The Associated Press Published: March 1, 2007

WASHINGTON: The Bush administration has charged an Australian who was captured in Afghanistan after the Sept. 11, 2001, attacks and held without trial ever since. David Hicks is the first terror-war suspect to face prosecution under a new system of military tribunals.

Hicks, a 31-year old former kangaroo skinner now held at the Guantanamo Bay U.S. military prison in Cuba, was charged with providing material support for terrorism and could face life imprisonment if convicted. Court challenges are certain before any trial.

Hicks' case, which has attracted broad attention in the United States and abroad, could well become the one that opponents of the new military tribunal system use to challenge the system at the U.S. Supreme Court. Opponents of the military commissions say they are illegal because they deny defendants many legal rights guaranteed under the U.S. Constitution.

"It all seems to be an intermingling of politics and pressure," said Jumana Musa, advocacy director for Amnesty International. "But none of it screams to me to be in the interest of justice."

Proponents of the new system say they expect the federal courts to rule in favor of the military commissions.

"I trust the system to judge Mr. Hicks fairly," said Republican Sen. Lindsey Graham, co-sponsor of the commissions legislation and a former military prosecutor. "It's long overdue this case be brought forward."

Meanwhile, Australia, a steadfast U.S. ally in the war on terror, has been pressuring the Bush administration to send Hicks back to his home country. That apparently would not come until after a trial at Guantanamo.

Last month, Sandra Hodgkinson, the State Department's deputy director for war crimes issues, told reporters, "It's certainly believed that Mr. Hicks may be able to carry out his incarceration, after the appeals process is complete, in Australia."

President George W. Bush and Congress established the new legal system last fall. Lawmakers set up the tribunals after the Supreme Court ruled an older version established by Bush was unconstitutional because it lacked Congress' blessing and violated international agreements.

"This is an important milestone for military commissions," said Navy Cmdr. J.D. Gordon, a Pentagon spokesman.

There are an estimated 385 detainees remaining at the Guantanamo prison in Cuba. None of the men held there on suspicion of links to al-Qaida or the Taliban has ever gone to trial.

Hicks was among 10 detainees who had been charged with crimes under the earlier law that the court struck down. Then, he had been charged with conspiracy, attempted murder and aiding the enemy.

Another of the 10 was Salim Ahmed Hamdan of Yemen, whose case ended up being the one the Supreme Court used to throw out the previous tribunal system.

According to Pentagon documents, Hicks went to Afghanistan in January 2001 to attend al-Qaida terrorist training camps. He also traveled to the southern city of Kandahar, the former Taliban stronghold, and stayed in an al-Qaida guest house where he met "shoe bomber" Richard Reid and other al-Qaida associates.

The Pentagon says that for about a year starting around December 2000, Hicks provided "support or resources to be used in preparation for, or in carrying out, an act of terrorism" and that he "knew or intended" for the support to be used for terrorism.

Last month, military prosecutors recommended that Hicks be charged with attempted murder for fighting coalition forces in Afghanistan and with providing support for terrorism.

On Thursday, Susan Crawford, head of the military commissions, formally charged Hicks only with providing material support for terrorism.

The Pentagon announcement did not explain why the attempted murder charge was dropped. But a package of talking points written for officials to answer questions on the announcement suggested Crawford did not believe the evidence warranted it.

Hicks' Pentagon-appointed lawyer, Marine Corps Maj. Michael Mori, said in Australia that the charge of providing support for terrorism was a fabrication that had not previously existed under the laws of war. He said Australian officials should not accept it.

"The Australians should demand that David be treated the same as an American citizen and that retrospective legislation should not be applied to him and he should be returned," Mori told Australian Broadcasting Corp. radio.

The military eventually hopes to charge 60 to 80 of the Guantanamo detainees. Once formal charges are filed, a timetable requires preliminary hearings within 30 days and the start of a jury trial within 120 days at Guantanamo.

Australian Prime Minister John Howard discussed Hicks' case with Vice President Dick Cheney when Cheney visited Australia last month. Under growing public pressure and with elections due this year, Howard has begun pushing U.S. officials to deal with Hicks' case more quickly.

• David Hicks Case Information

TONY EASTLEY: David Hicks' military lawyer, Major Michael Mori says the charge of providing material support for terrorism is thin and it's time the Australian government brought David Hicks home.

Major Mori is speaking to Alison Caldwell.

MICHAEL MORI: Well he was facing three - the conspiracy, attempted murder and aiding the enemy. All three of those have been dropped and have been shown that the United States was making those up.

And now they're repeating history and they're making up a new charge of material support for terror and this can't be tolerated.

ALISON CALDWELL: A serious charge though, still.

MICHAEL MORI: No it's not, it's a made up charge. It has a really impressive name but it never existed in the law of words, and not in any of the US law of war manuals, or any Australian law of war manual.

Again the United States administration and this military commission is fabricating offences and trying to apply them retroactively to David and the Australian government cannot be fooled a second time.

ALISON CALDWELL: Judge Susan Crawford dropped that charge of attempted murder. Are you encouraged by that?

