Guantanamo prisoner gets military counsel

WASHINGTON, Dec. 18 (UPI) -- The Pentagon has assigned a defense attorney to the first of six prisoners at the Guantanamo Bay Naval Base detention center who are expected to face a special military trial.

Salim Ahmed Hamdan of Yemen will be represented by Navy Lt. Cmdr. Charles Swift if his case goes to trial. None of the six have yet been officially charged. However, the military tribunal rules require that a defense counsel be appointed sufficiently in advance to prepare an adequate defense.

Swift has not yet met with his client.

Also Thursday, the United States Court of Appeals for the 9th Circuit sharply criticized the legal limbo in which the Guatanamo detainees are being held.

"We simply cannot accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign included, on territory under the sole jurisdiction of the United States without permitting such prisoners recourse of any kind to any judicial forum or even access to counsel, regardless of the length or manner of their confinement."

Calling it "counter-intuitive" and "undemocratic," the court said Thursday the situation "is inconsistent with fundamental tenets of American jurisprudence" and raises "the gravest concerns under both American and international law."

U.S. President George W. Bush in July designated six of the some 600 prisoners held at Guantanamo Bay -- some since January 2002 -- to face the newly created tribunal. Who will face the military commission is a decision that has been left to Deputy Defense Secretary Paul Wolfowitz, a senior defense official told United Press International.

Bush selected the six based on alleged evidence they may have attended terrorist training camps, financed by al-Qaida; provided protection for Osama bin Laden; or attempted to recruit future terrorists.

Two are British, one is Australian and Hamdan is Yemeni. The other three have not yet been identified.

The commissions are intended for people believed to be members of al-Qaida or other militant organizations and believed to be guilty of such crimes as using human shields on the battlefield, torture and murder. The commissions could also apply to people alleged to have harbored terrorists. They were set up specifically to deal with alleged terrorists and those captured on the battlefield in Afghanistan.

Defense officials said no deadline has been set for either the decision or the proceedings. They declined to say where such a legal hearing would be held. And even if cleared of charges in the tribunal, the prisoners might still be held as enemy combatants.

Bush said this week the newly captured Saddam Hussein would probably not face a U.S. tribunal but instead would face some sort of Iraqi court.

In November, the U.S. government reached an agreement with Australia over another detainee, David Hicks, 27, who was captured in Afghanistan two years ago. The U.S. military promised Hicks would not be eligible for the death penalty and would serve out his sentence in Australia if he faces a military tribunal and is found guilty.

The Pentagon in May issued eight documents outlining the procedures for the controversial military commissions, popularly known as tribunals. The issuance of the instructions was the last procedural step required before commissions could be held.

The commissions, first announced in November 2001, have come under sharp criticism from human rights and legal organizations, which have argued variously that they are unconstitutional, illegal under international law and a dangerous precedent for U.S. troops who might be captured and tried in similar forums in other countries.

A chief concern is the lack of an independent appeal. Convictions are to be automatically referred to another military review board but at no time do defendants have the right to a trial in a court independent of the Defense Department.

The procedure will be tightly controlled. Under the military commission rules, the attorneys for both the government and the defendants will need the express permission of the Pentagon's general counsel or the defense secretary before they "communicate with news media."

The ban on talking to the media will be in effect after the proceeding as well. However, to assure critics the commissions are being conducted fairly, the officials said they will open them as much as possible to the news media.

In Hicks case, however, the Australian government has elicited a pledge that his trial would be open to the public and media.

Defense officials said the military commission instructions issued in May were adjusted from a draft version to make it clear that the burden of the proof of guilt is on the government rather than on the defendant, and they have added "torture" and "causing serious injury" to the list of 24 crimes that can be tried in the commission outlined in the February draft.

Other primary charges include "willful killing of protected persons," attacking civilians, misusing the white "surrender" flag, mutilation, taking hostages, degrading a dead body, rape and hijacking.

It also lists "aiding and abetting" and commanding or supervising the above crimes as charges that could be made against defendants.

The military commissions were created to "capitalize on the flexibility needed for the increased need to protect intelligence" that would not be provided by standard courts martial or trials in civilian courts, a military official said in May. The instructions also give the government more leeway in the laws of gathering evidence.

All of the crimes listed in the document have been derived from more than 100 existing international laws that concern the conduct of war and combat, a Pentagon official said in February.