By Cynthia Banham and agencies - February 2, 2005

A US court decision that declared the Guantanamo Bay military commissions unconstitutional, and said the prisoners had rights under the US constitution to challenge their detention, has intensified calls for the Australian Government to demand David Hicks get a fair trial or be brought home.

The decision, by Judge Joyce Hens Green of the Federal District Court in Washington, came days after the other Australian being held at Guantanamo Bay, Mamdouh Habib, was released by the US without charge and returned to Australia.

Lawyers said the latest US court decision, which followed an earlier Supreme Court ruling that prisoners at Guantanamo Bay were not beyond the reach of the US judicial system, indicated the military commission process was unravelling.

The Law Council of Australia's president, John North, said the decision added "further weight to arguments that the US approach at Guantanamo Bay does not afford detainees fundamental and basic legal rights".

"Mr Hicks should be given a fair trial, and this can only occur if he is removed from the military commission process and placed either before a court martial or the US civilian criminal justice system. If this is not possible, then he should be returned to Australia," he said.

However, the Attorney-General, Philip Ruddock, said the Government would not change its position on Hicks in light of the court ruling.

Judge Green's ruling conflicted with a ruling by another judge, Richard Leon, in the same court a fortnight ago. He found that the detainees could not have their cases examined in a US domestic court.

"You now have two conflicting views of differently constituted district courts in the US," Mr Ruddock said.

"The American judicial system will work these matters through."

Judge Green said in her decision: "Although this nation unquestionably must take strong action under the leadership of the Commander-in-Chief to protect itself against enormous and unprecedented threats ... that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

The US Government said it disagreed with the decision.

The judge also questioned whether some information used in evidence against detainees had been obtained by torture, citing FBI agents' memoranda which gave accounts of inmates being abused. The accounts included seeing inmates chained and lying in foetal positions on the floor who had urinated or defecated on themselves. Another inmate had apparently pulled out his own hair.

Hicks's US military lawyer, Major Michael Mori, said the FBI memos were the first "concrete evidence" of abuse.

His father, Terry Hicks, told the Herald the ruling showed "the legal system in America is starting to take note of the way detainees are being treated and it does contravene the constitution ... It was a good decision to hand down, but it may slow up the system for David, or put pressure on the US Government to squash his charge and send him home."

ELEANOR HALL: A decision overnight by a United States judge has contradicted the Bush administration and boosted those supporting David Hicks, the Australian still detained by the United States at Guantanamo Bay in Cuba.

US District Court Judge Joyce Green has ruled that rather than having no rights under US law, as President Bush has maintained, Guantuanamo Bay detainees do have constitutional rights.

But while the court ruling offers hope for David Hicks, it also further complicates his case, one that is already caught up in appeals and legal red tape. David Mark reports.

DAVID MARK: David Hicks is embroiled in legal limbo.

His trial before a military commission at Guantanamo Bay has been delayed following a decision by a US district court judge that the trial of another Guantanamo detainee had to be halted.

Michael Ratner, the President of the Centre for Constitutional Rights, explains.

MICHAEL RATNER: In a case in which there was another person before a military commission, a man named Hamdan, a District Court judge decided that he should have been treated as a prisoner of war under the Geneva Convention, and Geneva Convention requires that anybody that's a prisoner of war has to be tried by the same type of court that a US soldier would be tried, which would be a court martial.

Since that case was handed down, David Hicks's trial in the military commission case has been held up. So until that case goes to the Appeals Court, David Hicks cannot be tried by the military commission, and that was the end of the trial for David Hicks for at least a foreseeable period, and these appeals can take a year.

DAVID MARK: And so David Hicks resumed life at Guantanamo Bay as an enemy combatant.

In the interim, District Court Judge Joyce Green was reviewing another aspect of the cases involving the Guantanamo Bay detainees, whether they had the right to challenge their imprisonment.

That decision was handed down overnight and is described by Michael Ratner as significant.

MICHAEL RATNER: The United States has asserted that they have a right to hold people simply as enemy combatants until the end of the war on terrorism without any charges.

What the court is saying you can't do that. You have to give people a hearing, they have to have an attorney at that hearing, they have a right to see the evidence, you can't use coerced evidence, and you have a right to do that actually, she's saying, in a Federal Court not just in Guantanamo.

DAVID MARK: But things have been made more complex by a contradictory District Court ruling handed down last month.

MICHAEL RATNER: There was originally about eight or nine judges working on the 70 or so Guantanamo cases. Almost all of those cases were consolidated and put before the judge that decided the case today, Judge Green.

A couple of those cases were taken away from June Green by one of the original judges who said no, I want to decide some of these cases myself. That's Judge Leon. He decided the case about two weeks ago in a contrary fashion to Judge Green's.

DAVID MARK: But Judge Leon's ruling doesn't directly involve David Hicks. And Michael Ratner for one believes Judge Green's opinion has more judicial weight and will win the day.

MICHAEL RATNER: Particularly with Judge Green's decision, we have a right to immediately find out why our clients are being held, to get real hearings in Federal Courts, and to put the Government to its proof.

