Although the first full war crimes trial before a military tribunal at Guantanamo is not scheduled to begin until December, US officials acknowledge that the process is in turmoil and say that substantial changes will be made in coming weeks to restore credibility.
The officials said problems that surfaced at the military commission's opening hearings this summer provided new ammunition for domestic and foreign critics at the same time the process is facing legal challenges both inside the military and in federal court. The changes are likely to include altering the membership of the commission panel and improving a translation system that has proved inadequate.
The deputy chief judge of the Air Force, who is one of the defense lawyers, filed a motion last week urging the government to drop the process altogether and begin all over again using the military's venerable court-martial procedures. The judge, Lieutenant Colonel Sharon Shaffer, who is defending a Guantanamo prisoner charged with serving as a principal accountant for al-Qaeda, said in her motion that the military commission, which convened for the first time last month, was an archaic system dating to World War II and had flaws that could not be fixed.
Shaffer argued it would not provide a "full and fair trial" to which the defendants were entitled and which was needed to persuade the world that the US was acting in a just manner.
Shaffer, who has delayed her assignment as the No. 2 military judge in the Air Force while she defends Ahmed Mahmoud al-Qosi, her client at Guantanamo, said the military should switch to the system of courts-martial that was adopted in 1950 as a direct response to the unfair features in the military tribunal system.
One significant difference in a court-martial, she said, is that the judge and jury are separate. The military commission members serve as both judge and jury, and as the presiding officer is the only lawyer, the other members could defer to him on questions of law, giving him an unequal influence.
Her motion, which was filed with the military commission itself, will eventually be referred to authorities in the Pentagon. Her challenge mirrors a separate lawsuit already filed in Washington asking a federal judge to order the proceedings halted.
The litigation challenging the tribunals from both inside and outside the military comes after widespread dismay in the Pentagon over the first four days of preliminary hearings last month.
Both the defense and, more recently, the prosecution have argued that most of the military officers serving on the five-member panel have personal conflicts and are unsuitable to sit in judgment. Much of the attention focused on the panel's presiding officer, Colonel Peter Brownback III, who came out of retirement to serve on the panel.
Under questioning in a hearing, Brownback stated flatly that he had never told a group of lawyers that the detainees had any rights to a speedy trial, a statement that could have demonstrated that he did not have an open mind on the issue. When he was then told by a Navy lawyer that an audio recording of such a meeting existed, he was stunned and said he had not been aware the meeting was being taped.
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