GUANTANAMO BAY NAVY BASE, Cuba -- Defense lawyers seized upon a debate inside the Obama administration Wednesday to seek dismissal of a charge against an alleged al Qaeda foot soldier accused of plotting attacks against U.S. coalition troops in Afghanistan.

Mohammed Kamin, 30, boycotted his hearing while his military defense attorneys sought to turn a senior Justice Department lawyer's recent Senate testimony on how to repair military commissions to Kamin's advantage.

`WASTE OF TIME'

''They cannot ethically proceed on this charge in this forum,'' said Navy Lt. Rich Federico, Kamin's Pentagon appointed attorney. ``It's appalling. It's just a waste of everyone's time.''

The judge did not rule on the spot. The case prosecutor, Navy Lt. Rachel Trest, argued for the status quo while the new administration rewrites commissions rules, she said, to favor alleged terrorists.

At issue was testimony by Assistant Attorney General David Kris of the National Security Division -- that Justice Department found providing material support for terror would not be an appeal-proof war crime.

It is a crime in federal court, but was defined for the first time as a violation of the laws of war in the 2006 Military Commissions Act.

This is what Kris said in formal written testimony July 7: ``Our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system's legitimacy.''

Pentagon prosecutors argue they are proceeding with pre-trial hearings at military commissions under the current manual. Navy Capt. John Murphy, the chief war crimes prosecutor and a former Justice Department attorney, would not be drawn into a discussion of what would happen were the category of crime to be eliminated.

Kamin, brought to Guantánamo in 2004, allegedly got al Qaeda training after U.S. troops invaded Afghanistan and then set up missiles and mines against coalition forces, which never exploded.

EVOLVING RULES

Air Force Col. Thomas Cumbie, Kamin's judge, agreed with defense lawyers that the rules of court were still evolving.

But he also noted that the category of crime still existed and ``it's not a done deal until it's a done deal.''

A military jury last year convicted Osama bin Laden's Yemeni driver, Salim Hamdan, on charges of providing material support for terror and acquitted him of conspiracy charges.

Murphy prosecuted the case and sought lengthy imprisonment.

Jurors sentenced him to time served plus five and a half months.

Hamdan civilian defense attorney Harry Schneider of Perkins Coie said Wednesday afternoon from Seattle that the debate appeared to enhance a Hamdan clemency bid already on file with the Pentagon.

''We've always been of the view that [material support] was not a war crime and the conviction should not stand,'' said Schneider, who has been appealing Hamdan's conviction although his client returned to his homeland a free man last year.

Were the Obama administration to withdraw material support as a military commissions crime, he added, ``Salim would be exonerated in the sense that he would never have been convicted of anything.''

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