Detainees’ defense lawyers seek dismissal of charges

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November 01, 2004

By Paisley Dodds
Associated Press


GUANTANAMO BAY NAVAL STATION, Cuba — In a challenge that could make or break upcoming trials by a special military commission, defense lawyers are moving to dismiss terrorism charges against Osama bin Laden’s chauffeur and an Australian cowboy who joined the Taliban.

Hearings on the motions beginning Monday will test the boundaries of international law on the eve of U.S. elections that could ultimately change the mission that has detained some 550 terror suspects from more than 40 countries in this U.S. military base in Cuba, most without access to lawyers or official charges.

Only four of the detainees, classified as enemy combatants, have been charged with war crimes and face trials before a special three-member military panel starting in December.

The first pre-trial hearing is for David Hicks, an Australian cowboy who joined Afghanistan’s ousted Taliban regime. He is charged with attempted murder, aiding the enemy and conspiracy to attack civilians, commit terrorism and destroy property. Hicks has pleaded innocent.

Before his Jan. 11 trial can start, the panel must hear a series of motions disputing the charges and challenging his nearly three-year detention at the remote U.S outpost.

President Bush ordered the military commissions about three years ago, the first time the United States ordered such trials since World War II.

But defense lawyers contend the U.S. military can’t charge someone for a crime they committed before the president ordered the commissions. They also allege that bin Laden’s al-Qaida organization isn’t a state, so international laws of war don’t apply.

If Democratic Sen. John Kerry wins Tuesday’s election, he could abandon the presidential order. Kerry’s running mate, John Edwards, has said he would scrap the commissions and establish a new system modeled on established military courts-martial.

If defense pre-trial motions are accepted, it also could throw the whole process into turmoil and possibly disrupt or postpone further trials at Guantanamo.

“There won’t be a lot of drama in these hearings but the questions get to the heart of whether these commissions can be fair,” said James Ross of New York-based Human Rights Watch, one of the groups of international observers monitoring the hearings.

Defense attorneys say Hicks has been denied a right enshrined in the U.S. constitution to a speedy trial, unfettered access to attorneys and the right to fair proceedings. They also challenged a rule prohibiting him from being present for classified parts of his trial, saying he can’t properly defend himself unless he knows the allegations.

Hicks was one of the first prisoners to arrive at the outpost in January of 2002. He first appeared before the commissions in late August.

Prosecutors contend Hicks fought with the Taliban and took up arms against U.S. and coalition forces. Because he and the other prisoners here are considered enemy combatants — a classification giving them fewer legal protections than prisoners of war — prosecutors argue he isn’t entitled to the same rights.

If the panel denies the motions, there is no clear appeals process, another point of contention for Hicks’ attorneys who say they have warned their 29-year-old client that he faces the prospect of an unfair trial.

“If the motions are granted, the process would stop,” Hicks’ military-appointed lawyer, Marine Corps Maj. Michael Mori, said. “But they’re trying every roadblock they can.”

“(The hearings are) where the defense is challenging every aspect of the commission,” said Lt. Susan McGarvey, a government spokeswoman for the commissions.

The panel members, who were given the motions on Saturday night, have just started reading the motions, McGarvey said.

The second week of motions hearings scheduled to begin Saturday is for Salim Ahmed Hamdan, a 34-year-old Yemeni who has said he earned a pittance driving bin Laden but denies supporting terrorism.

He is charged with conspiracy, a charge his attorney says the commission is not authorized to hear.

“Conspiracy is not part of the law of war,” said attorney Lt. Cmdr. Charlie Swift, who is also concerned about Hamdan’s mental health.

Swift has filed dozens of motions including an argument that having ties to al-Qaida does not constitute a crime.

Defense attorneys also argue that they need experts to help the panel understand difficult questions of international law and the law of war. Prosecutors object, saying they have not shown the need. The panel started with five members and one alternate — only the presiding officer has legal experience — but three were dismissed after challenges to their impartiality. One was involved in detainee operations in Afghanistan. Another lost a reservist in his unit when he was working as a firefighter in the Sept. 11 attacks in New York. A third was unfamiliar with all the Geneva Conventions governing prisoners taken in international conflict.