Guantanamo Bay tribunals to begin again

Australian terrorism suspect to be arraigned today. Critics say the revamped trial system is still flawed.

By Carol J. Williams
Times Staff Writer

March 26, 2007

GUANTANAMO BAY, CUBA — As the newly reconstituted U.S. military trial system takes up its first case today with the arraignment of Australian terrorism suspect David Hicks, a sense of deja vu prevails in the on-again, off-again effort to prosecute those accused of having a role in the Sept. 11 attacks.

A ruling on the legitimacy of the tribunals is pending before the Supreme Court, which in June quashed an earlier system, calling it an abuse of President Bush's wartime powers.

Congress is still debating whether Guantanamo Bay's 385 prisoners should be accorded constitutional protections such as the right to challenge their detentions in federal courts through writs of habeas corpus.

Human rights advocates and governments around the world want to close the prison. They say the interrogation techniques used to elicit confessions and the detention of so-called enemy combatants for years without charges are illegal and immoral.

For Hicks, his family and lawyers, the Pentagon's quest for justice is a path they have tread for three years.

"This is like Groundhog's Day. We've been here before. We've done this before," said Marine Maj. Michael Mori, Hicks' defense lawyer. He called the case against his client concocted.

Hicks will be asked to enter a plea to the charge of material support to terrorism, which was defined as a war crime in September when the Republican-controlled Congress passed the Military Commissions Act, replicating Bush's 2001 order for a war crimes tribunal.

"When you don't have established rules and procedures, you risk convicting innocent people or allowing someone who is truly guilty to escape justice," Mori said.

Hicks' defense team has promised to challenge the sole charge against Hicks as a retroactive application of a law enacted when he had already been confined for 4 1/2 years.

It appears that part of the reason Hicks is the first defendant under the new system is that the Australian government has applied pressure. Hicks was one of the first war crimes suspects to be brought to the Guantanamo Bay prison, which opened in January 2002. He has been in military custody since, and his treatment has become an issue in this year's political campaign in Australia.

Pressure from Australia

During Vice President Dick Cheney's visit to Australia last month, Prime Minister John Howard urged him to speed up the proceedings against Hicks.

The 31-year-old former kangaroo skinner and Muslim convert is the only Guantanamo Bay prisoner to be charged under the new tribunal system, which Congress — now controlled by Democrats — wants to revise.

David McLeod, an Australian lawyer aiding Hicks' defense team, met with the detainee for 3 1/2 hours Sunday. He said Hicks was anxious and did not trust the legal process.

"He despairs of his chances under the system in which he's being tried," McLeod said.

He said Hicks had hair down to his chest and a 4-inch beard. He said guards had refused to allow Hicks a razor.

In a March 1 indictment, Hicks is accused of supporting Afghanistan's militant Islamic Taliban leadership in its fight against invading U.S. forces. The Pentagon alleges in a charge sheet — which omits an earlier accusation of attempted murder — that Hicks trained with the militant Kosovo Liberation Army, converted to Islam and joined Al Qaeda forces plotting the Sept. 11 terrorist attacks.

McLeod said that Hicks was considering many options, including a plea bargain, but that he expected his client to plead not guilty today.

"All of the options have to be discussed, from not guilty and tough it out through to how to get out of here at the earliest opportunity," McLeod said.

Bush administration officials say as many as 80 Guantanamo Bay prisoners will be charged with war crimes. They have suggested that the slow pace in resuming the tribunals can be blamed on a lack of courtroom space at the U.S. Navy base here.

But human rights groups and civilian lawyers say the government may be marking time until the Supreme Court decides whether it will rule on the legality of the new trial system.

"As usual, it's not just David Hicks but the system that's on trial here," said Ben Wizner, a lawyer for the American Civil Liberties Union. "And when even the secretary of Defense questions whether these trials will be deemed legitimate by the world, it's hard to escape the feeling that we're once again just going through the motions, rather than beginning a serious undertaking."

Defense Secretary Robert M. Gates has been quoted by senior administration officials as advising Bush to close the Guantanamo Bay prison.

Defending the system

Air Force Col. Morris Davis, chief prosecutor for the military, said he intended to use the first case to show the world that a fair justice system had been created. He also wanted to make a point to any skeptics in the administration.

"The idea that we've created this Frankenstein, cobbled-together system is not accurate," Davis said.

The 2006 Military Commissions Act was virtually a carbon copy of the White House order but explicitly denied the right of habeas corpus to foreign suspects. That right was bestowed on such prisoners by the Supreme Court in 2004, when it ruled in U.S. vs. Rasul that even though the prisoners were held outside the United States, they were entitled to certain constitutional protections.

Sen. Christopher J. Dodd (D-Conn.) urged the Armed Services Committee last week to hold a hearing on his proposed Restoring the Constitution Act, which would reinstate U.S. adherence to the Geneva Conventions, bar evidence that was obtained through torture or coercion, and restore habeas corpus rights to the detainees.

"Righting the wrongs of the Military Commissions Act becomes more critical with each passing day," Dodd said.

Senate Judiciary Committee member Arlen Specter (R-Pa.) filed a friend-of-the-court brief last week urging the U.S. Court of Appeals in Washington to recognize habeas corpus as "an age-old remedy for unlawful detention at the hands of the executive," and the Pentagon's Combatant Status Review Tribunal as "a wholly inadequate substitute."

Hicks' father, Terry, and his sister Stephanie were expected to fly from Washington to Guantanamo Bay for the arraignment today. Terry Hicks told journalists at the Australian Embassy on Sunday that he was bracing for his first glimpse of his son in about three years. He called the new tribunal system an illegitimate forum.

"He's having a day, but not in court," Hicks said. "It's a misconception people have that this is a court proceeding."