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Bin Laden's driver's case back at war court

crosenberg@MiamiHerald.com

GUANTANAMO BAY NAVY BASE, Cuba -- A military judge Thursday postponed until March whether to hear a protest by Osama bin Laden's driver over his alleged solitary confinement at this offshore detention center.

Last week, lawyers for Salim Hamdan, 36, notified the Pentagon's military commissions that the Yemeni, who was captured in Afghanistan in November 2001, is so traumatized by the conditions of his confinement that he was at risk of being incapable of assisting in his defense.

He is held in a a single-occupancy cell in a steel and cement prison building, and his lawyers said his distress was exacerbated by the knowledge that other captives are held in communal bunkhouse-style detention in a more permissive compound.

Defense lawyers brought with them a psychiatrist who has spent 70 hours with the captive to offer expert testimony on his diminishing mental capacity, diagnosing his condition as post traumatic stress disorder.

Prison camp spokesmen say, broadly, that conditions for the 277 foreign men held here as ''enemy combatants'' are safe and humane and captives are given opportunities to exercise in outdoor recreations pens, usually in eyeshot and earshot of other detainees.

But Navy Capt. Keith Allred, the military judge hearing pretrial motions, said Hamdan's lawyers had not given the U.S. government time to respond formally. The judge postponed hearing the issue until the next pretrial hearing, scheduled for mid-March.

Hamdan, a father of two and a man with a fourth-grade education, is accused of conspiracy and providing material support for al Qaeda because he served as a Bin Laden driver and allegedly also as his bodyguard for years. If convicted, he could face life in prison.

Hamdan denies he's a war criminal.

He is due to face trial before U.S. military officers serving as jurors called commissions in late May or early June. He says he never joined al Qaeda and was working as bin Laden's driver for the money, a $200 monthly salary.

His lawyers earlier challenged President Bush's format for a war court to the U.S. Supreme Court and won their case, sending the White House back to Congress for a legal framework for the trials.

Now, they say, his conditions have left him distracted and at times angry and unwilling or incapable of working with his American defense attorneys -- a U.S. Navy officer assigned to the case by the Pentagon backed by four lawyers.

This week's hearing is on ''law motions,'' a series of challenges by defense lawyers on the contours of the case the Pentagon wants to bring to trial.

They argue, in one instance, that some of the government's charges are redundant and in another that the Pentagon can't charge, retroactively, for crimes covering the 9/11 attacks under a principal called ``ex post facto.''

Department of Justice lawyers responded for the Pentagon that Congress clearly created the Military Commissions Act of 2006 to, after the fact, prosecute the perpetrators of the Sept. 11 attacks on New York and the Pentagon as terrorists.

Also Thursday, military lawyers revealed that they so far have not been able to find Hamdan's 2002 prison camps records. The U.S. military brought him here in May 2002, after it closed the makeshift Camp X-Ray prison camp and established the more permanent Camp Delta prison complex on an empty field overlooking the Caribbean.

Defense lawyer Charles Swift protested that the government had not turned over his records under the commissions' discovery practice. Navy Lt. Cmdr. Timothy Stone explained, for the military, ``we're trying to find it.''

Allred expressed befuddlement at the circumstances. ''I don't know what you would ask us to do if we can't find it,'' he said.

Hamdan's lawyers are also seeking to interview the so-called ''high-value detainees,'' or alleged al Qaeda senior leadership held in a segregated prison camp here. That issue was likely to come up either late Thursday or Friday.

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