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Old 14-01-04, 07:28 AM   #1
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Default Civil plea for Hicks

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
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Old 14-01-04, 09:34 AM   #2
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and if he didn't do what the US accuses him of (training with Al-Queda and fighting with the Taliban) then why would we bother keeping him?
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Old 14-01-04, 03:12 PM   #3
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Quote:
Originally posted by span
and if he didn't do what the US accuses him of (training with Al-Queda and fighting with the Taliban) then why would we bother keeping him?
His guilt or innocence isnt really the issue.....hopefully that will be decided by a fair trial.
If you read the above article the issue is in fact whether he will indeed get a fair and unbiased hearing with the proper avenues of recourse.
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Old 14-01-04, 04:00 PM   #4
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since he's not a US citizen and is in fact an enemy of the US captured on the feild of battle why should he be allowed the same rights (IE an appeal in civilian courts) as a US citizen ?
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Old 14-01-04, 04:16 PM   #5
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Quote:
Originally posted by span
since he's not a US citizen and is in fact an enemy of the US captured on the feild of battle why should he be allowed the same rights (IE an appeal in civilian courts) as a US citizen ?


The constitution protects all people on American Soil. Does not matter if you are a citizen or not. I believe Guantanamo Bay is considered US Soil.


To Quote Mr. Hicks father....


Terry Hicks, the father of Australian Guantanamo Bay detainee David Hicks, admits his son may have received military training with Al Qaeda but not terrorist training.


Mr Hicks says his son received military training from Al Qaeda but he says it was in preparation to fight for the Taliban against the Northern Alliance.

The US ambassador to Australia, Tom Schieffer-----"I don't think Al Qaeda is kind of into helping the sisters of the poor, they're doing bad things and ... I think we've seen the result of Al Qaeda training," Mr Schieffer said.

"I have great sympathy for a parent in the position Mr Hicks is in and I think obviously his point of view is different to mine but that's his son that he's talking about."



I agree with Mr. Schieffer
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Old 14-01-04, 04:19 PM   #6
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He will get a fair trail. Why wouldn't he?


Little more info...


1) http://www.campxray.net/page7.html

In early 2000 David rang his father and told him that he was travelling to Kosovo to support the Kosovo Liberation Army. He was there for about 6 weeks before returning to Adelaide following the end of the fighting.

2) http://www.realitymacedonia.org.mk/w...e.asp?nid=2679

He returned to Australia in late 1999 and claimed to have been through six weeks training, boasted he had been in the trenches, killed a few Serbs....

3) http://news.bbc.co.uk/2/hi/asia-pacific/3044386.stm

One day in 1998, he phoned his parents to tell them he had decided to join an organisation called the KLA.

"I thought it was an airline," his father Terry reportedly said.

But David Hicks was actually going to the Balkans, to fight against the Serbians with the Kosovo Liberation Army.

His parents said he had found out how to join up on the internet.

4) http://www.brookesnews.com/032702ramseyhicks.html

Hicks found his way to Afghanistan when he fought with the Kosovo Liberation Army (ethnic Albanians) against the Serbs, converting to Islam and taking the name Mohammed Dawood. That al Qaeda had operatives in Kosovo fuelled suspicions that Hicks links with this group of terrorists is closer than he had admitted.

5) http://www.dfat.gov.au/media/transcr...0720_nine.html

LAURIE OAKES: Now, David Hicks fought in Kosovo as a mercenary. Isn't that illegal under Australian law?

6) http://www.greenleft.org.au/back/2003/542/542p8.htm

David Hicks

While David Hicks now languishes in a cage at Guantanamo Bay as an alleged terrorist without legal any status, he must be pondering past adventures when he was on the side of the angels.

Hicks fought for a while with the Kosovo Liberation Army, the Albanian Muslim outfit which played a big part in pushing the minority Serbs out of what had been the historically Serbian province of Kosovo.

In these endeavours he was an ally of the US and NATO. He moved to Afghanistan and joined the Taliban, which had received covert US aid in its push to power.

