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Australian detainee case challenges tribunals

WASHINGTON — A former Australian kangaroo skinner captured in Afghanistan in the early days of the U.S. war on terrorism could end up being the case that prompts the Supreme Court to decide whether the latest system for trying detainees is constitutional.

The Bush administration on Thursday charged David Hicks, 31, with providing material support for terrorism, which carries a maximum sentence of lifetime imprisonment. Hicks is the first detainee at the U.S. prison at Guantanamo Bay, Cuba, to be charged under a law enacted late last year that re-established special military commissions to try the suspects.

President Bush had set up an earlier system of military tribunals that the Supreme Court invalidated because it lacked congressional approval and violated international agreements. The Republican-controlled Congress renewed a similar version of the system before last fall’s elections that gave Democrats control, and many Democrats and other critics of the tribunals have vowed to challenge its constitutionality, as well.

Proponents of the new system say they expect the federal courts to rule in favor of the military commissions.

“I trust the system to judge Mr. Hicks fairly,” said Sen. Lindsey Graham, R-S.C., a co-sponsor of the commissions legislation. “It’s long overdue this case be brought forward.”

Critics said the commissions, which have fewer legal protections for defendants than civilian courts, went too far.

“It all seems to be an intermingling of politics and pressure,” said Jumana Musa, advocacy director for Amnesty International. “But none of it screams to me to be in the interest of justice.”

Australia, a steadfast U.S. ally in the war on terrorism, has been pressuring the Bush administration to send Hicks back to his native country. But that apparently wouldn’t come until after a trial, at Guantanamo.

Last month, Sandra Hodgkinson, the State Department’s deputy director for war crimes issues, told reporters that “it’s certainly believed that Mr. Hicks may be able to carry out his incarceration, after the appeals process is complete, in Australia.”

There are an estimated 385 detainees remaining at the Guantanamo prison in Cuba. None of the men held there on suspicion of links to al-Qaida or the Taliban has ever gone to trial.

Hicks was among 10 detainees who had been charged with crimes under the earlier law that the court struck down. Then, he had been charged with conspiracy, attempted murder and aiding the enemy.

Another of the 10 was Salim Ahmed Hamdan of Yemen, whose case ended up being the one the Supreme Court used to throw out the previous tribunal system.

According to Pentagon documents, Hicks went to Afghanistan in January 2001 to attend al-Qaida terrorist training camps.

The Pentagon says that for about a year starting around December 2000, Hicks provided “support or resources to be used in preparation for, or in carrying out, an act of terrorism” and that he “knew or intended” for the support to be used for terrorism.

Last month, military prosecutors recommended that Hicks be charged with attempted murder for fighting coalition forces in Afghanistan and with providing support for terrorism.

On Thursday, Susan Crawford, the head of the military commissions, formally charged Hicks only with providing material support for terrorism.

The Pentagon announcement did not explain why the attempted murder charge was dropped. But a package of talking points written for officials to answer questions on the announcement suggested Crawford didn’t believe the evidence warranted it.

Hicks’ Pentagon-appointed lawyer, Marine Corps Maj. Michael Mori, said in Australia that the charge of providing support for terrorism was a fabrication that had not previously existed under the laws of war, and he said Australian officials should not accept it.

“The Australians should demand that David be treated the same as an American citizen and that retrospective legislation should not be applied to him and he should be returned,” Mori told Australian Broadcasting Corp. radio.

The military eventually hopes to charge 60 to 80 of the Guantanamo detainees. Once formal charges are filed, a timetable requires preliminary hearings within 30 days and the start of a jury trial within 120 days at Guantanamo.

Australian Prime Minister John Howard discussed Hicks’ case with Vice President Dick Cheney when Cheney visited Australia last month. Under growing public pressure and with elections due later this year, Howard has begun pushing U.S. officials to deal with Hicks’ case more quickly.

Associated Press writer Pauline Jelinek contributed to this report.