Jury instruction issue

Possibility of mistrial raised at Guantanamo court

Jane Sutton
Reuters North American News Service

Aug 05, 2008 10:54 EST

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The possibility of a mistrial emerged Tuesday in the United States' first war crimes trial at Guantanamo, after prosecutors said the judge gave flawed instructions to a jury of military officers in the case against Osama bin Laden's driver.

Prosecutors asked the judge to revise the instructions he gave on what constitutes a war crime to the jurors who began deliberating Monday in the case of Yemeni prisoner Salim Hamdan.

Hamdan is charged with conspiring with al Qaeda and providing material support for terrorism while working as the al Qaeda leader's driver in Afghanistan from 1996 until his capture in November 2001.

Defense lawyers said the instructions were correct, but that if the judge found otherwise, a mistrial should be declared.

"It's kind of coming up late in the game," said the judge, Navy Capt. Keith Allred.

He told the lawyers to consult legal scholars and journals and try to discern Congress' intent in the 2006 law underpinning the Guantanamo tribunals.

"Maybe we got it wrong this time," Allred said. "I don't know that that would be grounds for a mistrial."

Hamdan's trial is the first to be conducted by the tribunals the Bush administration created to prosecute non-U.S. citizens on terrorism charges outside the civilian and military court system. The court itself is as much on trial as Hamdan.

Military defense lawyers and human rights monitors say the trials are rigged to convict because they allow hearsay and coerced testimony obtained without prisoners being warned that their confessions could be used against them.

"The verdict that matters most has already been delivered: this trial was a betrayal of American values and will rightly be seen as illegitimate by the rest of the world," said Ben Wizner, who is monitoring the trial for the American Civil Liberties Union.

The complicated issue in dispute Tuesday arises from a disagreement over which acts are war crimes and which are just crimes, a debate that has raged in the United States since the Sept. 11 attacks by al Qaeda in 2001.

The United States classifies Hamdan and the other 265 Guantanamo captives as "unlawful enemy combatants" who do not fight for a national army or wear uniforms or bear arms openly.

The conspiracy charge accuses Hamdan of agreeing with al Qaeda to commit murder in violation of the laws of war by transporting two surface-to-air missiles that were to be used against U.S. and allied forces in Afghanistan.

In order to find him guilty on that, the judge instructed jurors, they must find the missiles were intended for use against protected people -- civilians not involved in hostilities, soldiers removed from combat by illness or capture, or religious or medical personnel.

The prosecution presented no evidence any such people were targeted. In fact they argued the missiles were intended for use against U.S. forces, who had the only planes in the area.

They want the judge to revise the instructions and tell jurors that any attempt by an "unlawful enemy combatant" to kill a U.S. soldier in combat is a war crime.

The defense said that was not the law of war in effect when the alleged acts occurred, and Congress could not retroactively change it in the 2006 law.

If that was the law, defense attorney Joe McMillan argued, then the United States committed a war crime by providing missiles to mujahideen forces who used them against the Soviet military in Afghanistan in the 1990s.

Jury deliberations continued while the judge weighed the dispute. Prosecutors could withdraw their objection rather than risk a mistrial, or they could withdraw the portion of the conspiracy charge related to the missiles.

Hamdan faces only two charges but each is comprised of several specifications, which in turn list numerous specific acts. (Editing by Michael Christie and David Wiessler)

Source: Reuters North American News Service