Hicks' defence lawyers go on offensive

October 31, 2004

Challenging the boundaries of international law, defence lawyers are moving to dismiss charges against Australian David Hicks and Osama bin Laden's chauffeur.

The motions hearings that begin on Tuesday could make or break upcoming trials, coming as Americans head to the polls in US elections that could ultimately change the mission that has detained about 550 men from more than 40 countries in a US base in Cuba, most without access to lawyers or official charges.

The first hearing is for Hicks, a former jackeroo who joined Afghanistan's ousted Taliban regime. He is charged with attempted murder, aiding the enemy and conspiracy to attack civilians, commit terrorism and destroy property. Hicks has pleaded innocent.

Before his January 11 trial can start, a three-member military panel must hear a series of motions that can dispute the charges and also challenge his nearly three-year detention at the remote US outpost in Cuba.

"There won't be a lot of drama in these hearings, but the questions get to the heart of whether these commissions can be fair," said James Ross of New York-based Human Rights Watch, which will be observing the hearings with other international observers.

Defence lawyers say Hicks has been denied a right enshrined in the US constitution to a speedy trial, unfettered access to lawyers and the right to fair proceedings. They have also challenged a rule prohibiting him from being present for classified parts of his trial, saying he can't properly defend himself unless he knows the allegations.

Hicks was one of the first prisoners to arrive at the outpost in January 2002. He first appeared before the commissions in late August.

Prosecutors contend Hicks fought with the Taliban and took up arms against US and coalition forces. Because he and the other prisoners here are considered enemy combatants - a classification created by the Bush administration that gives them fewer legal protections than prisoners of war - prosecutors argue he isn't entitled to the same rights.

If the commissions panel denies the motions, there is no clear appeals process, another point of contention for Hicks' lawyers, who say they have warned their 29-year-old client that he faces the prospect of an unfair trial.

"If the motions are granted, the process would stop," Hicks's military-appointed lawyer, Marine Corps Major Michael Mori, said.

"But they're trying every roadblock they can."

The commissions panel started with five members and one alternate - only the presiding officer has legal experience - but three were dismissed after challenges to their impartiality. One was involved in detainee operations in Afghanistan. Another lost a reservist in the September 11, 2001, attacks in New York. A third was unfamiliar with all the Geneva Conventions governing prisoners taken in international conflict.

Defence lawyers also are arguing they need experts to help the panel understand difficult questions of international law and the law of war. Prosecutors object, saying they have not shown the need.

"(The hearings are) where the defence is challenging every aspect of the commission," said Lieutenant Susan McGarvey, a government spokeswoman for the commissions.

The second week of motions hearings scheduled to begin on Saturday is for Salim Ahmed Hamdan, a 34-year-old Yemeni who has said he earned a pittance driving bin Laden but denies supporting terrorism.

He is charged with conspiracy, a charge his lawyer says the commission is not authorised to hear.

"Conspiracy is not part of the law of war," said lawyer Lieutenant-Commander Charlie Swift, who is also concerned about Hamdan's mental health.

Swift has filed dozens of motions, including an argument that having ties to al-Qaeda does not constitute a crime.

US President George W Bush gave the order for the military commissions, the first time such trials have been ordered by the US since World War II.