New roadblocks delay tribunals at Guantánamo

GUANTÁNAMO BAY, Cuba: When military officials announced war crimes charges against six detainees for the Sept. 11 attacks two months ago, the move was part of an effort to accelerate the Bush administration's sluggish military commission system, which has yet to hold a single trial.

But the Sept. 11 case immediately hit a snag. Military defense lawyers were in short supply, and even now, two months later, not one of the six detainees has met his military lawyer.
The delay in getting lawyers to those detainees, which largely grew out of a struggle within the Pentagon over legal resources, is indicative of the confounding obstacles facing this latest effort to expedite the military tribunals.

Since fall, when charges had been lodged against just three detainees, military officials have charged 12 more terrorism suspects. Yet there is a growing consensus among lawyers inside and outside the military that few of those cases are likely to actually come to trial before the end of the Bush administration.

"Speed is going to be very, very difficult to accomplish here," said Stephen Saltzburg, a military law expert at George Washington University. "They may be overconfident that if they just push ahead, all the ducks will end up in a row. I don't think that's going to happen."

The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly.

In addition, just as the Pentagon is pushing to try cases in part to show the viability of the tribunal system, some civil liberties groups and defense lawyers are working to slow the pace, partly to keep the system from gaining legitimacy by eliciting testimony against terrorism suspects that could inflame Americans. They say they plan a dizzying array of challenges to try to prevent any significant number of what they call political trials.

They are particularly focused on the Sept. 11 case, which for more than six years has been expected to be the centerpiece of the Bush administration's military commission system.
"The government can be assured that this will not be a quick show trial," said Anthony Romero, executive director of the American Civil Liberties Union. "Not if we can help it."

The ACLU and the National Association of Criminal Defense Lawyers announced a plan last week to provide experienced defense lawyers for some detainees.

The standoff over the military lawyers for the Sept. 11 suspects grew out of a long-running dispute over legal resources at the Pentagon. The chief military defense lawyer for Guantánamo, Colonel Steven David, said in an interview that he lacked enough experienced lawyers and other staff members.

Guantánamo military defense lawyers have long said they are not given resources by the Pentagon to match the investigative capability of the military prosecution, which draws on the Federal Bureau of Investigation, Central Intelligence Agency and other agencies. Until a handful of new military lawyers were appointed this week to represent Sept. 11 defendants, the military defense office was sharply outnumbered, with 15 defense lawyers to battle 31 prosecutors.

But Brigadier General Thomas Hartmann, an official of the Office of Military Commissions at the Pentagon, argued that the defense office was staffed well enough to have begun to defend the Sept. 11 case the day it was announced.

In a recent interview, Hartmann, who has been pressing to move more quickly on the Guantánamo cases, made clear that he was impatient. "You have to get the train moving so you can get to a destination," he said. "And the train hadn't been moving."

But even with enough lawyers, David said, there were countless impediments to quick trials, including questions about how the tribunals are to deal with detainees' claims of torture. Lacking precedents and clear rules, he said, "there are issues within issues within issues."

At a news conference here on Wednesday, the deputy chief military prosecutor, Colonel Bruce Pagel, said that while the government wanted quick trials, the pace would largely be determined by military judges.

"There is just no predicting that," Pagel said. "There are just too many variables."
Each of the 14 cases now pending presents legal tangles. In one, the morass grew so thick that the judge scheduled pretrial proceedings after the date he had set for the trial, evidently realizing that there were too many unresolved issues to rush the case. In another, a detainee refused to leave his cell for an arraignment and had to be forcibly extracted.

On Wednesday, proceedings were delayed when a detainee complained that the tribunal translation was flawed. After that was resolved, the detainee, Ahmed Mohammed Ahmed Haza al Darbi, declared the proceeding political and refused to participate, adding, "History will record these trials as a scandal against you."

Prosecutors planned this week to arraign two suspects, one who they say was a Qaeda paymaster and the other, they say, a propaganda chief. But that rudimentary step is not to go off as they had hoped. The case of the propaganda chief had to be postponed because his military lawyer had recently left the defense office, taking that case back to its starting point.

By chance, the alleged paymaster and the alleged propaganda chief were the first ones identified for war crimes trials by the Pentagon back in 2004. Yet all Guantánamo cases were derailed in 2006 when the Supreme Court struck down the Bush administration's first war crimes system.

