Guantanamo Tribunal Loses 3 Members Due to Possible Conflicts

The Pentagon has removed three officers from a tribunal panel at Guantanamo Bay, Cuba, another snag in a controversial justice system that resurrected World War II-era courts for trials of alleged terrorists.

Retired Maj. Gen. John D. Altenburg Jr., head of the Pentagon’s Office of Military Commissions, agreed with two defense attorneys who said the two regular panel members and one alternate had conflicts of interest that called their objectivity into question. Altenburg refused defense demands that he throw off two others, including the panel’s judge-like presiding officer.

That leaves three panel members, the minimum allowed to try a case under President Bush’s order creating the tribunals.

In issuing the order, Altenburg recrafted the panel that he had approved.

The ruling followed opening hearings in August that were marked by translation problems and confusion over how to apply a fledgling brand of law for a panel that included a lone lawyer. The proceedings were criticized by human rights and legal observers, who declared them fundamentally unfair.

Meanwhile, defense attorneys have challenged the military tribunal system, both in the commission proceedings and in federal court in Washington.

“What that means is there is going to be a continuing controversy,” said Eugene R. Fidell, president of the National Institute of Military Justice, a nonprofit group of attorneys who specialize in military law.

Altenburg removed two panel members who played active roles in the war in Afghanistan: Air Force Lt. Col. Timothy K. Toomey, who served in Afghanistan on a task force charged with capturing detainees who were eventually sent to Guantanamo; and Marine Col. R. Thomas Bright, a U.S. Central Command officer responsible for moving detainees from Afghanistan to Guantanamo.

“Both officers were actively involved in planning or executing sensitive operations in both Afghanistan and Iraq and are intimately familiar with the ... campaigns that resulted in the capture of the detainees who will appear before these commissions,” Altenburg wrote in his ruling.

Altenburg also removed the alternate panel member, Lt. Col. Curt S. Cooper, who expressed “strong emotions” about the Sept. 11 attacks. He also acknowledged that he could not describe the principal body of international law, the Geneva Convention.

“The fact that these people were on there in the first place was baffling to many observers, particularly since the government had a choice among thousands of candidates,” Fidell said.

Defense lawyers complained that the decision to winnow the panel to three members actually made things easier on the prosecution, which now has only to persuade two of the three panel members to convict their clients. The defense lawyers wanted new panelists to replace those removed.

“The prosecution reduced its burden substantially,” said defense lawyer Lt. Cdr. Charles Swift, who represents Salim Ahmed Hamdan of Yemen, who served as Osama bin Laden’s driver. “It’s a Pyrrhic victory.”

Joshua Dratel, the civilian attorney acting as lead counsel for Australian detainee David Hicks, agreed.

Altenburg denied the challenges to two of the remaining panel members: the presiding officer, Army Col. Peter Brownback III; and Marine Col. Jack K. Sparks Jr. One panel member, Air Force Col. Christopher C. Bogden, was not challenged. The panel will go forward in early November with Bogden, Sparks and Brownback.