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By Jerry Markon
Washington Post Staff Writer
Tuesday, July 22, 2008; A01

GUANTANAMO BAY, Cuba, July 21 -- A military judge ruled Monday evening that prosecutors in the military trial of Osama bin Laden's former driver cannot use as evidence some of the statements the defendant gave to interrogators because the information was obtained under "highly coercive" conditions.

As the first U.S. military commission since World War II got underway, Navy Capt. Keith Allred threw out statements made by Salim Ahmed Hamdan after he was captured in Afghanistan in late 2001, including detailed descriptions of the al-Qaeda leader's whereabouts. Hamdan's allegedly incriminating admissions are a key part of the prosecution's case against him on charges of a terrorism conspiracy.

The judge declined to suppress admissions made by Hamdan after he arrived at the U.S. detention facility here, many of which elaborated on his earlier statements. But Allred said that to use them, prosecutors must produce Hamdan's interrogators to explain the conditions under which the interviews took place. Some of those interrogators testified in pretrial hearings last week.

Allred's willingness to throw out evidence in a proceeding against an accused al-Qaeda member could bode poorly for cases the government expects to bring against planners of the Sept. 11, 2001 attacks, some of whom were subject to far more coercive conditions. Khalid Sheik Mohammed, self-confessed mastermind of those attacks, and other accused Sept. 11 conspirators are scheduled to be tried after Hamdan.

Prosecutors said on Monday night they will proceed against Hamdan, and would not address how the ruling might affect future military commission trials. Opening arguments are scheduled for Tuesday.

"We accept the ruling, and we'll go to trial in the morning," said Col. Lawrence Morris, the military commissions' chief prosecutor. "You don't always get everything you're interested in, but it does not reduce my confidence in our ability to fully depict Mr. Hamdan's criminality."

Defense lawyers could not be reached for comment Monday night.

The judge's ruling came late in the day, after a six-member jury of military officers was chosen to hear the terrorism conspiracy case against Hamdan.

In a trial whose rules give considerable latitude to the prosecution, the jurors include an Army colonel who said she was "obviously upset" that her college roommate was in the Pentagon during the Sept. 11 attacks; an Army lieutenant colonel who is an expert on radical Islam; and a Marine lieutenant colonel who said he had read that Hamdan was "Osama bin Laden's driver."

Sitting near a U.S. flag and beneath the insignias of the armed forces, the potential jurors were questioned by skeptical defense attorneys and supportive prosecutors. They asserted that they could be fair in judging Hamdan, who is charged with ferrying weapons for al-Qaeda as part of a terrorism conspiracy. Hamdan formally pleaded not guilty Monday.

The sole alternate juror, an Army major, acknowledged on a questionnaire that knowing a defendant was detained at the U.S. military prison here could affect her judgment.

"There is a suspicion they might be guilty. That's why they're here," she added in court.

Monday's screening of 13 potential jurors, a process known as voir dire, highlighted the challenge of finding objective jurors from among a U.S. military that is engaged in a global battle against terrorism.

"The bias is inherent in the system," said Louis Fisher, who wrote a book about the 1942 military trial of eight Nazi saboteurs, all of whom were convicted and six of whom were executed. President Franklin D. Roosevelt selected the prosecutors, defense lawyers and the generals who served as jurors for the proceeding at Justice Department headquarters in Washington .

"It's almost impossible to think of an unbiased military trial," Fisher said. "The colleagues of these jurors are fighting and being killed by terrorists."

Morris, chief prosecutor for the military commission system that President Bush established after the attacks as an alternative to civilian courts, said he is confident that the Hamdan jurors will be fair. The panel also includes another Army lieutenant colonel, a Navy captain and an Air Force colonel.

"The question would be whether because of the fact that they're military officers, they sit on a different plane where they are less open-minded than a cross section of American citizens," Morris said. "I believe it's quite to the contrary."

The trial of Hamdan, a Yemeni who faces life in prison if convicted, began as Attorney General Michael B. Mukasey renewed debate in Washington over how the U.S. courts should handle legal claims filed by detainees. After a recent U.S. Supreme Court ruling that offered Guantanamo Bay detainees the right to challenge their detentions in civilian courts, Mukasey said, there is a "pressing need" for clarity on how federal judges should treat those petitions, which have been filed by more than 270 detainees.

He urged Congress to draft legislation that would impose a uniform set of procedures for the use of classified information in such "habeas corpus" suits, and expressed special concern about the possibility that detainees could be released inside the United States.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he doubts Congress will race to pass such complex legislation in an election year.

The jurors in Hamdan's trial were selected from an officer pool chosen by the Pentagon official who oversees the military commission system. Under a military judge's order, they are anonymous, as is common in terrorism trials in civilian courts. A two-thirds majority is required for a conviction, and the same jury would determine Hamdan's sentence.

The jurors excluded by the defense included a Navy captain and former Fairfax County police officer who knew someone killed in the attack on the Pentagon, and a Naval flight officer who received classified briefings about the war in Afghanistan. Hamdan is charged with driving bin Laden to safety throughout that country before and after Sept. 11.

Among the possible alternates sent home by the judge was an Army colonel who had acknowledged his concern on a questionnaire that "truly dangerous people" could be released on legal technicalities.

Staff writers Carrie Johnson and Josh White and staff researcher Julie Tate in Washington contributed to this story.