The first trial of a detainee under the new system is now scheduled for May 28. But defense lawyers for that defendant, Salim Ahmed Hamdan, who was a driver for Osama bin Laden, have filed nearly 30 legal motions, raising questions that included procedural issues and basic challenges to the Guantánamo system itself.

Andrea Prasow, one of Hamdan's lawyers, said her experience in a comparatively simple Guantánamo case showed the extraordinary complexities that seem certain to entangle all of the battles here.

It may be possible, Prasow said, for one or two cases to be tried by the fall. But, she said, "I don't see how it is remotely possible for the others to get under way."

Some of the defense requests in Hamdan's case show the kinds of issues that are tying prosecutors in knots. His lawyers have accused Pentagon officials of improperly influencing the prosecution by directing that charges be filed for political reasons and, the lawyers said, demanding "sexy" cases to attract public attention. They also claim that Hamdan is so psychologically damaged by the conditions under which he has been held that he is incapable of assisting his lawyers.

The Hamdan defense has worried prosecutors by winning the right to submit written questions to four detainees who were formerly held in secret CIA prisons.

The request to question prisoners like Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attack, brought strong objections from prosecutors who said it could be a national security threat.

When a military judge allowed very limited written questions, the prosecutors pleaded with him to reconsider. The judge stuck with his ruling.

But a major battle is expected if, as seems likely, Hamdan's defense follows that request with a demand that those former CIA detainees be called to testify in public.

J. Wells Dixon, a lawyer at the Center for Constitutional Rights, said the charges, which seek the death penalty against the six men charged with the 2001 attack, are so complex that defense teams in those cases will need months, if not years, to prepare. The center represented one of the six men in a case challenging his detention before the war crimes charges were filed.

"There is no possibility," Dixon said, "that these cases are going to proceed to trial any time soon."

Hartmann said trials in any system could be subject to delays. But he said he had told military prosecutors and court officials not to get distracted as problems cropped up.

"My guidance to people," he said, "is 'keep moving' and when the rocks start to fall on you, you move a little faster."

ABC Report: Bush’s ‘Principal’ Advisers OK’d Torture

ABC News reported tonight that President Bush’s most senior and trusted advisers met in “dozens of top-secret talks and meetings in the White House” beginning in 2002 to approve the use of “combined” interrogation techniques (the joint use of harsh interrogation techniques).

Those tactics included whether detainees “would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.”

Members of the National Security Council’s Principals Committee — Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft — approved the use of these techniques. “Sources said that at each discussion, all the Principals present approved.”

According to ABC’s report, Ashcroft indicated he was troubled by the meetings:
According to a top official, Ashcroft asked aloud after one meeting: “Why are we talking about this in the White House? History will not judge this kindly.

Military lawyers assigned to defend accused 9/11 ploitters

WASHINGTON -- The chief defense counsel for the war crimes court at Guantánamo Bay on Monday appointed four U.S. military officers to defend four alleged co-conspirators facing possible death-penalty charges in the 9/11 attacks.

But Army Reserves Col. Steve David said he had not yet formally assigned a lawyer to defend their alleged ringleader, reputed al Qaeda kingpin Khalid Sheik Mohammed.

The assignments had been seen as a key obstacle in the Pentagon's effort to move forward with its showcase Military Commissions prosecution -- a complex, six-captive capital case alleging they organized the Sept. 11, 2001 attacks.

CHARGES FILED

The Pentagon prosecutor swore out charges against the six on Feb. 11. Now a Bush administration appointee is deciding whether to go forward and whether to make execution the ultimate penalty -- if the men are convicted in the case that lists the names of 2,973 victims in the charges sheets.

''It's daunting,'' said Navy Reserves Cmdr. Suzanne Lachelier, a former San Diego federal public defender called to service and now assigned to defend Ramzi bin al Shibh.

She also, separately, had been assigned another commissions case -- to defend a Sudanese man who allegedly served as Osama bin Laden's bodyguard, driver and cook, Ibrahim al Qosi.

But the 9/11 case, she said, presented ``the ultimate challenge for a criminal defense attorney when a defendant is facing so much hatred from the general public -- and political backlash, to say the least.''

Bin al Shibh, who was captured on Sept. 11, 2002, is accused of organizing the German-based cell of the suicide squads that hijacked the commercial airplanes that struck the World Trade Center, Pentagon and a Pennsylvania field a year earlier.

KEY INTERMEDIARY

A citizen of Yemen, he has been described as a key intermediary between some of the hijackers and leaders of al Qaeda, in effect meaning he served as the 9/11 control officer. He also has been described as a key lieutenant to Mohammed.

