GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Lawyers for Osama bin Laden’s former $200-a-month driver lost a bid on Wednesday to call September 11 mastermind Khalid Sheikh Mohammed to testify about whether their client is an al Qaeda member subject to trial by U.S. military tribunals.
A military judge, Navy Capt. Keith Allred, rejected the effort to gain access to Mohammed and other suspected senior members of al Qaeda at the Guantanamo Bay detention center. He said the defense had waited too long to request them, given the tight security measures under which they are being held.
The motion came in a hearing to determine whether Salim Ahmed Hamdan is an unlawful enemy combatant and can be tried by U.S. military tribunals established by Congress in 2006 to hold war crimes trials for people captured in President George W. Bush’s war on terrorism.
“You should have started the process of getting the witnesses much earlier,” Allred said in rejecting most of the 10 requests in a motion the judge said was filed on Tuesday evening.
The defense had also sought access to Ramzi Binalshibh, who is suspected of having been involved in the September 11 plotting, and Abu Farj al Libi, a suspected al Qaeda military commander. The judge did grant the defense access to a detainee from Yemen Hamdan’s lawyers said had known Hamdan.
“(He) knew our client, knew he was only a driver, was aware there were many around bin Laden who were not members of al Qaeda,” defense lawyer Charles Swift told the judge.
The defense also requested a hearing on whether Hamdan should be considered a prisoner of war under the Geneva Conventions, which would give him the right to trial by a military court-martial rather than the new military commissions process.
Allred agreed to hear testimony on the issue this week but said he would not make a decision until later on whether Hamdan should be considered for prisoner-of-war status.
Hamdan, who arrived in court wearing white robes, a white headdress and a gray jacket, nodded and smiled broadly during the opening moments of the hearing, when a technical glitch with the translation headphones forced the judge to call an immediate recess.
Hamdan, who was born in Hadramout, Yemen, around 1970, is accused of acting as bin Laden’s driver and bodyguard and transporting weapons for al Qaeda. He has acknowledged working for bin Laden in Afghanistan for $200 a month but denies he was a member of al Qaeda and has said he never took part in any terrorist attacks.
The rulings on Wednesday were part of the military’s third attempt to prosecute Hamdan on war crimes charges and came six months after Allred dropped the previous charges against him.
Allred ruled in June that Hamdan, who is about 37, had only been declared an enemy combatant and said he had no authority to decide whether the defendant was a lawful or unlawful combatant under the measure passed by Congress last year to provide a legal basis for the war crimes trials, formally known as military commissions.
A U.S. Court of Military Commission Review ruled in September that tribunal judges could hear evidence and decide whether the prisoners were unlawful enemy combatants. That led to the latest attempt to prosecute Hamdan and a hearing to determine his status.
Only unlawful enemy combatants who are not U.S. citizens can be tried by a military commission, the measure states. Lawful combatants, such as uniformed soldiers from countries at war with the United States, would have to be tried by court-martial or handled by other means, officials said.
Hamdan initially was charged in 2004 but challenged his detention in a case that prompted the Supreme Court to rule in 2006 that Bush lacked authority to set up an alternative court system at Guantanamo.
That decision prompted Congress to pass the military commissions act enabling the military to try the Guantanamo detainees.
Editing by Jane Sutton and Peter Cooney