A potential mistrial was avoided in the first Guantanamo trial today when the US military judge ruled it was too late to challenge his war crimes instructions to the jury deliberating the case of Osama bin Laden's driver.
But the judge acknowledged he may have erred and prosecutors sought clarification on the law that they said could affect plans to try up to 80 more Guantanamo prisoners.
Jurors began deliberating on Monday in the case of Yemeni prisoner Salim Hamdan, who is charged with conspiring with al-Qaeda and providing material support for terrorism while working as Bin Laden's driver in Afghanistan from 1996 until his capture November 2001.
Prosecutors said today the judge gave flawed instructions on what constitutes a war crime and asked him to call the jury in for revised instructions.
Defence lawyers said the instructions were correct and that if the judge found otherwise, a mistrial should be declared. They said changing the instructions after deliberations began would be extremely prejudicial to Hamdan, who could face life in prison if convicted.
"It may be that the instruction was erroneous but I guess you've waived the right to challenge it by not challenging it sooner," ruled the judge, Navy Captain Keith Allred.
Hamdan's trial is the first to be conducted by the tribunals the Bush administration created to prosecute non-US citizens on terrorism charges outside the civilian and military court system. The court itself is as much on trial as Hamdan.
Military defence lawyers and human rights monitors say the trials are rigged to convict because they allow hearsay and coerced testimony obtained without prisoners being warned that their confessions could be used against them.
"The verdict that matters most has already been delivered: this trial was a betrayal of American values and will rightly be seen as illegitimate by the rest of the world," said Ben Wizner, who is monitoring the trial for the American Civil Liberties Union.
Prosecutors agreed to withdraw their objections to Capt Allred's jury instructions rather than risk a mistrial. But they sought clarification on the circumstances under which killing or trying to kill US soldiers is considered a war crime since the issue will arise in other Guantanamo cases.
The legal debate over which acts are war crimes and which are just crimes has raged in the United States since the September 11th attacks by al-Qaeda in 2001.
The United States classifies Hamdan and the other 265 Guantanamo captives as "unlawful enemy combatants" who do not fight for a national army or wear uniforms or bear arms openly.
The conspiracy charge accuses Hamdan of agreeing with al-Qaeda to commit murder in violation of the laws of war by transporting two surface-to-air missiles that were to be used against US and allied forces in Afghanistan.
In order to find him guilty on that charge, the judge instructed jurors, they must find the missiles were intended for use against protected people - civilians not involved in hostilities, soldiers removed from combat by illness or capture, or religious or medical personnel.
The prosecution presented no evidence any such people were targeted. In fact they argued the missiles were intended for use against US forces, who had the only planes in the area. They wanted the judge to revise the instructions and tell jurors that any attempt by an "unlawful enemy combatant" to kill a US soldier in combat is a war crime.
The defence said that was not the law of war in effect when the alleged acts occurred, and Congress could not retroactively change it in the 2006 law that underpins the Guantanamo tribunals.
If that had been the law, defence attorney Joe McMillan argued, then the United States committed a war crime by providing missiles to mujahideen forces who used them against the Soviet military in Afghanistan in the 1990s.
Jury deliberations continued while the judge and lawyers debated the issue.
Reuters