GUANTANAMO BAY NAVAL BASE, Cuba A U.S. Army officer recalled the chaotic last days of the Taliban as he testified Thursday in a military court deciding whether a former driver for Osama bin Laden is beyond the reach of a special tribunal system created for suspected terrorists.
Army Maj. Hank Smith outlined the conditions under which the driver was captured, describing tense and dangerous days in November 2001 when his forces had come under repeated attack and were preparing for what they thought would be the last stand of the Taliban and al-Qaida in southern Afghanistan.
The battlefield conditions are key to this pretrial hearing. Prosecutors hope to prove Salim Ahmed Hamdan was an "unlawful enemy combatant" who can be tried by a military court under the U.S. Military Commissions Act.
The defense says Hamdan was just a low-level bin Laden employee, not a hard-core terrorist, and thus beyond the jurisdiction of the U.S. military tribunals.
Under questioning by the prosecutor, Smith suggested that the Taliban fighters could not be legally categorized as soldiers who are protected by the Geneva Conventions as prisoners of war in part because they lacked uniforms.
"I would not say they had distinctive insignia," he testified.
The Army major was the first witness to testify in a tribunal since Congress and the Bush administration last year drafted new rules for military trials, known as commissions, after the U.S. Supreme Court tossed out the old version.
Prosecutors prepared about five witnesses to back their case that Hamdan should be charged as an unlawful enemy combatant. The defense lined up an expert in Middle Eastern affairs to support its argument that Hamdan could have been a driver for bin Laden without being a hardcore al-Qaida member who knew about terrorist attacks.
But a military judge on Wednesday rejected a defense request to talk to the alleged mastermind of the Sept. 11 attacks and two other so-called "high value" detainees who are being held at the isolated Navy base.
Civilian defense attorney Harry Schneider told reporters that he had hoped that Khalid Sheikh Mohammed and the two other high-value detainees could establish that Hamdan was not a terrorist, and was a minor al-Qaida figure at best.
"People who were actively involved unquestionably are in a much better position than me or you or anyone else in this room ... to say what Mr. Hamdan was," Schneider said.
In denying the request at least for now, the judge in the case, Navy Capt. Keith Allred, said more time would be needed to overcome the "security obstacles" posed by meeting with men accused of some of the world's most notorious terrorist attacks.
If the defense can persuade a judge to declare Hamdan a prisoner of war, he would be subject to the American military court martial system, which detainee advocates say offers more legal protections.
Hamdan has been charged with conspiracy and supporting terrorism and faces up to life in prison if convicted. He came to court in a flowing white robe and a gray-checkered sports coat, and smiled when technical difficulties with a translation system delayed the proceedings.
Hamdan has been in custody nearly six years and was first charged more than three years ago. But his prosecution has been delayed by legal challenges, including one he filed that went to the Supreme Court and resulted in the striking down last year of the original rules for military tribunals.
The Supreme Court on Wednesday debated for the third time since 2004 the rights of foreign terrorism suspects held at Guantanamo Bay. Even if the court sides with the detainees again, it is unlikely that they will see much of a difference by the time the Bush presidency ends in less than 14 months.
The U.S. holds about 305 prisoners on suspicion of terrorism or links to al-Qaida and the Taliban at Guantanamo and plans to prosecute about 80, including the alleged architect of the Sept. 11 attacks. So far, only three detainees have been formally charged and one, Australian David Hicks, was convicted in a plea bargain and sent home.