Lawyers for Yemeni terror suspect Salim Ahmed Hamdan won the go-ahead from a military judge Wednesday to argue that the former driver for Osama bin Laden is a prisoner of war, not an unlawful enemy combatant, and therefore outside the reach of the war crimes tribunal.
The defense team was denied, though, the opportunity to call as witnesses three so-called "high-value detainees," including alleged Sept. 11 mastermind Khalid Shaikh Mohammed.
Navy Capt. Keith J. Allred deferred a ruling on whether Hamdan, 37, is entitled to challenge the military tribunal's jurisdiction over his case on grounds that Geneva Convention definitions of those entitled to POW status include civilians in support roles. The defense maintains that Hamdan was a civilian employee of Al Qaeda who was never privy to the organization's inner circle.
If Allred were to be persuaded that Hamdan was never a fighter, the defendant could become the first Guantanamo prisoner to earn POW protections and be removed from the military commissions' process.
Such a determination would also cast further doubt on the Pentagon's claimed right to jail him at Guantanamo indefinitely, as none of the prison facilities on this U.S. naval base in southern Cuba adhere to Geneva Convention conditions for detaining POWs.
In denying the motion to call the three high-value detainees as witnesses, the judge said the lead defense attorney, retired Navy Lt. Cmdr. Charles Swift, hadn't given the court or detention authorities sufficient time to deal with the daunting security measures needed to bring them into court.
The three suspected Al Qaeda kingpins were among 14 brought to Guantanamo from secret CIA prisons abroad in September 2006. In addition to Mohammed, they are accused Hamburg terror cell logistician Ramzi Binalshibh and Al Qaeda's alleged No. 3 figure, Abu Faraj Libbi.
Their whereabouts among the 305 prisoners here remains top secret and the sole hearing each has been accorded was closed to all but the military detention officials -- none of them lawyers -- who conducted the hearings earlier this year.
Swift had also sought an order from Allred for the appearance of three witnesses from Yemen, including Hamdan's wife and brother-in-law, which the judge denied on similar grounds -- that too little time was left to organize the travel.
But Allred granted Swift's request to call a University of Massachusetts Dartmouth professor of Islamic studies, Brian Glyn Williams, and for the defense to gain access to another Guantanamo prisoner. That prisoner, Al Hajj Abdu Ali Sharqawi, a Yemeni known among Al Qaeda leaders as "Riyadh the facilitator," is housed in less stringent conditions. The defense team was granted rare late-night access to the detention camps to interview Sharqawi.
Swift and the team of military and civilian lawyers assigned to defend Hamdan plan to portray the defendant, charged with conspiracy and material support for terrorism, as a simple hired hand.
They sought to bring the top Bin Laden lieutenants into the court to tell the judge that Hamdan had never applied to serve as a fighter for Al Qaeda or been interviewed for membership in the terror group's top tier.
The senior Al Qaeda figures imprisoned here are "certainly in a position to say whether they sat down with him. You're not an alien unlawful enemy combatant if you are a driver or a farmer working for Mr. Bin Laden on one of his farms," said Navy Lt. Brian Mizer, another of Hamdan's lawyers.
Army Lt. Col. William Britt, lead prosecutor in the Hamdan case, urged Allred to reject the defense requests to interview other prisoners and call them into court.
He told the judge that extremely sensitive security measures are in place and that none of the lawyers for the defendants have been cleared to enter the facility where the "high-value" suspects are held.
"Despite being the deputy chief prosecutor, I have never spoken or had access to a high-value detainee," Britt noted.
Wednesday's hearing, delayed until late afternoon by motions heard in closed session and technical problems with translation equipment, was the third attempt to arraign Hamdan.
He was charged with war crimes three years ago under President Bush's 2001 executive order creating the commissions, but those charges were nullified when the Supreme Court struck down the commissions as unconstitutional in June 2006.
After the commissions were reconstituted by Congress last year, Pentagon officials tried to arraign Hamdan again in June of this year but Allred ruled that the military court lacked jurisdiction.
An initial intake hearing, called a Combatant Status Review Tribunal, hadn't determined whether Hamdan was an unlawful or lawful enemy combatant, and only unlawful combatants can be tried by the commissions.
"The [review tribunal] simply did not make the relevant inquiry" into whether Hamdan's actions amounted to unlawful fighting, leaving ample doubt about the commissions' jurisdiction to let the defense argue the issue, Allred ruled Wednesday.