Fact File
US: Stop the Guantanamo Circus
Two defence lawyers for Guantanamo detainee David Hicks were barred from representing their client yesterday, highlighting the failure of US military commissions to meet fair trial standards, Human Rights Watch said today. Hicks, the first person to be charged before the military commissions authorized by Congress in 2006, pleaded guilty to a single criminal charge.
Hicks' plea came as the Defence Department announced the transfer of a new detainee to Guantanamo. The Kenyan detainee, taken into custody in Kenya, appears to be a criminal suspect who belongs in civilian criminal court.
“The antics at the Hicks hearing underline the illegitimacy of the Guantanamo tribunals,” said Jennifer Daskal, advocacy director of the US Program at Human Rights Watch and an observer at the hearing.
Hicks' two civilian defence counsel were prevented from representing him as his hearing got underway on March 26. The presiding judge provisionally dismissed the assistant defence counsel, stating that the government was precluded from assigning civilian government employees to represent defendants, even though military commission rules allow the Department of Justice to assign its civilian lawyers to the prosecution. The judge then removed Joshua Dratel, Hicks' long time civilian counsel, because he agreed to abide by all “existent” rules, but refused to agree to “all” rules for the tribunal without first knowing what those rules stated. According to the judge, this ran afoul of civilian counsel's obligations to agree to military regulations governing representation regulations which have not yet been issued.
“Those who doubted these tribunals would be fair have been proved right,” said Daskal. “The commission can't even establish basic rules for lawyers representing the defendant. There's little reason to think that if Hicks had gone to trial he would have received a fair hearing.”
Hicks' sole remaining lawyer, Major Michael Mori, had recently been threatened by the chief prosecutor of the military commission, Col. Morris Davis, who warned that Mori could be held criminally liable under Article 88 of the Uniform Code of Military Justice because he made public criticisms of President Bush's detainee policies. Mori filed a prosecutorial misconduct motion about this matter, but because Hicks pleaded guilty the motion will likely never be heard.
Originally the US government had charged Hicks with attempted murder, among other offences. Hicks pleaded guilty yesterday to one count of material support for terrorism a crime typically prosecuted in civilian courts. Hicks will appear before the military commission for sentencing later this week and could receive a sentence of up to life imprisonment. He is expected to serve most of his term in Australia.
Human Rights Watch called again for the Bush administration to close the Guantanamo Bay detention facility, stating that the remaining detainees should either be charged and tried in federal court, or released. More than 380 detainees at Guantanamo have not been charged with crimes or held in accordance with the laws of war, and have been denied any opportunity for a meaningful review of the basis for their detention in an independent court.
Source: Human Rights Watch.
