Wednesday, March 28, 2007


By William Fisher

As Australian David Hicks awaits sentencing after being the first Guantanamo detainee convicted under the Military Commissions Act, human rights organizations, legal scholars, and lawmakers, are condemning the entire MCA process and again challenging its constitutionality both in the courts and in Congress.

Earlier this week, Hicks, 31 pleaded guilty to providing material support for terrorists. He could face life imprisonment, but indications are that the U.S. may have struck a deal with the pro-Bush administration of Australian Prime Minister John Howard to have a lighter sentence imposed and to allow Hicks to serve his sentence in Australia. Howard is facing a tough campaign for re-election and the Hicks prosecution has become a major campaign issue.’’

After the tribunal judge and lawyers for both sides work out details of Hicks's plea, a full military commissions jury panel will meet to decide on a sentence.

Hicks, sometimes referred to as “the Australian Teleban”, has been in custody at Guantanamo for over five years. He was taken into custody by the U.S. military in Afghanistan in 2001 after being turned over to the Americans by the Afghan Northern Alliance, a warlord-led organization that was helping the US military. In many known cases, the Alliance received bounty payments for turning over alleged terrorists and their sympathizers. The practice has resulted in the Guantanamo detention of a number if prisoners later found to be innocent and freed. However, some of those found innocent are still being held at the Cuban base.

For most of his time in detention, Hicks was charged with no crime, and given only sporadic and restrictive access to lawyers and to his family.

Hicks’s trial has been characterized as something of a legal circus, with the colonel in charge of the court leaving many with the impression that the rules and procedures of these new bodies are still unclear.

At one point in the trial, the presiding judge, Colonel Ralph Kohlmann, ruled that one of Hicks’s civilian lawyers, including New York criminal attorney Joshua Dratel, could not represent Hicks because he had not signed a form demanded by the court saying he would conform to the regulations governing proceedings.

Dratel protested, saying he could not sign the form because the regulations governing the conduct of attorneys had not yet been formulated by the Secretary of Defense. He said he was not going to sign a blank check for his ethical obligations.

Among Judge Kohlmann’s other rulings was that an assistant to Hick’s military counsel, Marine Major Michael Mori, could not represent him because she was not a serving member of the military.

The judge also ruled in his own favor when Major Mori attempted to argue that judge Kohlmann was not impartial because he had not only effectively ruled against Hicks's defense team, but had also tried to schedule the hearing at a time when Hicks's civil lawyer was unavailable.

The judge also refused to follow the defense's suggested schedule of hearings, saying it would mean that the trial would not get underway until 2008.

Hicks offered no plea during the day’s proceedings. But late the same night, his lawyers notified the court he would plead guilty to one of the two charges against him – providing material support for terrorists. He entered no plea on the second charge – that he took part in paramilitary combat with the intent of killing American and Coalition troops. (CHECK)

As the Hicks prosecution draws to a close, the process through which it proceeded was being roundly criticized by human rights organizations, legal authorities and lawmakers.

As Mary Shaw of Amnesty International put it to IPS, “David Hicks has been detained for more than five years at Guantanamo without trial and with very limited access to his family and attorneys. He claims to have been subjected to torture and other abuses while imprisoned, but lacks the critical right to habeas corpus to challenge this treatment. Being charged and brought to trial under the hastily constructed and ill-advised military commissions system, Hicks has been denied basic rights that the United States has traditionally upheld.”

At the heart of that process is the Military Commissions Act (MCA), which was signed into law by President Bush on October 17, 2006. The act was the second attempt by the Bush administration to strip detainees of their statutory right of access to civilian courts by using habeas corpus to question the legality of their detention. This right has been twice affirmed by the Supreme Court, first in a landmark case, Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006. The act also allows for evidence obtained through torture - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an "enemy combatant."

The sentiments of Brian J. Foley, a professor at the Florida Coastal School of Law and a widely recognized constitutional lawyer, are typical of large numbers of attorneys. He told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”

He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies. As a result, our investigators lack an accurate picture of the real threat (whatever that is) and probably have an exaggerated view -- which is keeping our country in fear and wasting valuable resources and energies. Investigators are also susceptible to being toyed with by any real terrorist they've captured, who might simply send them scurrying in the opposite direction of a real attack. It's time our supposed leaders got hardheaded, and not just hard-hearted, about addressing terrorism. A tribunal system that uses only accurate evidence would be a step in that direction."

Court cases challenging the conditions of detention have been brought by lawyers representing or being coordinated by the Center for Constitutional Rights, a New York-based legal advocacy group that has mobilized hundreds of private attorneys to defend Guantanamo detainees. The CCR has again filed suit challenging the constitutionality of the MCA, particularly of the suspension of habeas corpus. If the Supreme Court decides to hear the case again, arguments would probably be heard in the spring.

And, as the high court makes its decision, US Republican Senator Arlen Specter on March 22, 2007 submitted an amicus brief to the Court in support of the CCR’s petition urging yet another court review.

In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."

Sen. Specter, a former US attorney, is the ranking member of the powerful Senate Judiciary Committee, which has jurisdiction of legislation such as the MCA. He was the committee’s chairman when the act was passed, but became its leading minority member when control of the senate passed to the Democrats as a result of the 2006 election.

Specter, considered a moderate Republican, is also locked in what promises to be an epic battle within the Congress to amend to MCA in order to restore habeas corpus rights to detainees through the Habeas Corpus Restoration Act of 2007.

The essence of Specter’s position is that if the US Constitution did not confer habeas corpus rights, it would not have said they could be suspended only in times of invasion or insurrection – neither of which applies today.

His principal adversary in this battle is Sen. Lindsey Graham, a conservative Republican from South Carolina, and one of the principal authors of the legislation. Sen. Graham maintains that no war prisoner or “enemy combatant” has ever enjoyed the right to come before a US civil court to question the basis of his detention.

The proposed new law is being strongly supported by human rights groups and legal scholars. Amnesty International, for example, told IPS, “Amnesty International urges all members of Congress to take a significant first step in restoring U.S. leadership on human rights by supporting (the proposed law), to return habeas rights to people in U.S. custody.

The view of most opponents of the government’s current system is summed up by a CCR spokesperson:

"The military commissions are illegal under U.S. and international law for many reasons, most important that they allow the admission of evidence obtained through torture and other coercion. Two of Mr. Hicks' attorneys were barred from the proceedings yesterday. According to his family and his lawyers, he is deeply depressed. It is likely he pled guilty to the charge of providing material support in order to be able to serve his time in Australia and leave the black hole that is Guantánamo.

"Hick's guilty plea should not be seen as legitimizing in any way an utterly illegal system of off-shore penal colonies, abuse, and 'trials' that violate fundamental due process rights. If Hicks is to be tried, he could and should be tried in a real court - as the U.S. has done with similar charges in the past. What really were Hick's choices?

"This is the first military commission to be held - out of 800 detainees, only 10 were ever designated to be charged and that number has dropped to three at present. There remain 385 men at Guantánamo that the government has never shown it had a reason to hold, who have been held indefinitely with no hope of being able to prove their innocence. This is a deeply flawed process whose rules change at the will of the government with no guarantees of due process or the rule of law."