Civil plea for Hicks

[Wenchie]

By Roy Eccleston
January 15, 2004

DAVID Hicks's Pentagon lawyer has told the US Supreme Court the military commissions likely to try the Australian and other "enemy combatants" are unfair and unconstitutional.

In an embarrassment for the Bush administration, Major Michael Mori and four other military lawyers acting for Guantanamo Bay prisoners this week submitted a "friends of the court" brief that calls for Mr Hicks and others to have the option of an appeal to US civilian courts.

The Bush administration has fought zealously to deny the judiciary any say in the fate of alleged enemy combatants who supported the Taliban or al-Qaeda. But the brief warns a defendant would be "thrown into a legal black hole (where they) may not contest the jurisdiction, competency or even the constitutionality of the military tribunals".

"The struggle against terrorism is potentially never-ending," it says.

"The Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself."

The argument of the widely experienced Pentagon defence lawyers will be considered along with a broader challenge to the detention of Mr Hicks and others likely to be heard in late March or early April.

Major Mori told The Australian he had been granted permission by the military to make the submission to the US's highest court.

The court agreed last year to hear an action by civilian lawyers for Mr Hicks and 15 other Guantanamo Bay inmates to challenge the Bush administration's claims that civilian courts had no jurisdiction over the prisoners, and that the prisoners had no right to "due process" under law.

Major Mori said the military lawyers were not supporting either side in the case, but presenting a middle course. "We're saying to the Supreme Court, 'don't forget to look at this side as well'," he said.

Essentially, the lawyers want Mr Hicks and other prisoners to have similar rights to US troops who face a court martial. While the military conduct the case, the defendant has the right to dispute the verdict in the Supreme Court.

"If you look at any judicial process, you have a role for the executive branch bringing the charges, but you need checks and balances, an independent judiciary, an independent jury and an independent process of review," he said.

What was missing from the tribunals was "a system of review that is independent to meet the fundamentals of fairness," Major Mori said.

Mr Hicks has received visits from his lawyers but has not yet been told of any charges to be laid.

He is one of six prisoners who have been nominated for possible trial, and a decision could come soon.

The Australian


after more than 2 years since his capture Hicks is still yet to be charged......kinda scary really