Mohammed and the four other former CIA-held captives accused in the case have never seen attorneys -- military or civilian -- and are held in segregation as special ''high-value detainees'' at the remote prison camps in southeast Cuba.

They arrived there in September 2006 after years in secret U.S. custody overseas.

Now it will be up to the attorneys to get special intelligence clearances and meet with their clients to see whether they will cooperate with their U.S. military lawyers -- who are provided to them free of charge under the Military Commissions Act that created the war court in 2006.

David, in civilian life a judge in Boone County, Ind., near Indianapolis, made the appointments days after several civilian legal groups disclosed that they were organizing a defense fund and recruiting teams of top lawyers with death-penalty experience to help in the cases of Mohammed and the others accused at the war court.

The American Civil Liberties Union is spearheading the effort.

OTHER DEFENDANTS

Of the other former CIA-held detainees facing proposed capital charges:

• Walid bin Attash was assigned Navy Reserves Lt. Cmdr. James Hatcher, who has death penalty defense experience as a South Carolina federal public defender. Bin Attash, a Saudi-raised Yemeni, allegedly selected and trained some of the hijackers and allegedly scouted U.S. aircraft as early as 1999 in Malaysia as part of the plot.

• Ali Abd al Aziz Ali was assigned Navy Lt. Cmdr. Brian Mizer, who is already lead lawyer in the non-capital case against Osama bin Laden's former Afghanistan driver, Salim Hamdan -- whose trial is expected to start in June and last at most two weeks. Aziz Ali, known as Ammar al Baluchi, has been described as nephew of Khalid Sheik Mohammed who allegedly sent about $120,000 to the hijackers to cover, among other things, flight training at U.S. flight schools.

• Azzi Ali's assistant, Mustafa al Hawsawi, was assigned Army Reserves Maj. John Jackson as his defense counsel.

Only one of the six had already been assigned an attorney.

He is Mohammed al Qahtani, a Saudi who has been held by the military, not the CIA, but was subjected to a special course of interrogations approved by Defense Secretary Donald Rumsfeld.

It was not known whether, as of Monday, his lawyer, Army Lt. Col. Bryan Broyles had yet to meet with him.

SPECIAL ACCESS

The others need special access from the military to see their clients because the CIA has declared as classified the details of their interrogation and detention at so-called ''black sites'' overseas.

Lachelier said that David had assured the 9/11 defense counsels that they would get a second uniformed military defense counsel -- known as ''a second chair'' -- as well as an investigator and paralegal to work on the case.

In addition, the ACLU was expected to offer each a civilian co-counsel with outside legal resources to assist in the defense.

ACLU taps top legal talent to defend accused 9-11 plotters

The American Civil Liberties Union, which for years has scorned Pentagon military commissions as "kangaroo courts,'' announced Friday that it will try to provide top civilian defense attorneys for alleged terrorists facing trial at Guantanamo Bay, Cuba — including the alleged mastermind of the Sept. 11, 2001, terrorist attacks.

Former Attorney General Janet Reno is among top lawyers who've endorsed the $8.5 million effort, which will help coordinate and defray the expenses of civilian defense attorneys working on the terrorism cases. Under the military commissions scheme, the Pentagon won't reimburse volunteer civilian attorneys for their expenses.

ACLU Executive Director Anthony Romero said a major thrust of the effort will be to defend Khalid Sheik Mohammed, who military officials say has confessed to masterminding the 9-11 attacks and several other terrorist acts, including the beheading in Pakistan of Wall Street Journal correspondent Daniel Pearl.

The ACLU chose to focus on Mohammed's defense, Romero said, because he appears to be "the government's top priority in the prosecution. And whether or not they are able to convict Khalid Sheik Mohammed under these rules may well determine the fate of the almost 300 other men who are detained at Guantanamo.''

Mohammed was held in secret CIA custody until September 2006, and the CIA has admitted subjecting him to waterboarding while he was being questioned. Waterboarding is simulated drowning and is considered torture by many rights advocates.

Mohammed's case "is likely to raise the most significant issues of torture, hearsay evidence and access to counsel,'' Romero said.

At the Pentagon, a war court spokesman said the Office of Military Commissions hadn't received details about the ACLU program.

But Air Force Capt. Andre Kok noted that the law governing the trials entitles each Guantanamo defendant to a military defense lawyer and that volunteer civilian attorneys can also participate, without government reimbursement.

