Guantanamo prosecutor returns as defense witness

By Jane Sutton Mon Apr 28, 2:02 PM ET

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The former chief prosecutor for the Guantanamo war crimes tribunals was expected to appear as a defense witness on Monday, called in to testify that the tribunal process was too tainted to provide a fair trial for Osama bin Laden's driver.

Air Force Col. Moe Davis quit the war court last year, complaining that political appointees and higher-ranking military officers were illegally influencing what was supposed to be an independent prosecution of suspected terrorists.

Defense lawyers for bin Laden's driver, Yemeni prisoner Salim Hamdan, asked the judge to throw out the charges on those grounds and summoned Davis as a witness to bolster the case.

Hamdan was disheveled when he appeared in court on Monday and complained he had been unable to use a bathroom beforehand because soldiers insisted on being in the room watching.

"Is that respect?" he asked the judge, adding that he might dismiss his lawyers and refuse to participate.

The judge, Navy Capt. Keith Allred, assured Hamdan his lawyers were trying to help him and called for a recess.

If Allred allows Davis to testify at Monday's hearing, Davis would be in the position of working to dismiss charges he himself had filed against Hamdan, who Davis still believes to be guilty of conspiring with al Qaeda to harm Americans.

"Col. Davis and I won't agree on Mr. Hamdan's guilt but we can agree that the system is not going to be full, open and fair," Navy Lt. Cmdr. Brian Mizer, a military lawyer assigned to defend Hamdan, told journalists attending pretrial hearings at the Guantanamo Bay naval base in Cuba.

Davis' new role put a twist on U.S. efforts to try Hamdan, who filed the suit that prompted the U.S. Supreme Court to strike down as illegal the initial Guantanamo war crimes system in 2006. The charges against him were twice dismissed and then refiled and the military hopes to begin his trial in late May.

Hamdan faces life in prison if convicted of conspiring with al Qaeda and providing material support for terrorism. He has said he never joined al Qaeda, had no advance knowledge of its attacks and took a job as bin Laden's driver because he needed the $200 monthly salary to support his family.

"SEXY" CASES

Prosecutors say he was a trusted al Qaeda member who helped bin Laden escape U.S. forces in Afghanistan and that he had two anti-aircraft rockets in his car when he was captured in Afghanistan in November 2001.

The Bush administration set up the widely criticized Guantanamo court to try suspected al Qaeda operatives outside the regular civilian and military courts. It cited national security concerns and said captives who are not part of any national army do not deserve the rights and protections granted to formal prisoners of war.

Three other prosecutors quit the Guantanamo court in 2004 and said they thought the process was rigged to convict. The 2006 law that provides the framework for the current trial system says prosecutors and defense attorneys are to do their jobs independently.

Defense lawyers said Brig. Gen. Thomas Hartmann, the legal adviser who was supposed to provide impartial advice to the trials' overseer, had effectively joined the prosecution team.

Davis has alleged Hartmann pushed prosecutors to file cases before they were ready and wanted "sexy" cases that "had blood on them," such as one where an Afghan prisoner was accused of throwing a grenade that injured two U.S. soldiers.

Davis said Hartmann tried to dictate which lawyer would try cases and overrode Davis' ban on filing charges that relied on evidence obtained through the simulated drowning technique known as waterboarding.

The Pentagon plans to try as many as 80 of the 280 prisoners in Guantanamo on war crimes charges, and 14 cases are currently pending. Since the United States began sending foreign captives to Guantanamo in 2002, only one case has been resolved, that of Australian former prisoner David Hicks.

Hicks avoided trial by pleading guilty to providing material support for terrorism and served a nine-month sentence as part of a plea negotiated by a Pentagon appointee without the chief prosecutor's involvement.

(Editing by Tom Brown and Bill Trott)