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Court strikes at heart of Hicks case
By Phillip Coorey - 10nov04

A US Federal Court judge ordered yesterday that Military Commission proceedings against a Guantanamo Bay inmate be stopped immediately.

It raised the hopes of David Hicks' lawyers that he, too, will be spared and sent home.

In a blow to the Bush Administration's self-granted anti-terror powers, Judge James Robertson found the controversial Military Commission process was "fatally contrary" to America's code of military justice.

He took issue with the non-independent appeal process and the power to exclude an accused from hearings and deny him access to evidence presented against him.

He also ruled that President George W. Bush had no authority to classify inmates as "enemy combatants", which denies them prisoner of war rights under the Geneva Conventions. Judge Robertson ordered that even if the Commissions was made fair, there could be no further proceedings until "a competent tribunal" and not Mr Bush, classified the inmate.

"The President is not a tribunal," he said.

The ruling, handed down in the US District Court in Washington DC, concerned Yemeni Salim Hamdan, accused of being Osama bin Laden's bodyguard and driver.

But the Pentagon conceded yesterday its implications would likely to extend to Hicks and others.

Like Hicks, Hamdan was captured in Afghanistan in December 2001, taken to Guantanamo Bay, and deemed eligible by Mr Bush to face trial by Military Commission.

Hamdan and Hicks are among the handful of detainees to have since been charged with terror offences and had Military Commission proceedings started against them.

The challenge to the Federal Court was made possible in June when the US Supreme Court ruled all detainees could challenge their detention before US civilian courts.

Hick's lawyers have lodged the same challenge as Hamdan's before the same court, but a different judge, and are expecting a ruling within weeks.

"Enough is enough," said Hicks' military lawyer Major Michael Mori yesterday after the Hamdan ruling.

"Free David Hicks.

"He's in the exact same position as Hamdan and they shouldn't go forward with his commission.

"The Federal Court has stepped in, said the commission is contrary to military justice and the system is unfair."

Major Mori said the Australian Government must realise the commissions were invalid and step in and take Hicks home.

'Unlawful' ruling may delay Hicks trial
A lawyer for Guantanamo Bay inmate David Hicks has welcomed a US federal judge's ruling that the military tribunal trial of a Guantanamo prisoner is unlawful.

The trial of a man accused of being Osama bin Laden's bodyguard and driver has been halted and Hicks's lawyer, Stephen Kenny, believes it could have implications for the Australian's trial.

"To us it is clearly a breakthrough, because it has actually halted the proceedings against that particular individual and will have a direct application to David's position," Mr Kenny said.

"It may mean that if they are to be tried, they'll be tried in accordance with the regular rules of a US court martial and that would mean that the usual rules of evidence would apply and there would be a great deal of fairness about it, which is absent in the present system.

"My understanding is that the hearings at Guantanamo Bay this week before Colonel Brownback, who is the same judge that is hearing David's matter, immediately adjourned the proceedings, so I've no doubt that they will also hold off on David's proceedings until an appeal is heard."

The US Justice Department has criticised the ruling, which is seen as a major setback for the Bush administration, and vowed to appeal against it immediately.

The Hicks defence team has launched a similar appeal against how the Australian is being tried and Mr Kenny now will not rule out seeking bail for his client.

"Theoretically it may delay the matter possibly for six months or even indefinitely if the US Government is unsuccessful in the appeal," he said.

Hicks's father, Terry Hicks, says the development could be positive.

"The civil court proceedings are seeing the unjust side of the military proceedings and how it's being handled," he said.

More than 500 people are being held at Guantanamo Bay after being detained during the 2001 invasion of Afghanistan and in other operations in the US war against terrorism.

The military commission has already started proceedings against Hicks. Mamdouh Habib from Sydney is also expected to face trial.

-ABC/Reuters/AFP

Hicks moved out of solitary confinement
Tuesday November 9, 05:18 PM

Australian terror suspect David Hicks has been removed from solitary confinement ahead of his pending trial.

The move out of solitary confinement at Guantanamo Bay's Camp Echo had lifted Hicks' spirits, his Adelaide-based lawyer Stephen Kenny said on Tuesday.

"His mood has improved by being moved out of solitary confinement," Mr Kenny said.

He said Hicks was now being detained at Camp Delta, where he had contact with other prisoners, ahead of a trial scheduled for March.

It was not known why he had been moved.

In a letter to his family, received last month, Hicks said: "I feel as though I'm teetering on the edge of losing my sanity after being in such a long ordeal."

However, the Australian embassy in Washington DC last week said an embassy official had met for 30 minutes with Hicks and it appeared he was in fine health and good spirits.

Mr Kenny on Tuesday said Hicks' condition had improved.

"I don't think I'd say he's on the brink of insanity," Mr Kenny said.

"If that's what he said at that time, then I think that's probably accurate but I think that was still written while he was at Camp Echo.

"David is coping reasonably well, considering the circumstances in which he finds himself.

"However, he is certainly showing the signs of a prolonged incarceration and, particularly, a long detention in solitary confinement.

"If he'd stayed in the circumstances that he was in, in solitary confinement, we were becoming increasingly concerned about his mental health."

Heated exchanges at Hicks military hearing
Lawyers representing Australian man David Hicks have challenged the conspiracy and terrorism charges brought against him during a heated hearing at Guantanamo Bay in Cuba.

In a hearing that sparked heated exchanges, Hicks's lawyers argued that the charges were not valid under international law.

A key element in the debate was that Al Qaeda is not a state and war crimes generally require two sovereign states to be in conflict.

Hicks's civilian defence lawyer, Joshua Dratel, says he is also disappointed the commission declined to hear from expert witnesses during the hearing.

"We had the better of the argument as to whether or not these offences exist under the law of war or whether, the one that it does exist, which is aiding the enemy, could possibly be charged against Mr Hicks," he said.

Hicks's defence lawyer, Major Michael Mori, also argued that the trial due to begin in January will be unfair because the panel has been reduced from five members to three.

International observer Jammel Jaffer says the issues raised have cast doubt over whether the defendants will receive a fair trial.

"The concern now is that the debate over these complex issues is going to take place in a kind of legal and intellectual vacuum," he said.

"I think that most Americans want the defendants here to be provided a full and fair hearing. I think what we saw here today reinforces our concern that they are not being provided that kind of hearing."

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