Hicks did not become an official enemy until the US turned on the Taliban after the cataclysmic events of September 11. Now he's marooned in no-man's land, unloved and forgotten.

Phil Robins
Toorak Gardens SA

7) http://www.coolabah.com/oz/southafrica/index31.cfm

David Hicks isn't a nice person. He's a mercenary (the basest form of soldiering) who fought in the former Yugoslavia as part of the Kosovo Liberation Army before plying his trade for the Taliban. As a mercenary, David Hicks can be charged under Australian law. But it's interesting that the fact that he fought with the KLA barely raises an eyebrow in this country. But of course, we like the Kosovars. We even brought a whole bunch of them for an Australian holiday when the war was raging in their country.

8) http://www.theage.com.au/articles/20...783356110.html

Hicks is dubbed the "Aussie Taliban" by the tabloids, and has spent much of his adult life in a world where the rule of law meant very little, fighting unconventional wars in the Balkans with the Kosovo Liberation Army, in Kashmir with Islamic separatists and in Afghanistan with the Taliban and - allegedly - al-Qaeda.

9) http://news.ninemsn.com.au/National/story_50397.asp

Hicks has been detained without charge since being captured fighting for the Taliban in Afghanistan in November 2001. He is alleged to have acted as a mercenary, also fighting for Islamic forces in Kosovo.

10) http://www.sptimes.com/2002/02/20/ne...arificat.shtml

Hicks left school at age 14 and held a string of odd jobs, according to the Australian media. At 21, he was the father of two children. A convert to Islam, he fought in Kosovo against Christian Serbs, then took off for Afghanistan, where he was captured.
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Old 14-01-04, 04:25 PM   #7
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Quote:
Originally posted by span
since he's not a US citizen and is in fact an enemy of the US captured on the feild of battle why should he be allowed the same rights (IE an appeal in civilian courts) as a US citizen ?
He shouldn't

He should however be allowed the same rights as a P.O.W
He should be charged, sent home for prosecution or released if no charges are laid.

Indefinite detention without charge is hardly fair.
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Old 14-01-04, 04:31 PM   #8
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Quote:
Originally posted by Wenchie


Indefinite detention without charge is hardly fair.

Since when is life supposed to be fair????
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Old 14-01-04, 04:42 PM   #9
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holy chit sinner, nice characterization of Mr. Hicks.
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Old 14-01-04, 10:03 PM   #10
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Quote:
One day in 1998, he phoned his parents to tell them he had decided to join an organisation called the KLA.

"I thought it was an airline," his father Terry reportedly said.

But David Hicks was actually going to the Balkans, to fight against the Serbians with the Kosovo Liberation Army.

His parents said he had found out how to join up on the internet.
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Old 14-01-04, 10:49 PM   #11
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i think if KLA ever wants to be thought of as a truely evil organization they need seriously consider adding a "W" to the end of their name.
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Old 15-01-04, 04:46 AM   #12
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Quote:
Originally posted by Sinner
Since when is life supposed to be fair????
Life will certainly not be fair for the detainees at guantanamo bay.....and while the bush administration continues to flout the geneva convention and be a law unto themselves.

(and they act surprised when people retaliate )
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Old 15-01-04, 05:34 AM   #13
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Quote:
Originally posted by Wenchie
Life will certainly not be fair for the detainees at guantanamo bay.....and while the bush administration continues to flout the geneva convention and be a law unto themselves.

(and they act surprised when people retaliate )
enemy combatants aren't POW's
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Old 15-01-04, 05:57 AM   #14
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Quote:
Originally posted by span
enemy combatants aren't POW's
Who decided that david hicks and others sharing his fate are enemy combatants??.....actually the term is 'unlawful combatants'

The US has made this decision ...which in itself contravenes the Geneva Convention.

The Conventions stipulate that all combatants captured in the course of a war must be accorded POW status unless and until it is proven, by means of a competent tribunal, that they are guilty of criminal actions.
The detaining power does not have the right to unilaterally classify an entire class of captured fighters as “unlawful combatants” or “terrorists,” and on this basis deny them their rights under the Conventions.

