WASHINGTON — A historic war crimes trial targeting Osama bin Laden's former driver is now set to start Monday at a remote site in Cuba, following a federal judge's ruling Thursday.
After a two-hour hearing, U.S. District Judge James Robertson declined Yemeni native Salim Hamdan's request to delay the trial, to be held at a heavily guarded U.S. military facility near Guantanamo Bay. Hamdan had challenged the trial, claiming he was being treated unconstitutionally.
"His claims of unlawfulness are all claims that should first be decided by the military commission and then raised on appeal," Robertson declared from the bench.
Robertson's ruling, unless reversed at the last minute by a potential appeal, sets the stage for a courtroom showdown that's been years in the making. Hamdan will be the first man formally tried by special military commission, established as a war-on-terror alternative to traditional civilian legal proceedings.
Now in his late 30s, Hamdan was seized by U.S. allied troops in Afghanistan in November 2001 and subsequently declared to be unlawful enemy combatant. Prosecutors have charged him with conspiracy and with providing material support to al Qaida terrorists.
Prosecutors claim he was a key insider who helped protect bin Laden before, during and after a series of spectacular al Qaida attacks on Western targets.
"It is the first contested war crimes trial since World War II," noted the Pentagon's chief prosecutor, Army Col. Lawrence Morris.
Twenty foreigners held at Guantanamo Bay now await their own military commission trials, and Morris said he would be bringing additional cases later this summer. He was speaking during preliminary proceedings held Thursday at Camp Justice, the site of the Guantanamo Bay military commission trials.
A clearly disappointed defense team said it would be ready to go to trial on Monday and expected Hamdan to attend despite an earlier threat to boycott.
Lawyers have long described the father of two daughters who has a fourth-grade education as an innocent, who merely worked for the al Qaida godfather for money, not ideology. He was paid $200 a week as bin Laden's driver, a job he held about five years.
"I think that the evidence will show that he's a salaried employee of Mr. bin Laden, not a member of al Qaida, not an employee of al Qaida," said Navy Lt. Cmdr. Brian Mizer, Hamdan's Pentagon-appointed defense counsel.
Thirteen hundred miles north, in a Washington, D.C., courtroom, Robertson was giving Morris' prosecution team the go-ahead to try Hamdan.
Hamdan's attorneys had wanted Robertson to postpone the military commission trial while a habeas corpus hearing examined Hamdan's legal status.
"The time to hear the challenge is now, not to wait until after the trial," said Hamdan's Washington-based attorney, Georgetown University Law Center professor Neal Katyal, adding, "A temporary pause is appropriate."
In 2004, Robertson had accepted Hamdan's challenge to the military commissions established by the Bush administration. Since then, though, Congress has explicitly authorized the commissions that will be comprised of at least five military officers. Robertson concluded that congressional action put the commissions on stronger footing.
"Hamdan is to face a military commission that was designed by Congress, acting according to guidelines set by the Supreme Court," Robertson noted approvingly.
Robertson, a former U.S. Navy officer appointed to the bench in 1994 by then-President Bill Clinton, added that "the court should be wary of disturbing (the) judgment" of the executive and legislative branches.
Katyal indicated he would decide by Friday whether to appeal Robertson's decision. Robertson stressed his decision will not bind other judges facing future habeas corpus petitions from Guantanamo Bay detainees, though it could prove influential.
"It may be that other judges will be persuaded by what the judge said today," noted Carl Tobias, a law professor at the University of Richmond, adding that "my sense is everything is geared up to go" at Guantanamo Bay.
Hamdan's scheduled trial will come about a month after the Supreme Court ruled that the Constitution permits Guantanamo Bay detainees to challenge their detention through habeas corpus petitions. In theory, these habeas corpus challenges could still take place after a trial.
The Pentagon will mobilize U.S. officers from assignments around the world this weekend to remote Guantanamo to serve as a jury pool for Hamdan's trial, with questioning of potential jurors expected to start on Monday.
(The Miami Herald's Carol Rosenberg reported from Guantanamo Bay, Cuba.)