March 26, 2007 – Australian before Guantanamo military commissions

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Hina Shamsi – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

March 26 , 2007
Australian before Guantanamo military commissions
Speculation has been swirling this weekend, here at Guantanamo, about two developments that could make today’s hearing in the case of detainee David Hicks case anything but mundane.
First, there’s talk of a possible deal in which Hicks would plead guilty to the charge against him and serve any additional jail time in his native Australia. Second, mutual accusations of unethical behavior by military lawyers on the prosecution and the defense team have been ratcheted up: the defense has filed a motion accusing the chief prosecutor, Colonel Morris Davis, of professional misconduct and asking that he be removed from the case.

The dynamics behind plea discussions (what we know of them, at least) are not surprising if you’ve been following the Australian media’s detailed coverage of the Hicks case over the last year, but they do illustrate the still quixotic nature of the new military commissions system and raise questions about its fairness. Would the Hicks case be proceeding first if this were not an election year in Australia? Are the charges against him a result of pressure from one of the United States’ most staunch allies?

You see, even though most Americans have little idea of who David Hicks is, what he’s charged with, and why his case matters, these are matters of profound political importance in Australia. Indeed, an Australian federal court (similar to U.S. federal district courts) will hold a hearing on May 17 to examine whether the Australian government has failed in its duty to protect Hicks, under the Australian constitution, by not seeking his release from Guantanamo and permitting his trial under the military commissions system.

The Australian media are rife with reports that Australian officials successfully lobbied the U.S. Justice and Defense departments to speed Hicks’s trial along and to lower the charges against him both because they were not supported by the evidence and because one of the original offenses with which he was charged, conspiracy, is not a violation of the laws of war. Apart from conspiracy, Hicks was charged under the old military commissions system with attempted murder and with aiding the enemy (al Qaeda and the Taliban). Now, he’s accused of “material support for terrorism”, which is still not a war crime recognized under the international laws of war, but is an offense under last year’s Military Commissions Act.

Until last year, it seemed that both the Australian government and, generally, the Australian public, had been quite satisfied to have the United States detain and try Hicks. But that’s no longer the case. I asked Michael Griffin, a member of Hicks’s Australian legal team, to explain the change in dynamics while we waited this weekend for our plane to Guantanamo.
Griffin identified three factors: (1) the U.S. Supreme Court’s June 2006 decision in Hamdan v. Rumsfeld holding that the military commissions system authorized by President Bush in November 2001 was illegal; (2) the five-year anniversary of Guantanamo; and (3) the efforts of Major Michael “Dan” Mori, Hicks’s U.S. military lawyer.

It intrigued me that Hamdan had such resonance in Australia; why would people care? According to Griffin, “The United States is our major ally. Our government had been telling Australians that the [military commissions] system was good and fair, but then the United States’ own Supreme Court invalidated it. That resonated.” I asked Griffin what concerned him most about the system and he identified two things: “the retrospective nature of the material support charge and the availability of coerced evidence, which is completely contrary to all our principles.”

Griffin added that Major Mori “really connected with [the Australian] people’s affection. He is a member of the U.S. military, fighting against his own country. Of course, he’s also a great advertisement for the U.S. military, which allows its lawyers can advocate vigorously on behalf of their clients.”

Not everyone, and especially not the military commissions chief prosecutor, shares Mr. Griffin’s views about Major Mori. An underlying issue in the prosecutorial misconduct motion against Col. Morris Davis is Col. Davis’ criticisms of Major Mori’s advocacy for his client in Australia. (It’s unclear whether the motion will be argued today or not.)

Griffin summarized the prevailing view: “It’s starting to hit a chord with the Australian public. A system that is not good enough for the Americans, the British, or any other Western nation and yet, it’s okay for some reason to subject an Australian to it, according to our own government.”
Hicks may not be subjected to this system if a plea is negotiated either today or before trial. Yesterday, another member of the Australian legal team told members of the press here at Guantanamo that Hicks is struggling with whether to plead or not. [This is based on subsequent conversations with the media. Despite repeated requests that my NGO colleagues and I made yesterday, we were not allowed to attend the press briefing. We have complained in writing about this lack of access and have been told that we should not face similar restrictions today.]
It’s already been reported that if Hicks is convicted, he would serve any time in Australia. After 5 years of uncertainty, abuse and mistreatment in U.S. custody in Afghanistan and Guantanamo, and continuing harsh detention conditions Hicks must be sorely tempted to plead. It appears that the politics of the situation give him an option that may not be open to the approximately 385 other detainees here.
The Hicks arraignment is at 1 p.m. this afternoon.


Published on March 26, 2007


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