The International Fight for Hicks


Guantánamo Bay's Camp Six, built by Halliburton subsidiary Kellogg, Brown & Root, opened in late 2006. According to its designer, John VanNatta, the US$37.9 million, 200-cell complex is oriented to 'long-term incarceration' and 'rehabilitation.' Today, the prison houses confessed al-Qaeda plotter Khalid Shaikh Mohammed and the 13 other 'high value' detainees transferred from CIA black sites in October 2006, plus dozens of other inmates including David Hicks.

US lawyer Sabin Willett, who represents 13 Chinese detainees at Camp Six, recently visited the new complex. He described it as a 'dungeon above the ground.' Willett found at Camp Six 'a degree of cruelty universally condemned under all bodies of law related to incarceration.' Inmates are housed in solid metal cells that contain only a bed, sink, toilet and small mirror. The cells do not permit any natural air or light. Thin windows on and next to the cell doors look out to a corridor where military police are stationed 24 hours per day. The guards watch the detainees while they sleep, eat and use the toilet.

David McLeod, Hicks's Australian solicitor, has visited Hicks in Cuba five times. 'Usually, the first day we see him, he is concentrated on complaints about meals, amounts of toilet paper he's been given, lack of access to medical facilities. He's preoccupied with just the day-to-day existence.' Hicks recently told his lawyers about being forcibly sedated soon after their last visit an injection that left him incapacitated for over 24 hours. McLeod said that Hicks appears increasingly disheveled and confused unable to grasp the larger issues at stake. 'He is in his own little world,' he said.

Outside Camp Six, an array of legal challenges swirl around Hicks. Most pressing is his upcoming arraignment on charges of 'material support for terrorism.' This is a retroactive charge created in October 2006 under the US Military Commission Act (MCA). The law carries, at maximum, a life sentence for anyone found guilty of providing 'personnel (one or more individuals who may be or include oneself)' to an 'international terrorist organisation engaged in hostilities against the United States.' In Hicks's case, US officials have stated prosecutors will seek 20 years time that officials have pledged Hicks could serve out in Australia if convicted.

A guilty plea and expedited sentencing could have had Hicks home before the upcoming Federal elections. Instead, Hicks's legal team has decided to fight on. His Pentagon appointed lawyer, Major Michael Mori, has indicated Hicks will plead 'not guilty' at his 26 March arraignment. That is, of course, if the arraignment is even held as scheduled.

Last week, Hicks' legal team applied for an injunction to postpone the arraignment until the US Supreme Court decides if the Military Commissions Act is unconstitutional. In particular, critics have alleged that the MCA's habeas corpus-stripping provision which holds that 'unlawful enemy combatants' like Hicks, cannot challenge 'any aspect of the detention, transfer, treatment, trial, or conditions of detention' in any US court patently violates the US Constitution's suspension clause. This clause holds that habeas corpus the right to be brought before a judge to determine if one's detention is lawful, be suspended only in times of 'invasion' or 'rebellion.'

The US Supreme Court will consider whether or not to hear the MCA habeas challenge on 30 March 2007. If the court takes the case, oral arguments would be held in May while a decision could be reached by late June or early July 2007.

The Supreme Court has already ruled twice against the Bush Administration's rules and policies at Guantánamo Bay. In 2004, the Supreme Court found in Rasul v Bush that detainees have a right to challenge their detentions in US courts. In 2006, the Court found in Hamdan v Rumsfeld that the military commissions patently violated the Geneva Conventions because they do not constitute a 'court affording all the judicial guarantees which are recognised as indispensable by civilised peoples.'

The Military Commissions Act itself was the Bush Administration's response to these rulings. Passed in the last days of the Republican-controlled Congress, the MCA stripped habeas relief from detainees and reinstituted the military tribunals that allow secret evidence and hearsay. Further, the MCA legalised an array of coercive interrogation methods like total isolation, sleep deprivation, induced hypothermia and waterboarding; plus stipulated that evidence drawn from these tortures was admissible in tribunals provided it was extracted prior to 30 December 2005 the day marking passage of the US Detainee Treatment Act.

If Hicks' arraignment is not postponed, his military tribunal will begin within the next 120 days. Due to the rules of the commissions, plus the nature of Hicks' catch-all retroactive charge, conviction is assured.

Thanks to Scratch

Statements Hicks has made to interrogators under duress do not help his case either. After 15 months of detention at Guantánamo bay, Hicks signed the following statement:

I believe that al-Qaeda camps provided a great opportunity for Muslims like myself from all over the world to train for military operations and jihad. I knew after six months that I was receiving training from al-Qaeda, who had declared war on numerous countries and peoples.

Hicks, by his own account, crossed over to Afghanistan after 9/11. According to Hicks (as told to Australian Federal Police at Guantánamo Bay):

I was there for about a week. We were under Taliban, basically. Everyone there, including al-Qaeda people themselves, were under Taliban … Our job was just to watch the tank. I didn't see myself as assisting them, the al-Qaeda. Basically, I was stuck where I was.

These statements and perhaps others like them that remain classified will be at the heart of the US Government's case against Hicks.

Apart from the Supreme Court challenge which, if successful, could give Hicks a less biased venue in the US Federal Court system to challenge his detention there are two other avenues Hicks can take to circumvent conviction.

Recently, an Australian Federal Court judge in Sydney approved a suit brought on behalf of Hicks against the Federal Government. The suit names Attorney-General Philip Ruddock and Foreign Minister Alexander Downer for failing to protect the rights of an Australian citizen. If successful, the challenge aims to force the Government to ask the US to return Hicks.

The basis of the suit relies on the fact that the United Kingdom formally requested, and was granted, full repatriation of nine British detainees held at Guantánamo Bay. Further, John Howard has claimed that he could get Hicks back if he requested it but he simply chooses not to do so. While a formal date has yet to be fixed, it is likely the Federal Court suit will begin in the next several weeks.

Meanwhile, in the United Kingdom, lawyers representing Hicks have re-introduced a bid to secure Hicks's UK citizenship (his mother is English). The rationale behind this move is that as a UK citizen, the British Government would be obligated to request Hicks be returned as Blair's Government did nine times previously.

While these issues play out, Hicks remains locked away in Camp Six. According to David McLeod, Hicks 'has to lie on the floor, the air conditioning is kept on full, he has very few clothes, and he shivers All his letters and cards have been taken away from him and he's not receiving any.'

Moazzam Begg, a former UK detainee who spoke with Hicks in Cuba, recounted his poor mental state:

One of the things he said to me is, 'Please, when you get out from here, please tell people that my sanity is at risk here.' He used to tell me quite often that he felt like just banging his head so hard against the walls that he just ends up killing himself.

The clock is now ticking. Hicks' sanity and freedom are at stake.

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