MICHAEL MORI: Not really, because we knew all along it wasn't a real crime. It was made up and there wasn't any facts to support it. They've just been caught, and enough people recognise it, for what it was.

It was being fabricated and now they're trying to do it again.

ALISON CALDWELL: Moe Davis says he'd welcome any plea bargain from David Hicks' defence lawyers. Is that what you plan to do?

MICHAEL MORI: I plan to go to speak to the attorney general's office in Australia and explain to them the problems of this new crime and that they cannot be fooled the second time and allow this to continue.

ALISON CALDWELL: So what do you think should happen now?

MICHAEL MORI: Australia should demand that David be treated the same as an American citizen and that retrospective legislation should not be applied to him and he should be returned.

ALISON CALDWELL: The charge of providing material support for terrorism carries a life sentence still. Are you concerned that David Hicks could spend the rest of his life in Guantanamo Bay?

MICHAEL MORI: Isn't it a shocker that they can do this? They can create a crime after the fact that carries life imprisonment and no one is going to stand up for David's basic rights.

You know, they're going to treat him in such an inferior manner to an American and it shouldn't be tolerated and we're not going to tolerate it, and really, it's now incumbent on the Attorney General's office to do it's own evaluation and stop just relying on US assurances.

I'm just very shocked that David Hicks has spent five years in Guantanamo, and the US has finally admitted that all three charges before were made up and had no basis in evidence.

And yet, for two and a half years, Australian ministers kept saying he committed serious offences.

Somebody needs to take a step back, re-evaluate the situation and when cooler heads prevail, you will see that five years is long enough for David to stay in Guantanamo.

TONY EASTLEY: Major Michael Mori.

• David Hicks Case Information

TONY EASTLEY: The charge of providing material support for terrorism is based on admissions David Hicks made to US interrogators and to the AFP during the first 18 months of his detention.

Hicks will challenge the admissibility of that evidence, claiming he was physically and psychologically abused.

In May a civilian court in Britain will get a chance to test his torture claims as Hicks pursues his application for British citizenship.

AM has obtained a document central to that case and in it David Hicks alleges he was routinely abused and intimidated by US soldiers in Afghanistan and Guantanamo Bay.

AM's Alison Caldwell reports.

ALISON CALDWELL: Soon after he arrived at Guantanamo Bay's Camp X-ray, David Hicks was shown a photo of a battered Mamdouh Habib.

Habib's face was bruised black and blue. "I thought it was a photo of a corpse," says David Hicks. "I was told I'd be sent to Egypt and suffer the same fate if I didn't co-operate with my US interrogators."

David Hicks' detailed claims of sustained and deliberate torture and mistreatment are contained in a document, which will be presented to a British court in May, as he pursues British citizenship.

By the time he was interviewed by agents with Britain's MI5, in April 2003, David Hicks says the anxiety and fear brought about by the abuse forced him to, in his words, "say anything to his interrogators to avoid further punishment."

The alleged abuse began soon after he was handed over to the US military in Afghanistan in December 2001, and continued right up until midway through 2003, when he finally saw an Australian consular official.

During his earliest interrogations in Afghanistan, David Hicks says his hands were restrained behind his back, he was forced to kneel and regularly slapped on the back of his head, and told he was lying.

Transferred from one American ship to another, Hicks claims the physical abuse resumed, but always off the ship.

He claims he was questioned for up to 10 hours at a time, forced to kneel, verbally harassed, and physically assaulted by US personnel.

He says, "I was hit on the back of the head with the butt of a rifle several times, slapped on the back of the head, kicked, stepped on and spat on."

At one point, his head, armpits and crotch were shaved and with a sponge, he was covered with a mysterious liquid.

A white piece of plastic was forced into his rectum, while US personnel joked, one saying, "it's ribbed for you pleasure."

Describing his first few days at Camp X-ray in Guantanamo Bay, as a "harrowing experience," Hicks refers to the notorious initial reaction force or the IRF - six US soldiers wearing body armour, shin guards and helmets, carrying shields and accompanied by dogs.

Hicks claims as punishment, the IRF would rush into a cell, slamming a detainee into the ground, then kick and strike the detainee.

He says these incidents taught him not to resist the guards and the interrogators and it wasn't long before Guantanamo Bay personnel had complete control over him.

If inmates covered their face to block out the hot Cuban sun, or the powerful floodlights at night, they were woken by screaming guards, kicking their cage.

Hicks says loud noise was inflicted day and night, including intolerably loud music, along with extreme hot or cold temperatures, and disorientating lights.

In July 2003, David Hicks was transferred to Camp Echo and placed in solitary confinement with a cell without windows.

He was kept there for eight months without access to daylight. Soon after that, for the first time in over 18 months, David Hicks finally had his first visit from an Australian consular official, lasting just 10 minutes.

The US has repeatedly denied claims its mistreated prisoners in its custody. Claims of mistreatment by David Hicks were dismissed by two separate investigations.

TONY EASTLEY: Alison Caldwell reporting.

• David Hicks Case Information