From the February 2005 Idaho Observer:
Hicks case illuminates Bush administration concept of due process
by Greg Szymanski
From Abu Ghraib to Guantanamo, to White House memos justifying the torture of Bush administration "war on terror" prisoners, a very horrible pattern is emerging: Those arbitrarily determined to be "terrorists" by the Bush administration will be subjected to whatever amount of pain, humiliation and deprivation their captors decide to inflict. Further evidence that the Bush administration has found the bottom of the slippery slope of due process is inferred from how it categorizes captives to keep them outside the protections of domestic laws and international treaties regarding the treatment of prisoners.
The trial of Australian David Hicks, charged with terrorism offenses and held at Guantanamo Bay, has been delayed until March 15, giving defense attorneys a chance to interview witnesses and review evidence.
Previously scheduled for January, attorneys were allowed to prepare their case since Hicks had been denied access to legal counsel until officially charged in June 2003. Attorneys also complain the military tribunal has been uncooperative by concealing evidence and not providing a complete witness list.
Hicks, 29, held in solitary confinement for the past 22 months, initially was captured by Northern Alliance forces in Afghanistan in December 2001. He was then turned over to U.S Forces and has been held at the military base in Cuba since January 2002.
Hicks is charged with conspiracy, attempted murder and aiding the enemy.
During his long confinement, he has complained of inhumane treatment, telling his family and attorneys that he was tortured on a U.S. Navy ship before being imprisoned. British prisoners released this year from Guantanamo, also on the navy ship with Hicks, have confirmed his story.
In a recent letter to his father, Terry, he said he was "losing his sanity" from his legs being chained to the ground and the months of solitary confinement in a tiny cell.
"I spend an average of 350 hours by myself between visits. I can no longer picture what exists outside of Camp Echo. My entire life has become this tiny room and everything else is no longer reality. I feel as if I am teetering on the edge of losing my sanity after being in such a long ordeal," he wrote in a recent letter to his father.
He also mentioned military authorities conduct all interviews under brutal interrogation conditions with him chained to the floor.
"The military is intent on keeping me depressed and I am presently suffering from serious mood swings," he added.
However, after Hicks was given a postponed trial date to strengthen his case, Bush administration and Australian government officials were quick to point out how this indicated he was being treated fairly, ignoring questions concerning prison conditions and treatment.
A spokesman for Australia’s Attorney General Phillip Ruddock said: "This shows the responsiveness of the system and another indication he is being treated fairly and the system is working."
Critics observing the military proceedings disagree, calling both the claims from American and Australian officials as "outright lies." They claim the proceedings looked more like a "kangaroo court" than a court of law.
They also point out that two of the three commissioners heading the proceedings have no legal training or experience, claiming they have less legal knowledge than most first year law students.
"The so-called commissioners are struggling to grasp basic legal concepts and the hearings in the Hicks case resembled an introductory law class," said James Ross, a senior legal advisor for a judicial watchdog group called Human Rights Watch.
"They are unfamiliar with the laws of war, including a legal meaning of basic concepts and the difference between an international and non-international armed conflict."
Although lacking legal expertise, Ross said the commissioners were quick to dismiss defense attorneys’ legal motions, sometimes using crude and informal language.
He said that motions to call six expert witnesses, including Antonio Cassese, former judge at the International Criminal Tribunal for former Yugoslavia and Michael Schmitt from the U.S. Defense Department, were categorically dismissed without proper legal reasoning.
"The commissioners then decided to use experts only of their special choosing without consideration for the defense," he added.
Despite the obvious biased forum, defense attorneys have attacked Bush administration claims that U.S. laws do not apply to Guantanamo prisoners, saying double standards are being used to try other people who have been accused of the exact same crimes.
Critics have long argued that the tribunal used in the Hicks case violates the U.S. Constitution, American military law and basic legal rights established over centuries.
They say the U.S. government is indiscriminately defining the Guantanamo prisoners as "enemy combatants" in order to by-pass the rights given to prisoners of war by the Geneva Convention.
Under present terms defined by the Bush administration, prisoners have no access to a civil court of appeal and if found guilty, still can be held indefinitely by the military.
The rules of the tribunal hearing the Hicks' case can also allow hearsay evidence and evidence gained through interrogations by torture. The only avenue of appeal against Guantanamo Bay tribunals is the President of the United States.
Hicks has been barred from his own pre-trial hearings. The government claims he should not be privy to "classified information."
Defense attorneys, as legally absurd as it sounds, have also been barred from communicating with their client at this stage based on the same so-called "classified" information.
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