Two Guantanamo captives face tribunals for second time

MIAMI (Reuters) - Osama bin Laden's driver will again face a U.S. war crimes tribunal at the Guantanamo naval base on Monday, nearly a year after his Supreme Court challenge succeeded in scrapping the first tribunal system.

A young Canadian captured in a firefight in Afghanistan at age 15 also is scheduled for a second arraignment on Monday in a courtroom at the remote U.S. naval base in eastern Cuba.

Both were arraigned in the original version of the tribunals, which were aborted by the court's ruling, and now they face additional charges. The potential penalty for the men is the same -- life imprisonment.

Salim Ahmed Hamdan, a Yemeni national, is accused of driving bin Laden, delivering ammunition and acting as a bin Laden's bodyguard but has denied being a member of al Qaeda.

Canadian Omar Khadr, now 20, is accused of killing a U.S. soldier with a grenade and injuring another in a battle at a suspected al Qaeda compound in Afghanistan.

Both are charged with conspiracy and providing material support for terrorism. Khadr also is charged with murder, attempted murder and spying, for allegedly conducting surveillance of U.S. military convoys in Afghanistan.

Hamdan was the first captive to appear in 2004 before the original war crimes tribunal created by U.S. President George W. Bush to try terrorism suspects at Guantanamo. He won a landmark ruling last year that struck them down as illegal.

Bush pushed through Congress a new version that he said was vital to "help keep the country safe."

Military defence lawyers said the new tribunals are as flawed as the old because they allow the use of evidence gathered through coercion and retroactively charge defendants for acts that were not illegal when they were committed.

The U.S. Supreme Court declined in April to hear Hamdan's and Khadr's challenge of the new system and said the trials must take place before they can appeal.

Prosecutors will ask on Monday to seal some of the evidence against Khadr. Last week Khadr fired his U.S. lawyers because he no longer trusted them and will ask that his Canadian civilian lawyers be allowed to defend him.

"You have a military judge, a military lawyer, a military jury all assessing Mr. Khadr's guilt and innocence for an action he's alleged to have acted against the military. Seems a bit one-sided to me," said one of the Canadian lawyers, Dennis Edney.

Critics call the tribunals an ad hoc legal system that follows neither U.S. military nor civilian law, nor the international laws of war established under various treaties. The United States has designated the 380 Guantanamo prisoners as "enemy combatants" undeserving of protections granted prisoners of war under the Geneva Conventions.

But if Khadr was a combatant, the laws of war do not allow him to be charged with killing a U.S. soldier in a battle during which he himself was shot by a U.S. soldier, said David Glazier, a former Navy officer and military law professor at Loyola Law School in Los Angeles.

"The U.S. believes the law of war allows us to hunt him down and kill him but if he does anything to defend himself then he's a murderer, essentially a deer," Glazier said. "All he can do is die if we shoot him."

In fact, the U.S. military patched up Khadr after shooting him, according to a soldier who survived the firefight.

But if Khadr and Hamdan are not combatants, they should be charged in the regular U.S. federal courts with providing material support to terrorism, Glazier said. Khadr also could be charged there with murdering a U.S. citizen overseas, he said.

"We're sort of trying to have it both ways," Glazier said.

Conspiracy has never been recognized as a war crime, nor have Hamdan's alleged actions, he said.

"Nobody ever suggested prosecuting Hitler's chauffeurs even though they had commission ranks as SS officers," Glazier said.