>GUANTÁNAMO BAY NAVAL BASE, Cuba (AP) – Lawyers for Osama bin Laden’s former driver asked a U.S. military tribunal to dismiss charges against him Thursday, arguing that his alleged offenses weren’t established to be war crimes at the time they were committed.
The attorneys for Salim Ahmed Hamdan, a Yemeni, are trying to keep him from facing trial under a new tribunal system to prosecute terrorism suspects at Guantánamo Bay.
At a pretrial hearing, they argued that the charges against Hamdan – conspiracy and supporting terrorism – were not considered violations of the laws of war before Congress created the court in 2006.
“They did not intend in the Military Commissions Act to create new offenses,” said Joe McMillan, a civilian defense attorney.
His argument poses a fundamental challenge to the tribunals, since it would apply to most Guantánamo detainees.
But the judge, Navy Capt. Keith Allred, seemed skeptical, suggesting the establishment of the tribunals represented an evolution of the law. “This is what the president is saying, international law needs to evolve in response to terrorism,” he said.
Allred postponed discussion on a separate defense argument – that Hamdan has been so traumatized by confinement in an individual cell that he can’t focus on preparing his defense. As Hamdan sat in a flowing white robe, his lawyers asked for the proceedings to be halted until his condition improves.
Hamdan, who according to U.S. military records is about 37, was captured by Afghan troops while in a car carrying two surface-to-air missiles in November 2001 and turned over to U.S. forces. If convicted, he faces a maximum sentence of life in prison.
He was first charged more than three years ago. But his prosecution has been delayed by legal challenges, including one that prompted the Supreme Court in 2006 to strike down the original rules for the military tribunals.
In December, Allred denied prisoner-of-war status for Hamdan, rejecting defense arguments that he was beyond the jurisdiction of the Guantánamo tribunals under international law.
Hamdan’s attorneys argued Thursday that he is still entitled to the protections of the Fourth Geneva Convention, which applies to civilians who are arrested by an enemy occupying power and are not POWs.
