Lawyers asked a federal judge in Washington Thursday to stop the Pentagon from trying Osama bin Laden's driver by military commission at Guantánamo Bay until a civilian court rules whether the war court is legal.
The Pentagon is planning a July 21 trial at the U.S. Navy base in southeast Cuba for Salim Hamdan, 37, of Yemen, accused of providing material support for terrorism as the al Qaeda chieftain's $200-a-month driver in Afghanistan. He allegedly helped bin Laden elude U.S. capture. Conviction could carry life imprisonment.
The Pentagon plans to assemble a jury of military officers from around the world for the July 21 trial, in which prosecutors expect to call 22 witnesses.
But defense lawyers want U.S. District Judge James Robertson in Washington to first rule on whether the latest format for the first U.S. war crimes tribunal since World War II is legal, or constitutional.
''Forcing Hamdan to defend himself before an invalid military commission would frustrate his constitutional habeas right to challenge the legality of his detention,'' they wrote in a 50-page filing Thursday.
His defense team seeks a preliminary injunction ``to preserve Hamdan's right to vindicate his challenges to the legality of his military commission.''
Hamdan and his lawyers, who acknowledge he worked as bin Laden's driver in Afghanistan, argue he never waged war and never hurt anyone. Prosecutors accuse him of being an al Qaeda co-conspirator on Sept. 11, 2001, and in a long string of terror attacks because of his job.
In November 2004, Robertson halted an earlier Pentagon effort to try Hamdan by military commission, setting the stage for a U.S. Supreme Court showdown that found the earlier war court unconstitutional.
Now the judge, a former naval officer, is being asked to review the latest war court -- in light of the U.S. Supreme Court's June 12 ruling that Guantánamo detainees have the right to challenge their war-on-terror detention in civilian courts.
It was called Boumediene vs. Bush for an Algerian, Lakhdar Boumediene, who was seized by U.S. forces in Sarajevo, sent to Afghanistan, then Guantánamo.
The Bush administration opposes the delay.
''Our position is that the military commission proceedings are constitutional, the Supreme Court's Boumediene decision did nothing to affect military commission trials, and the commission trials should go forward without interruption,'' said Erik Ablin, a spokesman for the Department of Justice.
The same lawyers who brought Hamdan's so-called habeas corpus challenge last time have revived it in federal court: They are Georgetown law professor Neal Katyal, Seattle attorneys Harry Schneider Jr. and Joseph McMillan and retired Navy Lt. Cmdr. Charles Swift, Hamdan's first Pentagon-appointed defense attorney.