"The system allows for that,'' said Kok. "There's a mechanism set in place for them to become part of that pool of qualified attorneys.''

Romero said 11 lawyers have agreed to defend Guantanamo detainees facing death penalty charges under the program, which the ACLU has dubbed "The John Adams Project'' after the second president of the United States, who as an attorney was subjected to ridicule for defending British soldiers accused of killing colonists in the 1770 Boston Massacre.

Because the prisoners have been cast by the White House as the most reviled enemies of America, the ACLU and the National Association of Criminal Defense Lawyers issued endorsements of the effort from high-profile lawyers, including one from Reno, who served as President Clinton's attorney general for both of his terms and is the longest-serving attorney general in U.S. history.

"This is the time to demonstrate to the world that the United States need not abandon its principles,'' said Reno, "even as it seeks to ensure the safety of its citizens.''

The program described Friday is the result of a stealthy collaboration between the ACLU, the National Association of Criminal Defense Lawyers and uniformed U.S. military lawyers.

On Feb. 11, the Pentagon prosecutor filed proposed death-penalty charges against Mohammed and five other men as alleged co-conspirators in the 9-11 attacks.

Since then Army Reserves Col. Steve David, who is the commissions' chief defense counsel, has been trying to build teams of military attorneys qualified to handle the complicated death penalty cases from the mostly inexperienced military judge advocates general assigned to his office.

David, an Indiana judge in civilian life, has said that he wants to meet American Bar Association standards in the cases — meaning assigning 12 government lawyers, six investigators and six paralegals. At the same time, the defense JAGs have been attending ABA death-penalty training classes.

The military commissions' legal advisor, Brig. Gen. Thomas Hartmann, has said that the military commissions are not obliged to follow ABA standards.

Among those who've volunteered to defend the 9-11 conspirators are Idaho attorney David Nevin, whose previous cases include the successful defense of a Saudi charged with terrorism; New York attorney Joshua Dratel, who defended clients charged with the 1993 bombing of the World Trade Center prosecutions; and Denise LeBoeuf, a prominent New Orleans death penalty defense attorney.

Romero said a noted death-penalty lawyer has agreed to defend Mohammed before the military commission — if he's allowed to see Mohammed in private at the remote Guantanamo U.S. naval base and Mohammed agrees to accept his services.

Romero declined to name the attorney, but said that the lawyer had already applied for the high-level security clearance required to meet with Mohammed, who is held in seclusion at the base.

"The only way you can protect the system from being a complete sham is to make sure that they have a good defense,'' said Jennifer Daskal of Human Rights Watch, who also has been a commission observer. "And one way to do that is to have strong, zealous experienced lawyers.''

Romero said the ACLU decided to champion the defense effort in response to the recent acceleration of military commission prosecution efforts, which some have said are timed for the 2008 campaign season

Bomb parts at U.S. airport could have exploded: FBI

ORLANDO, Florida (Reuters) - The liquid packed in an Air Jamaica passenger's suitcase could have caused a disastrous explosion if it had ignited in mid-air, an FBI agent said on Thursday at a hearing for a man charged with trying to take bomb parts on a plane.

"If the appropriate heat source was introduced, absolutely" the nitromethane could have ignited, FBI agent Kelly Boaz testified at a hearing for Kevin Brown.

The 32-year-old Jamaican man was arrested at Orlando International Airport on Tuesday as he prepared to check his luggage for a flight to Montego Bay, Jamaica.

The FBI said the suitcase contained two galvanized pipes, end caps with holes drilled in them, two prescription bottles containing air gun pellets, a model rocket igniter, batteries, lighters, lighter fluid and two plastic vodka bottles of nitromethane, a liquid used as an industrial solvent and race car fuel.

Assistant U.S. Public Defender Clarence Counts argued that the liquid and other bomb components, which Boaz acknowledged were unassembled and packaged separately, did not endanger the flight.

"None of these items, your honor, were packaged in such a way that they would explode," Counts argued. "We did not have a bomb."

U.S. Magistrate Karla Spaulding sided with prosecutors and let stand the charge against Brown of attempting to put an explosive or incendiary device on an aircraft.

Brown was returned to the Seminole County Jail where he is being held without bond because Counts, without explanation, waived the scheduled bond hearing.

Afterward, Counts would only say he would reschedule a bond hearing for Brown "if circumstances change."

