US military justice on trial when Hicks enters court
By Marian Wilkinson, Herald Correspondent in Guantanamo Bay, Cuba
Colonel David McWilliams, the US Army's public relations chief for the
hearings, in the court where David Hicks will stand trial. Photo: AP
There is the appearance of justice in the newly furnished courtroom where David Hicks will finally be allowed to plead his guilt or innocence tomorrow, almost three years after US forces in Afghanistan bundled him on a plane and flew him to the Guantanamo Bay military jail.
When he arrives in this stark building, Hicks will be without his shackles and orange jump suit, dressed in civilian clothes for the first time since his capture. He will sit in one of the red leather chairs at the defence table with his three lawyers. To his right will be the military prosecutors.
In front of him will be five US military officers led by Colonel Peter Brownback III, sitting against a backdrop of the five flags of the US military services.
This is no ordinary court room. The converted World War II command centre sits inside a sterile security perimeter on a dry, ragged hill overlooking the blue waters of Guantanamo Bay.
Here, a full and fair trial, as one of the military's legal officers said bluntly, needed to be "consistent with our national security".
Over 50 members of the international media, from Al-Jazeera to The New York Times, along with lawyers from around the world, will join David Hicks's father, Terry, and stepmother, Bev, to observe the most important test of America's commitment to the international rule of law in the past 50 years.
The first hearings of the military commissions set up by the Bush Administration to try unlawful enemy combatants captured in the "war on terror" are set to unfold and with it a new chapter in legal history. Australia, the only Western government to endorse the commissions, will be sending two observers from its embassy in Washington.
Colonel David McWilliams, the US Army's public relations chief for the operation, has been trying for several days to juggle the promise of "transparency" for these hearings with the demands of the US Secretary of Defence, Donald Rumsfeld, for security and control.
So far, security is winning. There will be no photographs allowed of Hicks or the other three defendants, two Yemenis and a Sudanese. Even the court sketch artist has not yet been given permission to draw a portrait of the accused.
Colonel McWilliams denies this is because the military does not want to humanise the four, who are all accused of being members of al-Qaeda and conspiring to engage in terrorism and war crimes.
He has also asked that no images of the judging panel or their names, besides Colonel Brownback's, be published.
After the media's pre-hearing briefing in the empty court building, several military defence lawyers arrived for a pre-hearing conference, sweating in their shorts and T-shirts.
Standing slightly away from the bright blue portable toilets outside the court, Lieutenant-Commander Charlie Swift, the most aggressive of the defence team, told reporters that he would release his own picture of his client, Salim Ahmed Hamdan, a Yemeni accused of being a bodyguard for Osama bin Laden.
Legal observers from Amnesty International, the American Civil Liberties Union and Human Rights Watch, who peppered the military briefers with questions, emerged from the court room deeply concerned.
"The system is not fair, not impartial and not independent," said Sam Zarifi, deputy director of Human Rights Watch. "If it comes up with a fair decision it will be in spite of itself."
At the crux of the complaints about this experiment is that, unlike a court martial, its decisions cannot be appealed to a civilian court. These decisions include whether evidence that the defence alleges is obtained by torture will be admissible in the court.
But the deeper issue is that the commission, according to Hicks's defence lawyers, including his military lawyer, Major Michael Mori, is a dangerously flawed legal proceeding.
The US military is still insisting that Hicks will get "a full and fair trial". That debate is set to be played out inside this strange Guantanamo Bay court room in the next days.