Michael Otterman's powerful book, 
Michael Otterman is currently a Visiting Scholar at the Centre for Peace and Conflict Studies at the University of Sydney, as well as an award-winning journalist and filmmaker.
Sunday, February 04, 2007
Hicks is Charged (Again)
Tomorrow, I will be in the ACT to cover the 'Canberra Convergence for David Hicks' rally at the Parliament. Last Friday, the Pentagon announced new charges against Hicks. They are "providing material support for terrorism" and "attempted murder in violation of the law of war". At first glance, it seems like a conviction is likely only the first charge-- a retroactive law created in October 2006 under the Military Commissions Act.
The second part of the charge is untenable. I will elaborate my view on a later post, but let me say now there is no firm evidence that Hicks "attempted murder" on the battlefield in Afghanistan where he was captured. As Major Michael Mori, Hick's Pentagon appointed lawyer, told the Sydney Morning Herald: "The old charge of attempted murder has reappeared even after the chief prosecutor has admitted to the ABC that there is no evidence that David shot at anyone in Afghanistan".
The problem for Hicks lies in the first charge: "providing material support for terrorism." A full description of this charge can be found in the new Pentagon military commissions manual:
Conviction on this charge is more likely. After 15 months of detention at Guantanamo, 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." Although this confession was drawn by coercive means at Guantanamo, the new rules for military commissions allows statements made under coercion. Hicks, by his own account, crossed over to Afghanistan after 9/11. According to Hicks (as told to Australian Federal Police at Guantanamo): "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." (Source here)
These statements-- and perhaps others like them that remain classified-- will be at the heart of the US government's case against Hicks. Australian Prime Minister John Howard has come out in favor of the new charges-- even though one is retrospective. Howard said yesterday while "we do not believe the passage of retrospective criminal law in this country is appropriate ... once somebody goes overseas they lose the protection of Australian law".
The second part of the charge is untenable. I will elaborate my view on a later post, but let me say now there is no firm evidence that Hicks "attempted murder" on the battlefield in Afghanistan where he was captured. As Major Michael Mori, Hick's Pentagon appointed lawyer, told the Sydney Morning Herald: "The old charge of attempted murder has reappeared even after the chief prosecutor has admitted to the ABC that there is no evidence that David shot at anyone in Afghanistan".
The problem for Hicks lies in the first charge: "providing material support for terrorism." A full description of this charge can be found in the new Pentagon military commissions manual:
PROVIDING MATERIAL SUPPORT FOR TERRORISM
a. Text.
“Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.”
b. Elements.
The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B: A.
(1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24));
(2) The accused knew or intended that the material support or resources were to be used
for those purposes; and
(3) The conduct took place in the context of and was associated with an armed conflict.
or
B. (1) The accused provided material support or resources to an international terrorist
organization engaged in hostilities against the United States;
(2) The accused intended to provide such material support or resources to such an
international terrorist organization;
(3) The accused knew that such organization has engaged or engages in terrorism; and
(4) The conduct took place in the context of and was associated with an armed conflict.
c. Definition. “Material support or resources” means any property, tangible or intangible, or
service, including currency or monetary instruments or financial securities, financial services,
lodging, training, expert advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or
religious materials.
d. Maximum Punishment. Confinement for life.
Conviction on this charge is more likely. After 15 months of detention at Guantanamo, 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." Although this confession was drawn by coercive means at Guantanamo, the new rules for military commissions allows statements made under coercion. Hicks, by his own account, crossed over to Afghanistan after 9/11. According to Hicks (as told to Australian Federal Police at Guantanamo): "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." (Source here)
These statements-- and perhaps others like them that remain classified-- will be at the heart of the US government's case against Hicks. Australian Prime Minister John Howard has come out in favor of the new charges-- even though one is retrospective. Howard said yesterday while "we do not believe the passage of retrospective criminal law in this country is appropriate ... once somebody goes overseas they lose the protection of Australian law".