GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The U.S. military has lost a year’s worth of records describing the Guantanamo interrogation and confinement of Osama bin Laden’s driver, a prosecutor said at the Yemeni captive’s war court hearing on Thursday.
Lawyers for the driver, Salim Ahmed Hamdan, asked for the records to support their argument that prolonged isolation and harassment at the Guantanamo prison have mentally impaired him and compromised his ability to aid in his defense on war crimes charges.
“All known records have been produced with the exception of the 2002 Gitmo records,” one of the prosecutors, Navy Lt. Cmdr. Timothy Stone, told the court. “They can’t find it.”
He said the military was still looking for the records kept at the remote U.S. naval base in southeast Cuba, which he referred to by its nickname.
President George W. Bush authorized the Guantanamo court to prosecute suspected al Qaeda members on grounds that the existing military and civilian courts were not adequate to prosecute terrorism charges against war captives who are not part of any national army.
Hamdan, who is in his late 30s, was the prisoner whose lawsuit prompted the U.S. Supreme Court to strike down the initial Guantanamo war crimes system. The charges against him were twice dismissed and then refiled and the military hopes to begin his trial in May.
Hamdan was captured in Afghanistan in November 2001 and faces life in prison if convicted on charges of conspiracy and providing material support for terrorism. He has said he never joined al Qaeda but worked as bin Laden’s driver in Afghanistan because he needed the $200 monthly salary.
Prosecutors say he was a trusted member of al Qaeda who helped bin Laden elude U.S. forces in Afghanistan and that he had two anti-aircraft rockets in his car when he was captured at a checkpoint near Kandahar.
At a pretrial hearing on Thursday, Hamdan’s lawyers asked the judge to drop the charges on grounds that their client’s acts were not recognized as war crimes when committed.
Legal authority to try non-U.S. captives in the Guantanamo tribunals rests on a 2006 law that made conspiracy and providing material support for terrorism war crimes, but Hamdan’s lawyers said it could not be retroactively applied.
A U.S. Justice Department lawyer argued that although no international law or treaty specifically listed conspiracy as a war crime, the Nuremberg war court set a precedent by prosecuting German SS members after World War Two. They were accused of membership in what had been declared a criminal organization, essentially the equivalent of conspiring with al Qaeda, said the attorney, Jordan Goldstein.
He also cited as precedent an 1865 legal opinion from the U.S. Civil War era that authorized summary execution for “banditti, jayhawkers” and others who join marauding bands.
Hamdan’s civilian lawyer, Joseph McMillan, said the law has since evolved and marauders may no longer be “hunted down like wolves” and summarily executed.
“There has been a lot that has occurred in the international arena since the American Civil War,” McMillan said.
The judge, Navy Capt. Keith Allred, asked, “This is what the president’s saying, international law needs to evolve to (counter) terrorism?”
Editing by Tom Brown and Vicki Allen