One judge in the Guantanamo Bay military tribunal has threatened to suspend the case against a Canadian terrorism suspect if Pentagon prosecutors continue withholding evidence from the defense.
Another judge has disqualified an Air Force general from advising the war-crimes court because of what he agreed was the general's politically motivated "unlawful command influence."
On Tuesday, the Pentagon lawyer in charge of the military tribunal approved charges that carry the death penalty against confessed Sept. 11 mastermind Khalid Shaikh Mohammed and four alleged co-conspirators but dropped them against the alleged "20th hijacker" without saying why. Mohammed Qahtani in February had been designated for prosecution along with the others.
As the six-year effort to bring alleged terrorists to justice crawls toward its first trial next month, military jurists have been distancing themselves from the prosecutorial juggernaut that appeared to have been launched earlier this year to bring swift convictions before the November election.
Tribunal Convening Authority Susan J. Crawford's approval of the capital charges against Mohammed and four other detainees sets off a 30-day clock for their arraignment. But defense lawyers have signaled that they will challenge procedures and the admissibility of evidence in their cases, which will probably delay the trial until at least the end of the year.
Qahtani's Army lawyer, Lt. Col. Bryan Broyles, said Crawford seemed to have recognized that his client couldn't be prosecuted because of the way he had been treated at Guantanamo. "An objective view of the evidence in his case . . . would convince any attorney with criminal law experience that the charges should be dropped," Broyles said.
The New York-based Center for Constitutional Rights said a leaked interrogation log showed that Qahtani had been subjected to beatings, sleep deprivation, sexual humiliation, attacks by dogs, threats against his family members and further threats that he would be sent to foreign countries that condone torture.
Crawford dismissed the charges "without prejudice," meaning they could be refiled later. Military tribunal rules "do not require the convening authority to explain her decisions, and she did not do so in this case," said Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman.
Human rights lawyers cast the turnabout as tantamount to admitting that any evidence against the Saudi prisoner had been obtained through torture and was inadmissible.
Military and civilian defense lawyers have complained for years that terrorism suspects cannot get fair trials at Guantanamo. Hearsay evidence and that obtained through coercive interrogation techniques are admissible in tribunal proceedings if the judge deems it necessary. Defendants can be prevented from seeing confidential evidence or confronting accusers whose identities the prosecution considers protected.
Crawford's decision against pursuing Qahtani may suggest uncertainty that the judge will admit the reported confessions obtained via interrogation.
"The government is finally admitting what we have been saying all along: that the government's claims against our client were based on unreliable evidence obtained through torture at Guantanamo," said a statement from the Center for Constitutional Rights, where attorneys have represented Qahtani in habeas proceedings since 2005.
The decision followed a ruling Friday by the judge in the case of a former driver for Osama bin Laden that Air Force Brig. Gen. Thomas Hartmann had shown a lack of independence as legal advisor to Crawford. Hartmann must be replaced before the June 2 start of the trial for Yemeni suspect Salim Ahmed Hamdan, ruled Navy Capt. Keith J. Allred.
At a hearing last month, Air Force Col. Morris Davis, the former chief prosecutor, testified that Hartmann had pushed him to prioritize "sexy" cases in which defendants were accused of killing or wounding Americans to boost public opinion of the tribunal during this election year.
Allred's decision to bar Hartmann affects only the Hamdan case, but defense attorneys for other Guantanamo detainees charged at Hartmann's urging -- including Mohammed and the other "high-value detainees" -- planned to pursue the same exclusion.
It was Allred who dismissed charges against Hamdan and Canadian terrorism suspect Omar Khadr nearly a year ago on grounds that the war-crimes court lacked jurisdiction. That ruling stunned tribunal advocates and forced them to quickly convene an appeals court that revised how jurisdiction is determined.
A week ago, Army Col. Peter Brownback III, the judge hearing Khadr's case, ordered prosecutors to provide the defense with classified prison camp records that the defense lawyers had sought to examine allegations that Khadr was mistreated after his 2002 capture in Afghanistan. Brownback had instructed the government in March to hand over the records and, after a series of contentious exchanges in recent months, said that if the documents weren't in the hands of the defense by May 22, "we stop."
Upon learning that the five Sept. 11 suspects had been charged, Anthony Romero, executive director of the American Civil Liberties Union, complained that security clearances for volunteer defense lawyers were being blocked by the Pentagon. "This raises very serious questions when civilian lawyers and civil liberties organizations step up to the plate in an inherently unfair and fundamentally flawed process and the government still impedes our efforts to do vigorous lawyering," he said.