Yemeni detainee Salim Ahmed Hamdan is boycotting his trial, saying the military process is fundamentally unfair. The judge, Navy Capt. Keith Allred, hopes Hamdan will reconsider if given some opportunity to gather material for his own defense.
"I want to try to persuade Mr. Hamdan to come back to trial," Allred said. "I sense this might make him feel he's doing something in his defense, that he's involved in the process."
In a compromise that frustrated both the defense and prosecution, the judge said Hamdan can sign letters to four "high-value" detainees requesting their testimony that he was a low-level driver, not a hard-core terrorist. Any responses would be vetted for security leaks before the defense can see them, and the judge will ultimately decide what can be evidence at trial.
The judge is trying to keep Hamdan's case on track to be the first Pentagon terrorism prosecution at Guantanamo, scheduling trial to begin on June 2 with or without the detainee's participation.
But it still may be stalled despite his best efforts. Hamdan remained in his prison cell Wednesday and his defense attorneys, at Hamdan's request, also refused to participate a spectacle that puzzled the prosecutors.
"I'm a little confused, are they still representing Mr. Hamdan?" Army prosecutor Lt. Col. William Britt asked, raising a question nobody seemed to have an immediate answer for.
The defense asked for "two-way communication" between Hamdan and the "high-value" detainees who allegedly helped run al Qaeda before they were captured and brought to Guantanamo. Navy Lt. Cmdr. Brian Mizer hoped to personally reassure three of the detainees that Hamdan's questions aren't a government trick to get them to reveal details harmful to their own cases.
Prosecutors wanted no contact whatsoever. A Central Intelligence Agency affidavit warned that allowing the contacts could spread information about interrogation techniques used with the high-value detainees, and possibly reveal the location of Camp 7, a facility hidden inside Guantanamo that is reserved for detainees transferred out of secret CIA prisons.
"We are talking about the worst of the worst," said John Murphy, a civilian Justice Department prosecutor. "We are worried about the highly classified information and the manipulation that these detainees could undertake to thwart this commission's process."
Hamdan's attorneys were seeking a personal meeting with the high-value detainees because only Khalid Sheikh Mohammed, the confessed mastermind of the Sept. 11 attacks, responded to earlier requests to help Hamdan. That response is still being reviewed by U.S. intelligence agencies and has not been released to the defense, Mizer said.
Mizer said the national security argument against him meeting with the other high-level detainees is "bogus" since he already has the proper security clearance and already represents one of the detainees in question.
The judge said Hamdan's personal appeals will be limited to his signature on requests drafted by the government. But even this carefully circumscribed has the government worried that detainees might pass coded messages between them, or try to sabotage their cases by providing false testimony.
"Look at what they are charged with," Army Col. Lawrence Morris, the chief prosecutor for the Guantanamo tribunals, said after the hearing. "We have no interest in letting them communicate about anything but their cases."
Hamdan, 37, was captured at a roadblock in Afghanistan in November 2001, allegedly with two surface-to-air missiles in the car. He faces up to life in prison if the tribunal convicts him of conspiracy and supporting terrorism.
The military plans to prosecute about 80 of the roughly 275 men held at Guantanamo on suspicion of terrorism or links to al Qaeda or the Taliban. So far only one has been convicted David Hicks, who served a nine-month prison sentence in his native Australia under a plea deal. Hamdan is one of four alleged al Qaeda operatives saying they will boycott their trials.
Mizer expressed optimism that the detainees will help once they see Hamdan's signature. But even if all four high-value detainees respond, it seems unlikely to appease Hamdan, who has called the military tribunals fundamentally flawed and vowed not to return unless he can be tried in a civilian U.S. court.
Also moving forward is the case of Omar Khadr, a Canadian charged with killing a U.S. special forces soldier during a firefight in Afghanistan in 2002. A military judge on Wednesday denied a defense motion to dismiss his charges based on the fact that Khadr was only 15 when he allegedly threw the grenade.