
deadline.

Saturday night, Mizer said, the government gave the defense team a carton of 500 randomly
stacked pages, which appeared to reinforce a defense claim that Hamdan was mistreated in
military custody.

• In May 2003, on the eve of FBI interviews used to charge him, he was moved to a ''punishment
block'' and ``stripped of his so-called comfort items.''

• Another notation referred to his 50-day experience with 'Operation Sandman' in 2003, which
reportedly denied sufficient sleep to detainees facing interrogation.

• One entry also noted that ''Alfred Hitchcock'' visited Hamdan in his cell. The famed
Hollywood horror film director died in 1980, at age 80. Mizer surmised it was a codename.

Pentagon spokesmen did not offer any immediate explanations, nor did a prison camp spokeswoman.

The Pentagon's deputy chief defense counsel Mike Berrigan, who has oversight of all the defense
teams, later protested to reporters that the 11th hour disclosure should ``put the lie to the
world that these are full and fair proceedings.''

The Pentagon's war court legal advisor, Air Force Brig. Gen. Thomas Hartmann, has punctuated
his podium appearances with remarks on the transparency and fairness of the trials in a time of
war. Hamdan's judge has excluded Hartmann from oversight of the trial, in a ruling that said
Hartmann appeared to favor the prosecution.

http://www.miamiherald.com/news/breaking_news/v-print/story/604656.html