And what we've noticed when you put the Government to its proof is people have a habit of getting released, cause the Government has very little proof, particularly very little proof that's not coerced or the product of torture.

DAVID MARK: The US Government disagrees.

Here's White House Spokesman, Scott McClelland.

SCOTT MCCLELLAND: First of all there was another Federal Court that ruled opposite of this latest ruling, and secondly we respectfully disagree with the decision. The Department of Justice will be looking at what the appropriate next steps are to take in this matter, so they'll be reviewing the matter.

DAVID MARK: Any appeal, if it was allowed to proceed, would go to the US Circuit Court for the District of Columbia and possibly to the Supreme Court.

But if that appeal isn't allowed, or is heard and then thrown out, then Michael Ratner believes David Hicks's chances of getting released have increased.

The question, as David Hicks sits and waits in his Guantanamo Bay legal limbo, is when.

MICHAEL RATNER: You know, I think after Mr Habib was recently released, after the English people were released, I would say there's a much better chance for David Hicks.

DAVID MARK: In summary then, David Hicks's chances of being released have improved dramatically, would you say?

MICHAEL RATNER: I think they've improved dramatically. That's correct.

ELEANOR HALL: The President of the Centre for Constitutional Rights in the United States, Michael Ratner, ending David Mark's report.

KAREN PERCY: The family of David Hicks has welcomed the US court judgement, but believes the legal process could drag out even longer as a result. David Hicks' father, Terry Hicks, has also revealed that he's spoken with Mamdouh Habib. Nance Haxton spoke to Mr. Hicks outside his workplace in Adelaide's northern suburbs.

TERRY HICKS: I thought it was a good decision. It's a real slap in the face, I suppose, for the Americans. They won't like that. I should say what they will do is, they'll re-appeal, which'll probably put it back again while they're looking at that. I'm not sure if they will do that, but I should say they will.

NANCE HAXTON: What does this mean for David?

TERRY HICKS: Could mean many things for David. It's… it may extend his time in Guantanamo Bay, we're not really sure. We have spoken about this before. By the time it gets to where we want it to get it could be up to three years.

NANCE HAXTON: So it could extend his time, essentially because of all the appeals that could proceed from this decision?

TERRY HICKS: That's right, and also the fact that you just don't go straight into the Supreme Court. I believe that it's gotta go up through the levels again before it's heard. So, yeah, it could be, we always say it could be round about the three years, but who knows, it could be 12-months.

NANCE HAXTON: So, it's bittersweet news for you, in a way?

TERRY HICKS: It is, it is. But it is, um… I think the Americans at the moment, their court system is now starting to look at the way these people have been treated, the way the evidence has been – or so-called evidence that these people give out – how it's… how the evidence is taken off them through interrogating, tortures, stress-induced tactics, all this sort of thing, it won't stand up in a civil court.

NANCE HAXTON: Will you be trying to lobby Philip Ruddock with your lawyer Stephen Kenney again, after this decision, or, what will you do from here?

TERRY HICKS: Ah look, I s'pose there's a lot of ways we can go now, but the Australian Government aren't interested. They've indicated to us that they don't really care whether David stays there for the rest of his life.

You only had to look at the Habib business – I mean it was the Americans that said to the Australians, well, guess what, you've got to take him back regardless. The Australians didn't ask for him to be sent back, the Americans told them that they've got to take him, through lack of evidence.

NANCE HAXTON: Was that particularly difficult for you seeing Habib come back to Australia last week?

TERRY HICKS: Oh, it was, but I think you've gotta look at the overall picture, that there's one back, there's one to go and from our end we're going to be pushing for David to be brought back as well and try and combat the Government's stance that these people are being looked after quite well.

NANCE HAXTON: Have you had any contact with Mr. Habib now that he is back in Australia?

TERRY HICKS: Yeah, I had the opportunity of speaking to Mamdouh Habib on the weekend. We had about a 15-minute conversation. I can't elaborate on what was said, but we had a good talk.

He… it's very hard to judge how he was on the phone. He had his down period, so I don't think he's a really well man, but he did have great delight to say that he'd had contact with David on a couple of occasions.

But as I say, I can't elaborate what was actually said. We're going to have to try and set up a meeting with him down the track to, you know, find out what, and why, and how and see what happens.

NANCE HAXTON: You can't reveal what was said, though, because of the pressures on you regarding evidence, is that why?

TERRY HICKS: No, there's many things I s'pose. I mean, you know, there's… if I elaborate on the conversation, it puts pressure back on Mamdoud Habib, which is not fair. All I can say – it was a private conversation and at this point in time that's how I'd like to leave it. I have, you know, I know what was said, and I feel good about it.

NANCE HAXTON: Was he able to confirm to you some of what you have heard about your son's condition.

TERRY HICKS: I can't say, no.

NANCE HAXTON: So hopefully you'll organize another meeting with Mr Habib down the track?

TERRY HICKS: Yeah, yep. Sometime down the track. Look, when the dust settles and we know what direction they're going, what direction we're going, we'll definitely get together and see what we can piece together out of it.

KAREN PERCY: That's Terry Hicks, father of Guantanamo Bay detainee David Hicks, and he was talking to our reporter Nance Haxton in Adelaide.