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Guantanamo Bay, Cuba — In an explosive start to the first military commission trial held by the United States since World War II, the military defense lawyer for alleged al-Qaida bodyguard Salim Ahmed Hamdan moved Tuesday to have five commission participants, including the panel’s presiding officer, removed from his client’s case. The proceeding — held in a tightly guarded courtroom here at the U.S. naval base at Guantanamo — included a formal reading of the charges, questioning of the five commission members by both prosecution and defense, and a closed session to discuss classified information. Hamdan, who has been held in solitary confinement since December, appeared nervous as he entered the courtroom at 10 a.m. EDT, but smiled when he saw his military defense lawyer, Navy Lt. Cmdr. Charles Swift. Tuesday’s preliminary hearing provided the first public glimpse not only of Hamdan, but also of the military officers chosen to decide his fate. Questioning of the commissioners revealed that two of the five panel members served in Afghanistan in support of U.S. operations close to the time when Hamdan was detained. Panel member Marine Corps Col. R. Thomas Bright coordinated the logistics of transporting detainees from Afghanistan to Guantanamo in early 2002. “Putting someone on this panel who was intimately involved in detention operations… does not give confidence to the accused or to the world that this process will be full and fair,” Swift said. Lead prosecutor Navy Cmdr. Scott Lang did not seek to disqualify any commission members. The day’s hearing began with approximately 45 minutes of procedural niceties. Hamdan, a slight man, wore a black-and-white checked blazer over a long white gown and brown sandals. He was not handcuffed or shackled and sat facing the panel, flanked by Swift and an Arabic translator. Two security officers sat behind him. At one point, Hamdan, who did not enter a formal plea, spoke up to indicate that he was unable to understand the government’s translator. The government alleges that Hamdan, 34, served as a personal driver and bodyguard for Osama bin Laden from 1996 until his capture in Afghanistan in November 2001. Prosecutors do not allege that Hamdan played a role in Sept. 11 and will not seek the death penalty in his case. Swift concedes in court filings that his client did work as a driver for bin Laden but says that Hamdan, a Yemeni national, was never a member of al-Qaida. Swift maintains that Hamdan was turned over to U.S. forces by the Northern Alliance for profit. The next hearing in Hamdan’s case is likely to occur in early November. On Wednesday, Australian detainee David Hicks, 29, faced the same five-member panel in a similar proceeding. Defense lawyer Swift began examination of the commission members with vigorous questioning of the panel’s presiding officer, Army Col. Peter Brownback III, a retired Army judge and the only panel member with legal training. After completing his inquiry, Swift moved to disqualify Brownback as presiding officer, claiming that he lacks the technical qualifications for the job because he is not officially licensed to practice law as an active member of any bar. Swift further complained that Brownback has expressed opinions about legal issues that the commission may decide, including the right of detainees to a speedy trial. Swift is also attempting to remove commission member Air Force Lt. Col. Timothy Toomey because he was involved in the capture and interrogation of hostile forces as an intelligence officer in Afghanistan from November 2001 to February 2002. He is also seeking the removal of Marine Corps Col. Jack Sparks Jr. because Sparks served as commanding officer to a reservist who died at the World Trade Center on Sept. 11, 2001. During questioning, Sparks said the personal tragedy would not influence his ability to be impartial. “I’ve been in the Marine Corps for 25 years,” Sparks said. “It’s not the first Marine, unfortunately, I’ve seen die.” Finally, Swift objected to alternate panel member Army Lt. Col. Curt Cooper, who said he felt “very angry” about the Sept. 11 terrorist attacks and had a “strong apprehension” about serving on the commission. The only panel member the defense did not seek to disqualify was Air Force Col. Christopher Bogdan, who served as the commander of a unit arming unmanned aircraft with Hellfire missiles during U.S. operations in Afghanistan. Swift’s challenges will now go to Washington, D.C., for a decision from the commission’s top official, retired Army Judge Advocate General John Altenburg Jr. Commission rules provide that Altenburg can dismiss members for good cause, but, unlike the rules for a military court-martial, the rules do not permit peremptory challenges for either side. “If I were trying a criminal case as a defense lawyer and a juror gave me some of the answers those members did, I would exercise at least one peremptory challenge,” said Miami defense lawyer Neal Sonnett during a press briefing Tuesday. Sonnett added, “The challenges have to go to the very authority that appointed the members in the first place. This is the problem any time you have a system that is so enclosed.” Sonnett is monitoring the proceedings at Guantanamo for the American Bar Association. Representatives from the American Civil Liberties Union, Amnesty International, Human Rights Watch and Human Rights First have also been afforded access. At one point, addressing the entire panel, Swift asked commission members to indicate whether they understood the concept of jurisdiction. After confused glances from the panel, Brownback interjected to explain the concept. Deborah Pearlstein, an observer from Human Rights First, called the episode “extraordinary.” “How can you have people serving as deciders of law and fact who don’t understand basic legal vocabulary?” Pearlstein remarked during the press briefing. “These are clearly good people who are trying to do the right thing. Unfortunately, they have been placed in a very poorly devised system.” Vanessa Blum is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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