GUANTANAMO BAY NAVAL BASE, Cuba – When the Pentagon opens its first military commissions here Tuesday, two men captured in Afghanistan will become the first to face a war crimes court set up by the Bush administration after the Sept. 11 attacks.

One is David Hicks, 29, an Australian ranch hand and Christian convert to radical Islam who ran away from home and fought in Kosovo.

The other is Salim Hamdan, 34, a wiry Yemeni who worked as a driver and sometime bodyguard on Osama bin Laden’s Kandahar, Afghanistan, farm.

Each is charged with conspiracy as alleged al-Qaida members. But neither is directly linked to the 2001 terrorist attacks that spawned the new system of U.S. justice that is still a work in progress – criticized by international law experts, protested by military defense lawyers and making its debut through motions that will set the stage for eventual trials.

And neither defendant is cast as a top-level al-Qaida operative. Rather, the two are cast as functionaries, foot soldiers swept up like the hundreds of their fellow captives from 42 countries held in the controversial prison.

“There are really two purposes to hold military tribunals: One is legitimate, to hold people who have committed war crimes in the context of a military conflict,” said Georgetown law Professor David Cole, who has criticized what he perceives as the lack of due process in the U.S. experiment in holding and interrogating captives in a U.S.-controlled slice of Cuba.

“The other purpose, which is also traditional, but less legitimate, is to function as a show trial. In many respects that is what the administration is seeking to do with these cases,” Cole added. “It’s not a process to distinguish the innocent from the guilty. They have chosen to hand select a couple of cases in which they have strong evidence and have a kind of show trial to legitimize what they have been doing at Guantanamo.”

The Pentagon has paraded the media and Congress members around the prison camp in choreographed tours designed to show conditions as humane.

The International Red Cross was the only human rights group permitted access.

But, after photographs of American soldiers humiliating prisoners at Iraq’s Abu Ghraib prison sparked a scandal, the Pentagon decided to permit independent observers of the trials.

Delegates from the American Bar Association, the American Civil Liberties Union and Amnesty International, among others, have been given gallery seats at the opening sessions of the proceedings against Hicks and Hamdan.

Two other prisoners have likewise been charged with conspiracy: Yemeni Ali Hamza Bahlul and Sudanese Ibrahim al Qosi.

But delays are expected in those cases. Bahlul has yet to receive a military-approved translator, and Qosi’s defense lawyer has quit after reassignment as an Air Force judge.

A five-member panel of colonels will act as judge and jury at the eventual trials. Only the presiding officer, former Army judge Col. Peter Brownback, has legal experience.

Early objections from captives’ lawyers are expected to include a challenge to whether the United States is actually in a state of war, and whether evidence against the men can include confessions they may have given during interrogations, without benefit of a lawyer or warnings against self-incrimination.

The prison camp was initially established to extract intelligence from the captives, not to gather trial evidence.

“This is the first time we’ve done commissions in 60 years, and we’ll have to wait and see what happens, how it goes and how smoothly it goes,” retired Maj. Gen. John Altenburg Jr. said.

Although President Bush ultimately decides which suspects to charge, Defense Secretary Donald Rumsfeld has drafted Altenburg, who is a lawyer in civilian life, to supervise the commissions.

Critics, meanwhile, cast the commissions as a post-Sept. 11 invention that ignored some late 20th century protections provided by military law to reach back to World War I- and World War II-era tribunals and invent an unfair system at Guantanamo.

“What we’ve got now in Guantanamo is people are struggling how to figure out what the rules are,” said lawyer Kevin Barry, a retired U.S. Coast Guard judge who says the use of secret information, no civilian review and 11th-hour Defense Department improvisation will likely cast a shadow over the proceedings.

Critics also say the commissions raise larger red flags.

“They are limited to noncitizens at the moment,” said the ACLU’s Tim Edgar, who warned that the Bush administration’s decision to give the military broad powers to create “a parallel system of justice” could evolve into a system “that could be used against people picked up in London or the streets of the United States.”

Amnesty International has called the system a sham that should be dismantled. It has criticized Pentagon plans to shield information given in open court as “protected,” to use anonymous witnesses, hearsay testimony and a system that provides no independent civilian review of convictions that, in the future, could lead to death sentences.


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