Brown was stopped at the airport by officers who said he acted suspiciously while preparing to check his bag. He variously told Boaz that he planned to explode a tree stump on his cousin's land in Jamaica, and that he wanted to show his friends the kind of improvised explosive device he had seen while serving in Iraq.

Newspaper reports said Brown was a U.S. Army veteran who had worked for a military contractor in Iraq last year and who had struggled with depression since the murder of his mother in 2005. His lawyer declined to comment on that.

Pentagon Releases DOJ Torture Memo

WASHINGTON - The Pentagon made public a now-defunct legal memo that approved the use of harsh interrogation techniques against terror suspects, saying that President Bush's wartime authority trumps any international ban on torture.

The Justice Department memo, dated March 14, 2003, outlines legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas - so long as they did not specifically intend to torture their captives.

Even so, the memo noted, the president's wartime power as commander in chief would not be limited by the U.N. treaties against torture.

"Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.

The memo also offered a defense in case any interrogator was charged with violating U.S. or international laws.

"Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability," the memo concluded.

The memo was rescinded in December 2003, a mere nine months after Yoo sent it to the Pentagon's top lawyer, William J. Haynes. Though its existence has been known for years, its release Tuesday marked the first time its contents in full have been made public.

Haynes, the Defense Department's longest-serving general counsel, resigned in late February to return to the private sector. He has been hotly criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the detention center in Guantanamo Bay, Cuba.

Yoo's memo became part of a debate among the Pentagon's civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether U.S. troops might face legal problems domestically or in international courts.

Also of concern was whether techniques used by U.S. interrogators might someday be used as justification for harsh treatment of Americans captured by opposing forces.

The Justice Department has opened an internal investigation into whether its top officials improperly authorized or reviewed the CIA's use of waterboarding, which simulates drowning, when interrogating terror suspects. It was unclear whether the Yoo memo, which focuses only on military interrogators, will be part of that inquiry.

The declassified memo was released as part of an American Civil Liberties Union lawsuit to force the Bush administration to turn over documents about the government's war on terror. The document also was turned over to lawmakers.

Justice Department spokesman Brian Roehrkasse said its release "represents an accommodation of Congress' oversight interest in the area of wartime interrogations."

Jameel Jaffer, director of the ACLU's national security project, said Yoo's legal reasoning puts "literally no limit at all to the kinds of interrogation methods that the president can authorize."

"The whole point of the memo is obviously to nullify every possible legal restraint on the president's wartime authority," Jaffer said. "The memo was meant to allow torture, and that's exactly what it did."

The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death.

The "definition of torture must be read as a sum of these component parts," the memo said.

The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and "frog crouching," which forces prisoners to crouch while standing on the tips of their toes.

"This standard permits some physical contact," the memo said. "Employing a shove or slap as part of an interrogation would not run afoul of this standard."

The memo concludes that foreign enemy combatants held overseas do not have defendants' rights or protections from cruel and unusual punishment that U.S. citizens have under the Constitution. It also says that Congress "cannot interfere with the president's exercise of his authority as commander in chief to control the conduct of operations during a war."

Senate Judiciary Committee Chairman Patrick Leahy said the memo "reflects the expansive view of executive power that has been the hallmark of this administration." He called for its release four months ago.

"It is no wonder that this memo ... could not withstand scrutiny and had to be withdrawn," said Leahy, D-Vt. "This memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world."

Gitmo Prisoner Charged in ’98 Embassy Attack

SAN JUAN, Puerto Rico - A Guantanamo detainee who allegedly helped plan the 1998 bombing of the U.S. Embassy in Tanzania that killed 11 people was charged Monday with war crimes that carry a possible death penalty.

Ahmed Kalfan Ghailani - who was held in secret CIA custody before being transferred in 2006 to the U.S. military prison in Cuba - also allegedly purchased and transported the explosives used in the attack and scouted the embassy with a suicide bomber.

Al-Qaida's twin suicide truck-bomb attacks on the U.S. Embassies in Tanzania and Kenya on Aug. 7, 1998, killed some 236 people, including 12 Americans, and injured more than 4,000. No Americans died in the attack in Dar Es Salaam, Tanzania.

U.S. Air Force Brig. Gen. Thomas Hartmann told a Washington news conference that Ghailani, a Tanzanian, faces charges that include murder, attacking civilians and terrorism. The attack on the embassy in Tanzania was not as devastating as the one in Kenya because an embassy water tanker apparently prevented the suicide bomber from penetrating the perimeter.

