Green Left Weekly: Free David Hicks!

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.

From Green Left Weekly, February 4, 2004.
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