GUANTANAMO BAY NAVAL BASE, Cuba – Four Guantanamo (search) prisoners will be the first suspected terrorists arraigned in preliminary hearings this week before their cases go to military commissions, or trials, in an unprecedented judicial process that foreign governments, lawyers and human rights groups have criticized.
While the maximum sentence the men face is life in prison, the military commissions — the first in nearly 60 years since the United States tried German saboteurs — will have the power to sentence others to death, and there is no independent appeal process. None of the four are accused of killing Americans.
One man allegedly worked as an Al Qaeda (search) accountant. Another, a poet, is accused of crafting terrorist propaganda. A third drove and protected Usama bin Laden (search). A fourth, a baby-faced Australian, fought with Afghanistan's ousted Taliban (search).
Significant challenges already exist ahead of the first hearing scheduled for Tuesday.
One defense attorney hasn't seen his client in four months because of a government delay in giving clearance to a translator. Another defense lawyer has withdrawn from the case after accepting another job, leaving her client with no representation. Others say the broad restrictions, which include the military's right to monitor conversations between attorneys and clients, will make it nearly impossible to win their cases.
"I've never gone into a hearing with so little information," said Lt. Cmdr. Charlie Swift, a military defense attorney representing Salim Ahmed Hamdan.
Hamdan, a 34-year-old Yemeni driver for bin Laden, is scheduled to be arraigned first on Tuesday on a charge of conspiracy to commit war crimes for his ties to Al Qaeda.
Two of the other men face similar Al Qaeda conspiracy charges: Ali Hamza Ahmad Sulayman al Bahlul, 33, also of Yemen; and Ibrahim Ahmed Mahmoud al Qosi, born in 1960, of Sudan.
The fourth defendant is David Hicks, 29, of Australia, who faces the broadest set of charges — conspiracy to commit war crimes as well as aiding the enemy, and attempted murder for allegedly firing at U.S. or coalition forces in Afghanistan before his capture.
When many of the prisoners arrived at this U.S. outpost in eastern Cuba in January 2002, the Bush administration was quick to declare them guilty: "These are killers," President Bush said. Attorney General John Ashcroft described them as "uniquely dangerous."
After comments like those, critics doubt the detainees can receive a fair trial since top U.S. officials also have the power to choose commission members.
"If the U.S. attorney would be able to handpick each jury, everyone in the world would say that is clearly not fair," said Kevin Barry, a retired Coast Guard captain and director of the National Institute of Military Justice.
The Bush administration defends the process.
"I think the commissions will be viewed with great interest, and over time, people will realize how full and fair they truly are," said Lt. Cmdr. Susan McGarvey, a government spokeswoman and one of the public affairs officers for the hearings.
One key issue the commission authorities expect to come up: the use of information against the men that could have come from interrogations at Guantanamo and other overseas outposts. Several detainees released from Guantanamo Bay claim to have made false confessions after interrogations, which can last anywhere from two to 15 hours.
Only four of Guantanamo detainees have been charged so far, while 11 others' charges are pending approval. Most of the men in the camp have been refused access to attorneys.
All are considered enemy combatants, a classification that unlike prisoners of war, allots the men fewer protections under the Geneva Conventions. Military commissions are reserved for foreign-born captives and have lower standards for prosecution than American civilian courts.
At this week's open preliminary hearings, expected to last four days, charges will be read to the men, who can enter pleas, and their lawyers can make motions. It could be months before the military commissions, or trials, begin.
At least two detainees could opt to have the hearings postponed.
Navy Lt. Cmdr. Philip Sundel, an attorney for al Bahlul of Yemen, who is to appear Thursday, said because of government red tape, he hasn't been able to meet with his client in four months and isn't prepared for the preliminary hearing.
Al Bahlul, whose family says he's a peace-loving poet, is accused of being an Al Qaeda propagandist and one of bin Laden's personal bodyguards.
Sundel said that although the commission is supposed to be responsible for getting translators he was told to find his own. Then the government held up her clearance so he had to find another, who didn't work out. A week ago, he won clearance for an interim translator.
"I've operated in courts martial, federal courts and one international tribunal, and this is the only hearing I've entered with not even a clue as to what was going to take place," he said.
Air Force Lt. Col. Sharon Shaffer, a lawyer for al-Qosi of Sudan who is to appear on Friday, has asked to withdraw from the case after accepting a job as a deputy chief trial judge for the Air Force, said Air Force Col. Will Gunn, chief defense counsel.
A new attorney has yet to be found for al-Qosi, who's accused of worked as Al Qaeda's chief accountant, paymaster and supply chief. Shaffer said she will attend the hearing Friday but declined further comment until she addresses the court.
The prisoner who faces the most charges is Hicks, the Australian cowboy and kangaroo skinner who converted to Islam, fought in Kosovo with fellow Muslims, joined Muslim fighters in India-held Kashmir and in 2001 joined the Taliban in Afghanistan.
Scheduled for a hearing Wednesday, Hicks is accused of attending Al Qaeda training camps in Afghanistan and learning advanced surveillance to use on U.S. and British embassies in Kabul.
The pale Australian was one of the first to arrive at this bleak outpost as pictures of shackled and blindfolded prisoners kneeling on the ground before they were led into open-air, chain link cells, prompted waves of criticism around the world.
The prison camp — which no longer uses the outdoor cells of Camp X-ray and is comprised of several prison wings ranging from medium to high security — now holds some 585 men accused of links to either the Taliban or to the Al Qaeda network headed by bin Laden, considered the mastermind of the Sept. 11, 2001, terror attacks in the United States.
The Geneva-based International Committee of the Red Cross has been the only independent group to have access to the prisoners, and in October issued a rare public rebuke that called the prisoners' prolonged detentions "worrying."
During the hearings, observers will be allowed to watch, including more than 60 journalists and representatives from several groups such as Amnesty International, the American Civil Liberties Union, Human Rights Watch and the American Bar Association.
The ICRC, which periodically sends delegations to Guantanamo to assess conditions and detainees, plans to send an observer to the hearings, said Amanda Williamson, an ICRC spokeswoman in Washington. A final decision, however, was still pending in Geneva.
John D. Altenburg Jr., a retired Army general, is the appointing authority for the commission panel members, whose names journalists are prohibited from releasing.
Altenburg has the right to close proceedings at any point, including when the U.S. military deems the hearings are dealing with classified or protected information.
Although in charge of the proceedings, he is not expected to be in attendance.
Instead, Army Col. Peter E. Brownback will be the presiding officer, a senior member of the five-member commission panel that will act as judge and jury.