Ghailani, who was captured after a gunbattle in Gujrat in eastern Pakistan in July 2004, told a military panel at Guantanamo in March 2007 that he unwittingly delivered the explosives for the attack, didn't know about it beforehand and was sorry.

"It was without my knowledge what they were doing, but I helped them," he told the panel, according to a transcript released by the Pentagon. "So I apologize to the United States government for what I did. And I'm sorry for what happened to those families who lost, who lost their friends and their beloved ones."

A senior Pentagon legal official, Susan Crawford, must review and approve the filed charges before any legal proceedings can begin against Ghailani.

The U.S. has so far filed charges against 15 prisoners at Guantanamo and convicted one, Australian David Hicks, in a March 2007 plea bargain. Several detainees have appeared before the tribunal for arraignments or pretrial hearings. The first actual trials are expected to begin in late spring or early summer.

The U.S. now holds about 275 men at Guantanamo and military officials say they expect to file war crimes charges against about 80.

Lawyer: Gitmo trials pegged to '08 campaign

The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations, noting that the matter is under litigation.

The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the integrity of President Bush's war court.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England, a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.

''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics, saying ``the trial process will surface the facts in this case.''

''It has always been everybody's desire to move as swiftly and deliberately as possible to conduct military commissions,'' he added. ``But I can tell you emphatically that leadership has always been extraordinarily careful to guard against any unlawful command influence.''

The brief quotes England as a stipulation of fact and cites other examples of alleged political interference, which Mizer argues makes it impossible for Salim Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration leadership exercises ``unlawful command influence.''

Allred has set hearings at Guantánamo for April 30.

Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose lawyers challenged an earlier war court format to the U.S. Supreme Court, which struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in Afghanistan before and during the 9/11 attacks and allegedly working as his sometimes bodyguard. Even if he didn't help plot the suicide attacks, they argue, he is an al Qaeda co-conspirator.

As described the Hamdan brief, the England meeting came three weeks after President Bush disclosed in a live address that he had ordered the CIA to transfer ''high-value detainees'' from years of secret custody to Guantánamo for trial.

Bush also disclosed that the CIA used ''an alternative set of procedures'' to interrogate the men into confessing -- since revealed by the CIA director, Air Force Gen. Michael V. Hayden, to include waterboarding.

They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men against whom the Pentagon prosecutor swore out death-penalty charges in a complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11 attacks. The men have not been formally charged. Instead they are in the control of a White House appointee, Susan J. Crawford, whose title is the war court's convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would formally be charged 30 days after Crawford approves them.

That currently leaves a seven-month window during the 2008 election campaign.

An expert on military justice, attorney Eugene Fidell, said the Hamdan motion brings into sharp relief the problem of Pentagon appointees' supervisory relationship to the war court.

''It scrambles relationships that ought to be kept clear,'' said Fidell, president of the National Institute of Military Justice.

The quote attributed to England is ``enough that you'd want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.''

England is a two-term White House appointee. He joined the Bush administration in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary and then returned to the Pentagon, where he supervised the prison camps' administrative processes.

Crawford was a Republican attorney appointee in the Pentagon when Vice President Dick Cheney was defense secretary.

Hamdan's military lawyer argues that standard military justice has barriers that separate various functions, which he contends Pentagon appointees have crossed in the war court.

In April the defense team plans to call the former chief prosecutor, Air Force Col. Morris Davis, who recounted the England remark since submitting his resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon prosecutor until he resigned over what he called political interference by general counsel William J. Haynes.

Haynes has since quit.

They also want to call as a witness the deputy chief defense counsel, a retired Army lawyer named Michael Berrigan, who, according to the filing, was mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the prosecution.

In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which the defense team claims illustrates the muddied role of the legal advisor.

He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11, then said he would evaluate them independently and recommend to Crawford how to proceed.

The Mizer motion is also the latest attack on the legitimacy of war-court prosecutions by a variety of feisty uniformed defense attorneys, who have doggedly used civilian courts and courted public opinion against the process since the earliest days.

Mizer sent the brief directly to reporters for major news organizations, rather than leave it to the Office of Military Commissions to post it on a Pentagon website.

The Pentagon has been releasing motions for the public to read after they have been argued -- and ruled on by the judge.

With delays in other cases, the Hamdan case is now on track to be the first full-blown U.S. war-crimes tribunal since World War II.

The current time frame would put the trial before the Supreme Court rules on an overarching detainee rights case in June.