The International Fight for Hicks

Below is a snippet of a story I did this week for New Matilda-- a popular Australian online politics/culture mag. Check out the full version here.

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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.