The tribunal never happened.... as I said....... a law unto themselves.
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Old 15-01-04, 06:39 AM   #15
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if i remember correctly there are 3 stipulations a prisoner must meet to be a POW, take orders from a military figure, wear a nations official military dress and something else i can't remember, but it doesn't matter, when you're fighting for Al-Queda just those 2 alone disqualify you.
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Old 15-01-04, 06:57 AM   #16
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Carrying your weapon openly.

They dont have to wear military dress, they just have to have some kind of insignia that is recognizable.



Quote:
Originally posted by span
if i remember correctly there are 3 stipulations a prisoner must meet to be a POW, take orders from a military figure, wear a nations official military dress and something else i can't remember, but it doesn't matter, when you're fighting for Al-Queda just those 2 alone disqualify you.
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Old 15-01-04, 06:59 AM   #17
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Quote:
Originally posted by span
if i remember correctly there are 3 stipulations a prisoner must meet to be a POW, take orders from a military figure, wear a nations official military dress and something else i can't remember, but it doesn't matter, when you're fighting for Al-Queda just those 2 alone disqualify you.

Well a few more than three.....
and no fighting for al queda doesnt automatically disqualify you ....except when the US is applying its own brand of 'law'

which shouldn't apply to david hicks as he is classed as a Taliban fighter , not al queda ( even by the US!!)

And after all that, should we be in any doubt, the Convention also gives us this:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal"
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Old 16-01-04, 03:47 PM   #18
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Quote:
Originally posted by Wenchie
He shouldn't

He should however be allowed the same rights as a P.O.W
He should be charged, sent home for prosecution or released if no charges are laid.

Indefinite detention without charge is hardly fair.

Ah, POW's are not sent home for prosecution. Geneva Convention "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities" (Article 118). So they can argue and should, the POW's will be held until there is no more theats of terrorism, which will happen years and years past all their and our lives. They arguement could then turn, they are poor and misled Muslim youth who joined up to fight the Northern Alliance and not terrorist at all, which is fine but they will have to prove that in a court. If today they become POW's, I bet non will get their freedom. Some could be terrorist and if they trained with a terrorist organazation, well, I will give the USA govt the benefit of the doubt and they can remain in cages for all I care. David Hicks---POW or not should remain locked up until terrorism against the USA and the World is no more.

They are not considered POWs because then the USA could not question them. They are not going anywhere but back to a cage.

Also if he is a POW he can not be charged because it is not illegal to be a solider.


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One of the main moral arguments offered to support this position is that there is a certain degree of respectability surrounding prisoner of war status. Normally, although prisoners of war are detained, they are not considered criminals since soldiering is not an illegal act. However, many states have had difficulty in applying the laws of war to non-international conflicts, especially as the opponent tends to be viewed as a criminal and without the right to engage in combat operations.[17] In the view of these states, applying the rules of international humanitarian law seems to imply a degree of moral acceptance of the right of any particular group to resort to acts of violence, at least against military targets.[18] The United States in particular has held this position for at least 25 years, arguing that application of the rules of war might actually favour guerrilla fighters and terrorists, affording them a status that the US believes they do not deserve. On January 29, 1987, President Ronald Reagan argued that US repudiation of the Additional Protocols was an important move against “the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices.”[19].

A second moral argument is offered by Jeremy Rabkin in the National Interest who claims that the method of fighting used by “Islamist radicals” eliminate any moral grounds for affording captured prisoners POW status. He argues:

Islamist radicals do not think of war as a conflict between states from which ordinary humanity should, as much as possible be spared… The aim is simply to punish a whole society for its sins. The preconditions for reciprocal restraint are wholly absent.[20]

Therefore, this argument holds that by openly violating the laws of war and attacking civilians, the perpetrators of these acts have removed any basis for treatment along the lines of the Geneva Conventions.
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