Last hurdles crossed for Hamdan trial Monday

07/18/2008 6:07 PM

07/18/2008 8:07 PM

Prosecutors who are preparing for a historic war-crimes trial next week cleared a final hurdle Friday as attorneys for defendant Salim Hamdan accepted a federal judge's decision not to interfere.

Hamdan's Washington-based attorneys said they wouldn't appeal U.S. District Judge James Robertson's decision rejecting a proposed habeas-corpus hearing that would have postponed the start of Hamdan's military commission trial. The trial is set to start Monday at a Guantánamo Bay facility.

At the same time, military prosecutors at Guantánamo agreed to comply with a military judge's directive that Hamdan's military attorney be allowed to interview the alleged mastermind of the 9/11 terrorist attacks before Monday to determine whether Khalid Sheik Mohammed has any testimony that might help Hamdan's case.

In Robertson's written opinion, released Friday, he spoke of the upcoming trial in historic terms.

"The eyes of the world are on Guantánamo Bay," he wrote. "Justice must be done there, and be seen to be done there, fairly and impartially."

A military commission jury composed of five or more military officers and overseen by a military judge will try Hamdan at a heavily guarded facility called Camp Justice.

Hamdan has acknowledged that he served as Osama bin Laden's driver, but he says he was only a paid employee, not a terrorist.

The Bush administration has charged Hamdan, a native of Yemen, with conspiracy and providing material support for terrorism. Preliminary proceedings have been under way, but Monday is set as the start of the trial.

Hamdan's civilian attorneys, relying on a Supreme Court ruling last month that allowed Guantánamo detainees to file habeas corpus petitions, had asked Robertson to delay the military commission trial so that Hamdan could file a habeas petition challenging U.S. claims that he's an unlawful enemy combatant as well as provisions of the military commission trials themselves. That process might have taken several months.

Robertson rejected that. "The disruption that would be caused by a last-minute delay of his trial would be significant," he wrote.

Robertson announced his decision from the bench Thursday after a two-hour hearing in which Justice Department lawyers urged him to let Hamdan's high-profile trial proceed on schedule. The judge released his 18-page written opinion Friday, which Hamdan's attorneys needed to read before they could decide about potential appeals.

Hamdan's Washington-based attorney, Georgetown University Law Center Professor Neal Katyal, declined to comment on the written opinion or the decision not to appeal.

A last-minute weekend appeal, to a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit, would have faced tough going. Like Robertson, the appellate judges would have heard Bush administration arguments that further delay would impede complicated trial plans that include flying in potential witnesses and commission members.

Robertson, moreover, may well have been Hamdan's most sympathetic judicial audience; the Clinton administration appointee supported Hamdan in a related challenge four years ago. An appellate panel would have been picked from a pool of judges who include some notably conservative Republican appointees.

Robertson wrote that he was loath to interfere with a military justice system that Congress had authorized. He stressed that Congress had made some "substantial" improvements to the military commissions that President Bush originally established, including permitting several appeal possibilities.

"(Federal civilian) judges do not have a monopoly on justice, or on constitutional learning," Robertson wrote.

Carol Rosenberg, of The Miami Herald, contributed to this report from Guantánamo.

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