Lawyers for detainees seek to delay tribunals

WASHINGTON -- Lawyers for Guantanamo Bay detainees going before the first military tribunals since World War II are seeking to delay the trials, disqualify a key official, and make public as much of the evidence against their clients as possible, motions posted on a Pentagon website this week reveal.

Four detainees who have each been held for more than two years since being captured in Afghanistan are set to go to trial this fall or early next year for their alleged involvement with Al Qaeda. The motions will be decided by the presiding officer, retired Army Colonel Peter Brownback III, at hearings at Guantanamo Bay the week of Aug. 23.

The tribunals, which the military is calling ''commissions," have drawn intense scrutiny from human rights activists.

The military is seeking to try David Hicks, an Australian who joined Muslim guerrilla movements in Chechnya and Afghanistan, first. The other three defendants, all accused of being personal aides to Al Qaeda leader Osama bin Laden, will follow.

A Pentagon spokesman said the military would not comment on the motions because the presiding officer had not yet ruled on them. Military defense lawyers involved could not be reached yesterday.

Eugene Fidell, president of the National Institute for Military Justice, said the motions show the defense lawyers are mounting an attack on the the process structure, as well as the conduct of prosecutors and the presiding officer.

''This signals there is going to be skirmishing about the extent to which these proceedings can be conducted in secret and about the timeliness of the government's disclosure of evidence," Fidell said. ''The defense argument obviously looks like it's going to be that 'there was foot-dragging by the government and our ability to prepare was compromised.' "

For example, one defense lawyer, Navy Lieutenant Commander Charles Swift, strongly objected to a prosecutor's effort to prevent the defense from asking questions about the manner in which the detainees were interrogated. Swift is defending Salim Ahmed Hamdan, a Yemeni whom the military accuses of being bin Laden's driver.

The same prosecutor, Navy Commander Scott Lang, is also handling the case of Ali al Bahlul, a Yemeni who was allegedly a bodyguard for bin Laden. In that case, he asked the presiding officer to order the defense team to prevent both classified documents and those marked ''For Official Use Only" from reaching the public.

In another defense motion, Swift moved to disqualify the presiding officer's assistant, who is not named, for allegedly acting as an unauthorized legal adviser to the presiding officer.

Swift also attacked the presiding officer's apparent intention to decide legal questions -- such as ruling on these motions -- on his own, then join the other four members of the commission to decide the facts of the case. Such a procedure, he suggested, would make him a de facto judge who then takes part in the jury deliberations, which ''is not in keeping with Anglo-American notions of justice and the deliberative process."

The defense motions also depict an extremely difficult work environment, marked by problems in obtaining access to evidence, clients, and translators. Those conditions make ''speedier preparation impossible," one said.

For example, Hicks's civilian defense counsel, Joshua Dratel, wrote that the government gave him an illegible copy of a piece of evidence. The last time he visited Guantanamo, he asked to see the original but it was lost.

''During our last visit, the evidence could not be found, so I will try to accomplish the review this time," Dratel wrote. ''What typically would take a few hours [in meeting with a client] requires a visit to [Guantanamo] that takes at least a few days."

Navy Lieutenant Commander Philip Sundel, who is defending Bahlul, requested a delay of one trial from the prosecution's proposed start date of Nov. 8 to July 2005.

''Due to government inaction in providing an interpreter, counsel have been unable to communicate with Mr. al Bahlul since mid-April," Sundel wrote, noting he had only met with his client for two days since taking the assignment. ''Consequently, counsel have been unable to take even the beginning steps toward preparing the case for litigation."