Free David Hicks!
By Dale Mills
David Hicks has been held without charge in the US military camp at Guantanamo Bay in Cuba for more than two years. In
November, US Major Michael Mori was appointed as his military ``defence counsel''.
On January 21, Mori launched an attack on the US military tribunal process claiming Hicks was unlikely to receive a fair
trial. He also denounced the agreement by the Australian government to allow the US — rather than Australia — to try
Hicks for any offences he is alleged to have committed.
“The military commissions will not provide a full and fair trial”, Mori told reporters in Washington on January 21. “The
commission process has been created and controlled by those with a vested interest only in convictions.”
Mori’s role
David Hicks’ father Terry Hicks is hopeful that the US-appointed defence counsel will be effective. “. . . he [Mori] did
tell me he’s not rolling over for anyone, well, he’s certainly proved that [by his comments to date]”, Terry Hicks told
ABC Radio on January 22.
As a US major, Mori’s ultimate boss in the chain of command is President George Bush. If Mori holds a press conference,
does a radio interview, or submits a defence statement to the tribunal, he needs to get permission from his superiors
first. It is not far-fetched to speculate that Bush will be personally notified each time such requests are made.
Mori may be genuinely attempting to do the best for his client, but how can he under these conditions? The appointment
of a defence counsel may be merely a charade designed to give legitimacy to a corrupt process.
In an interview with ABC TV on January 22, Mori said that he had no idea what the charges against Hicks were, or when he
would be brought to trial. He said that he could not reveal the content of his discussions with Hicks, not because of
lawyer-client confidentiality, but because of the rules imposed upon him by the military commission.
The farcical nature of the trial means that even if acquitted, Hicks can still be kept in detention indefinitely.
Mori does not even have access to basic pre-trial disclosure documents. “I have not seen the official agreement between
the US and Australia and I wasn't privy to any of the discussions”, he told radio station 2UE on January 21.
`Forum shopping'
According to Attorney-General Philip Ruddock, the accused in criminal trials should not be allowed to “forum shop”. This
refers to a strategy in which defence lawyers seek the type of court or court location likely to get the most favourable
result. For example, if a person is charged with drug trafficking, it would be better to be tried in an Australian court
than in a country where the death penalty might apply.
However, this is not the case with Hicks. No evidence has been released indicating that he has done anything wrong.
Ruddock himself has admitted to ABC radio that, “Our view has always been that if we were to return Mr Hicks and [his
fellow Australian detainee] Mr Habib to Australia there are no charges that we would be able to bring against them under
our law as it was at that time”.
Ruddock's comments imply that if the Australian government’s new “terrorism” laws had been introduced earlier, then
Hicks could be brought back to Australia for trial. The government has not released conclusive evidence, however, to
suggest that Hicks would be convicted even if the new laws could be applied.
Court challenge
In November, the US Supreme Court agreed to hear a claim by some detainees — including Hicks and Habib — that they have
a right to challenge their detention in the US civil courts. This is opposed by Bush. The hearing is due in March with a
decision expected in June.
One document to be examined by the court is a “friend of the court” submission by 175 British MPs urging Bush's
compliance with the rule of law. Four of the signatories are retired members of Britain's most senior court. It is
unprecedented for such establishment figures to publicly intervene in the judicial process of another country.
Within the US, friends-of-the-court briefs in support of those detained have been filed by US federal judges, former
American diplomats, former legal advisers to the US armed forces, ex-US prisoners of war, law professors and legal
historians.
“The Anglo-American legal community is uncomfortable with the idea of a land without law and detention without habeas
corpus [the right to bring a detainee before the court]. The view expressed in the briefs [to the Supreme Court] is that
the administration's position is legally extreme...”, said Harold Koh, dean of Yale law school, according to the January
20 Guardian.
There is also widespread opposition reflected in the mainstream press. On January 14, the New York Times urged the
Supreme Court to “start reining in the disturbing excesses of the administration’s war on terror”. On January 18, the
Washington Post said that if the Supreme Court gets it wrong, the court could, in the future, deny itself the
possibility of ruling on the legality “not only over the detentions at Guantanamo, but over the military tribunals that
may some day take place there. The unthinkable result could be criminal trials wholly outside the supervision of the
federal courts ... The government's failure to create any sort of rational and transparent system for handling detainees
is a disgrace.”
Courts vs Bush?
A ruling in favour of those detained would result in one of the biggest ever clashes between the US courts and the
administration. Some evidence suggests that the Supreme Court may rule against Bush. In December, the New York federal
appeals court ruled two to one that the government had no authority to declare Jose Padilla an enemy combatant, and
therefore strip him of his legal rights. Padilla is a US citizen who was arrested on US soil. The government is
appealing that decision.
Some US civil rights lawyers have suggested that challenges to the legality of the Guantanamo detention facilities are
behind the slow release of some of those who were detained there. Under a secretive review process, the US has
unconditionally released 84 Guantanamo prisoners.
Mori told ABC TV on January 22 that he did not know when the trial would take place. He could not even confirm if it
would commence within two years. Let’s hope, for Hicks’ sake, that he is released before then.
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From Green Left Weekly, February 4, 2004.
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