Friday, March 02, 2007

Ex Post Facto

Guantanamo prisoner charged after five years in detention for things that weren't crimes when he did them - It doesn't get any more un-American than that.

Even Iran has a Constitutional prohibition against it.

The Guardian reports:
Lawyers and the family of the first Guantánamo Bay inmate likely to face a US military tribunal for alleged terrorism said today that he would not get a fair trial.

More than five years after he was first jailed at Guantánamo Bay, David Hicks, an Australian, was yesterday charged by the Pentagon with providing material support for terrorism,.

Mr Hicks was not charged with attempted murder, as had earlier been recommended by US military prosecutors.

His family and lawyers claimed today that the charges he does face have been tailored to fit his actions and guaranteed he would not get a fair trial.

Mr Hicks's lawyers also confirmed today that he is continuing his attempts to obtain British citizenship - his mother is British - which arguably represents his best chance of getting out of US custody. The Australian government has not pressed for his release.

Stephen Grosz, a British lawyer working on Mr Hicks's case in the UK, told Guardian Unlimited that a document outlining allegations of abuse against his client by US troops had been lodged with a court to try and help his case.

Mr Hicks has claimed he was the victim of torture and brutality at the hands of US troops after he was captured in Afghanistan in late 2001, allegedly while fighting for the Taliban. He claims he was repeatedly beaten and threatened, deprived of sleep and drugged.

He has fought a long legal battle in the UK courts, which ended with senior judges ordering the home secretary to grant Mr Hicks citizenship. However it emerged in January this year that the home secretary, John Reid, had revoked his British citizenship.

Mr Grosz said an appeal against the government's move to deny him citizenship had been lodged with the Special Immigration Appeals Commission (Siac). A two-week hearing will start on May 8, before the US military tribunal begins.

Mr Grosz said the abuse allegations could undermine the US military prosecution because it was based, in part, on admissions Mr Hicks made under interrogation.

Speaking in Australia, Major Michael Mori, Mr Hicks's Pentagon-appointed lawyer, said the decision to drop the attempted murder charge indicated a lack of evidence against his client. The lawyer said the charge against Mr Hicks was unfair because it did not exist at the time of his capture.

"The United States administration - this military commission - is fabricating offences, they're trying to apply them retroactively to David," Maj Mori told Australian television. "It's disgusting that he has spent five years in Guantánamo for made-up charges," he said.

US prosecutors argued the offence did exist at the time of Mr Hicks's capture, though not as a military crime. They said the charge was modified so that Mr Hicks could be charged with it before the military tribunal system.

The argument over the charge underscores a broader debate about the legality of the military tribunal system. Critics claim the system, among other things, denies defendants many legal rights guaranteed under the US constitution.

Mr Hicks's father, Terry Hicks, said the military commission process was unfair because it allowed hearsay evidence and statements made under coercion. "The thing that annoys me is when you have people commit murders, they're out in about eight years, and David could have ... life imprisonment," Terry Hicks said. [see Fair Go For David-website]

Maj Mori said the Australian government, which today expressed confidence in the US military tribunal system, should recognise the process was unfair and demand he be returned home.

The Australian prime minister, John Howard, has refused to ask Washington to repatriate Mr Hicks, saying Australia would have to pass retrospective laws to charge him for alleged terrorist associations.

However, Mr Howard, a staunch US ally and facing elections later this year, has been under increasing political pressure over alleged inaction on Mr Hicks's detention. "We remain very unhappy that it's taken so long for Hicks to be fully charged," Mr Howard told an Australian radio station.

According to the Pentagon, for about a year starting around December 2000, Mr 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.

When it comes to what the Bush administration is doing in our names, nothing has been more damaging to Americans' long and short term interests than the prosecution of the war on terror and the treatment of people caught up in the Bush-Cheney dragnet. Whatever David Hicks did or didn't do is less relevant than what the Bush administration has done with the awesome power that is the United States government.

For instance, would anybody argue that it wasn't a gross conflict of interest to put Ted Olson, then U.S. Solicitor General and husband of Barbara Olson (a passenger on American Airlines Flight 77 on September 11th), in charge of stymieing all challenges to the detentions-without-charge of hundreds of suspects held in Guantanamo Bay? And yet, that's exactly what happened.

The torture of detainees continues, we're no closer to ending the war in Iraq than we were before the midterm elections in November, Democrats are back to a 3-day work week in Congress, and the band plays on.

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