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Two Guantanamo detainees face terror charges

04-06-2007

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- A Canadian who was 15 when he was captured in Afghanistan and a Yemeni accused of chauffeuring Osama bin Laden confront terrorism charges Monday under a reconfigured military tribunal system that critics say remains unconstitutional.

Omar Khadr, now 20, and Salim Ahmed Hamdan are among the first three Guantanamo detainees charged with war crimes under the new system. The third, Australian David Hicks, pleaded guilty in March to providing material support to al-Qaida and is serving out a nine-month sentence in Australia.

But even as the U.S. military revs up its prosecutions of Guantanamo detainees -- with the Pentagon saying it expects to eventually charge about 80 of the 380 prisoners held at this isolated base -- questions remain about the legitimacy of the process.

The Supreme Court, ruling in favor of a lawsuit brought by Hamdan, last June threw out a previous military tribunal system that was set up after the Sept. 11, 2001, attacks, calling it unconstitutional. Congress responded with new guidelines for war-crimes trials and President Bush signed them into law.

Hamdan's attorney, Navy Lt. Cmdr. Charles Swift, told The Associated Press that during the trial here he will challenge the new system, insisting it also is unconstitutional.

For one, the Military Commissions Act retroactively made certain acts such as conspiracy a crime, Swift said.

''This case raises significant questions'' about the separation of powers, Swift said. ''Congress cannot violate the Constitution to fix things ... but they are backdating anything and making it a crime.''

Hamdan is charged with conspiracy -- centered on his alleged membership in al-Qaida and purported role in plotting to attack civilians and civilian targets -- and with providing material support for terrorism. As part of the second charge, Hamdan is accused of transporting at least one SA-7 surface-to-air missile to shoot down U.S. and coalition military aircraft in Afghanistan in November 2001.

Hamdan's alleged war crimes were committed between February 1996 and November 2001, according to the charge sheet. Swift, in the interview, said some acts predate the start of the Bush administration's war against terrorism, saying it generally is considered to be Sept. 11, 2001.

But Army Lt. Col. William Britt, the chief prosecutor in the Hamdan case, told the AP there is no established date when hostilities commenced and that the 1993 bombing of the World Trade Center could be construed as the war's opening shot.

In an interview Sunday at Andrews Air Force Base outside Washington -- as prosecutors, defense attorneys, human rights monitors and journalists waited to board a plane to Guantanamo for the arraignments -- Britt said he expects a courtroom battle over the matters Swift raised.

''These are novel issues,'' Britt said. ''We're talking about new legislation, with the Military Commissions Act of 2006. We, the government, are looking forward to litigating (them).''

Khadr is charged with murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism and spying.

The son of an alleged al-Qaida financier, Khadr is accused of killing U.S. Army Sgt. Christopher Speer with a grenade during a firefight in Afghanistan on July 27, 2002.

Khadr's attorneys have decried the charges against him, saying he was a child soldier and should be rehabilitated, not imprisoned.

''The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes,'' the attorneys said in a joint statement in April.

Khadr fired his American attorneys last week, leaving only two Canadian lawyers in his corner. Because they are classified as foreign attorney consultants, they will not be at the defense table in the hilltop courthouse here.

Under the new trial rules, Khadr has the right to represent himself, said Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman.

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