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Possibility of mistrial arises at Guantánamo
GUANTÁNAMO BAY NAVAL BASE, Cuba: The possibility of a mistrial emerged Tuesday in the United States's first war crimes trial at Guantánamo, 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 the Yemeni prisoner Salim Hamdan.

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

Defense lawyers said that 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, Captain Keith Allred of the U.S. Navy. He told the lawyers to consult legal scholars and journals and try to discern Congress's intent in the 2006 law underpinning the Guantánamo tribunals. "Maybe we got it wrong this time," Allred said.

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 that was 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.
Only if you believe that foreigners who attack the United States should be protected under American law ...
The complicated issue in dispute on 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 Guantánamo captives as "unlawful enemy combatants" who do not fight for a national army or wear uniforms or bear arms openly.
Not only is that true, but it's a direct application of the Geneva Convention protocols.
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. To find him guilty on that, the judge instructed jurors, they must find that 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 that any such people were targeted. In fact, they argued that 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 that was not the law of war in effect when the alleged acts occurred, and that Congress could not retroactively change it in the 2006 law. If that was the law, one defense attorney, Joe McMillan, argued, then the United States committed a war crime by providing missiles to mujahedeen forces who used them against the Soviet military in Afghanistan in the 1990s.
Posted by: Steve White 2008-08-06
http://www.rantburg.com/poparticle.php?ID=246229