GUANTANAMO BAY, CUBA — At the war crimes court here, the prosecution never rests.
Government lawyers announced Tuesday that they had finished presenting their case against Salim Ahmed Hamdan, whom they have portrayed as a trusted cog in the Al Qaeda machinery. Hamdan was a driver for Osama bin Laden.
But Justice Department lawyer John Murphy told the court that he didn't want to rest until the military judge in the case decided whether he could call one more federal agent to the stand.
Pentagon counterintelligence agent Robert McFadden is expected to testify that in a May 17, 2003, interrogation, Hamdan said he had once sworn an oath of loyalty to Bin Laden. It is the only time in more than 40 known interrogations that Hamdan allegedly made that admission.
Defense lawyers learned from other evidence turned over by the prosecution that Hamdan was moved to solitary confinement and deprived of his "comfort items," reportedly even his Koran, on the eve of the interrogation. The Yemeni's lawyers want to review other detention records to see if Hamdan was subjected to sleep deprivation or psychological manipulation.
Navy Capt. Keith J. Allred, the military judge hearing the case, ordered the government to turn over the records weeks ago and announced Tuesday that because his order had been ignored, he would presume coercion was involved unless the prosecutors could convince him otherwise.
Allred had already excluded some evidence obtained in highly coercive circumstances, including statements made while Hamdan was in secret U.S. custody at Bagram Air Base and in the Pansher Valley in Afghanistan.
A hearing was set for this morning. The defense was to begin calling witnesses as soon as Allred decides whether McFadden, who is already at Guantanamo, can testify.
Hamdan's lawyers don't want to start their case until the prosecution rests because they might first move to dismiss the charges on grounds the government hasn't met the burden of proof, said Michael J. Berrigan, deputy chief defense lawyer for the tribunal.
Hamdan, 38, is charged with conspiracy and material support to terrorism, punishable by up to life in prison.
There's also a risk, with the prosecution's case still open, that the government could respond to defense testimony by calling other witnesses or raising issues beyond those already brought to the court's attention, Berrigan said.
