A US military judge agreed to decide whether Osama bin Laden's driver is a prisoner of war under the Geneva Conventions, a designation that could prevent the United States from trying him in the Guantanamo war crimes tribunals.
The judge, Navy Captain Keith Allred, said in a ruling yesterday that he would undertake a POW review for Yemeni prisoner Salim Ahmed Hamdan, who is charged in the Guantanamo war crimes tribunals with conspiracy and providing material support for terrorism.
If Hamdan is found to be a POW, he could be tried by court-martial, but not by the special military tribunals the United States set up at its naval base in Guantanamo Bay, Cuba, to try non-US citizens on terrorism charges.
Such a finding could cast further doubts on the widely criticised and still evolving Guantanamo court system that has yet to see a trial completed. The lone conviction at Guantanamo was the result of a negotiated guilty plea for an Australian now serving a nine-month prison term in his homeland.
A Pentagon spokesman for the tribunals, formally known as military commissions, said Allred would make the determination based on evidence and briefings presented at a hearing at Guantanamo earlier this month, rather than convening a separate hearing.
"That doesn't mean the judge couldn't come back and ask for more briefings," said the spokesman, Army Maj. Robert Gifford. "But we think he's got the evidence he wants in front of him."
Hamdan has acknowledged working as bin Laden's driver in Afghanistan for $200 a month but denies taking part in any terrorist attacks. US investigators said he drove bin Laden and one of his sons when they evacuated their compound near Kandahar in Afghanistan before the Sept. 11 attacks.
Hamdan was captured at a checkpoint near Kandahar on Nov. 24, 2001. Prosecutors say he was driving a car carrying two anti-aircraft rockets without the launching mechanisms.
Defence lawyers said he was a civilian driver and support worker who should be considered a prisoner of war and handled according to the Geneva Conventions outlining the treatment of war captives.
The Bush administration contends the Guantanamo prisoners, who have been held for years without trial and now number about 290, are not entitled to POW protections because they are not members of the regular army of any nation.
But the military judge said the Geneva Conventions require the United States to conduct a formal judicial review to determine the POW status of detainees it proposes to punish for their participation in hostilities.
The judge already was weighing the evidence to determine if Hamdan was an "unlawful enemy combatant" under the law passed by Congress last year to provide a legal basis for the Guantanamo tribunals.
Military prosecutors had argued that administrative hearings conducted at Guantanamo were an adequate substitution for POW reviews but the judge disagreed.
Gifford, the Pentagon spokesman, said that by reviewing both the POW status and the unlawful enemy combatant status, the judge was essentially covering all the bases.
"This will make his evaluation of Mr. Hamdan bulletproof if he finds in favour of the government," Gifford said.
The military is making its third attempt to prosecute Hamdan, who was first charged in 2004 but twice won dismissal of the charges.
The American Civil Liberties Union said the POW review was long overdue but still inadequate to address the flaws in the makeshift trial system at Guantanamo.
"It's like sticking a band-aid on a broken leg," said Hina Shamsi, an ACLU lawyer who attended Hamdan's hearing earlier this month. "That we are still stuck on such preliminary, yet fundamental, issues is a stark reminder of just how far astray we've travelled because of the Bush administration's policies."
Guard tower at Camp X-ray, Guantanamo Bay, Cuba.
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