Guantánamo Bay Judge Admits Possible Error

By WILLIAM GLABERSON
NYT

GUANTÁNAMO BAY, Cuba — As the military panel at the trial of a former driver for Osama bin Laden deliberated for a full day Tuesday without reaching a verdict, the presiding military judge said he might have given the members incorrect legal instructions about how the international law of war is to be applied here.

“I may well have instructed the members erroneously,” said the judge, Capt. Keith J. Allred of the Navy, during one of several sessions called outside the hearing of the six-member panel of senior military officers who are considering war-crimes charges against the driver, Salim Hamdan.

For a few hours Tuesday morning, defense lawyers suggested that they might use the judge’s admission to press for a mistrial, which could have disrupted the Pentagon’s effort to complete its first war-crimes trial at the United States naval base here. But by day’s end, it appeared that both sides had agreed to permit the panel members to continue deliberating under the original instructions Judge Allred read to them Monday morning.

One reason the government has given for prosecuting Guantánamo detainees as war criminals is that terrorist attacks by Al Qaeda violate the international rules of war. Those rules require, for example, that armed forces wear recognizable uniforms and carry firearms openly.

But prosecutors said Tuesday that the judge had defined “murder in violation of the law of war” incorrectly. He did not tell the panel that it would be a violation of the law of war for an unlawful combatant, like a member of Al Qaeda, to kill a member of an opposing military service during combat.

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