Judge allows Guantanamo inmates to testify

Times Staff Writer

Osama bin Laden’s former driver can use testimony by alleged Sept. 11 mastermind Khalid Shaikh Mohammed and some other detained Al Qaeda operatives in his upcoming military trial at Guantanamo Bay because it might help exonerate him, a military judge said Monday.

Defense lawyers said at a hearing that they wanted to call Mohammed and seven other prospective witnesses in the case of Salim Ahmed Hamdan, the first detainee at the U.S. naval base in Cuba to be scheduled for trial. If the proceedings begin next week as planned, it will be the first time the U.S. has held a military tribunal since World War II.

At a pretrial hearing for Hamdan at the naval base Monday, prosecutors said Mohammed and four other men accused of being his co-conspirators in the 2001 attacks on New York and Washington should not be allowed to testify because they might reveal some of the U.S. government’s most closely held secrets, including sources of information about Al Qaeda and ways in which terrorism suspects are interrogated.

“The detainees that they want access to hold in their heads some of the most serious national security and intelligence sources and methods that the United States has,” Justice Department prosecutor Clayton Trivett said.


But Navy Capt. Keith J. Allred, the military judge hearing the case, said that Mohammed and the other men also appeared to have knowledge of events that could favor Hamdan, who has insisted for years that he was merely a driver for Bin Laden who needed the work and never engaged in, or knew about, terrorist activity.

Allred told the prosecutors in the Spartan courtroom that he saw the evidence brought forward by the defense lawyers as being “relevant and necessary and exculpatory.”

“I just believe the defendant cannot have a fair trial without this evidence,” Allred said.

Allred told both sides to work out some sort of compromise, which could include having the government submit written or videotaped testimony from Mohammed, Walid bin Attash, Ramzi Binalshibh, Mustafa Ahmed Hawsawi and Ali Abdul Aziz Ali. A similar technique allowed Mohammed’s testimony to be used in the federal criminal trial of Zacarias Moussaoui in 2003.

Hamdan is charged with transporting weapons for Al Qaeda and helping Bin Laden escape after the Sept. 11 attacks. He was captured in Afghanistan in late 2001 and charged by the military in 2004. His case has repeatedly been delayed and in 2006 led to a Supreme Court decision that forced the Bush administration to redo its military commissions system and get congressional approval for it.

Air Force Maj. Gail Crawford, a legal spokeswoman for the Office of Military Commissions, said the commissions had no immediate response to the judge’s comments.

But, she said, “it is very significant because it puts the prosecution on notice that the judge wants to hear this evidence and that they are going to have to find a way to get it in, and at the same time protect national security. They are supposed to be meeting this week as soon as possible to come up with an alternative.”

Frank Kendall, a lawyer who witnessed Monday’s hearing as an observer for the advocacy group Human Rights First, said in a statement that the military was trying to block Mohammed and other so-called high-value detainees from testifying in order to protect the secrecy of torture allegedly conducted in secret overseas CIA prisons after Sept. 11.

Today, the judge is expected to hear arguments on whether U.S. military interrogators coerced potentially incriminating statements out of Hamdan and subjected him to cruel and possibly illegal conditions of confinement.

The judge’s comments Monday were the latest in a series of legal complications in the Hamdan case. A judge in Washington, D.C., is set to hear arguments this week on whether Hamdan has a right to take his case to federal court; a ruling could effectively stop next week’s military commission in its tracks.

On Monday, several hundred current and former European officials asked the judge in Washington to block Hamdan’s military trial, saying it was “clearly at odds with the most basic norms of fair trial and due process.”

Justice Department spokesman Erik Ablin said, “Our position is that the military commission proceedings are constitutional and . . . should go forward without interruption.”