- The Washington Times - Sunday, November 7, 2004

U.S. NAVAL BASE GUANTANAMO BAY, Cuba — A panel of military officers here has postponed the trial of Australian-born terror suspect David M. Hicks until March to give his defense team more time to review evidence and interview witnesses.

The delay was among several key developments last week at the war-crimes tribunal, which was designed and authorized by the Bush administration after the September 11 attacks as a way to try terror suspects, called “enemy combatants,” without using conventional federal courts.

The Defense Department acknowledged abuses of Guantanamo detainees Thursday, and on Friday, the Pentagon-appointed defense lawyer for another suspect charged with conspiracy to commit war crimes announced plans to challenge the constitutionality of the war-crimes tribunal in D.C. federal court.

Air Force Lt. Col. Sharon Shaffer said civilian lawyers in the District will file charges against President Bush, Defense Secretary Donald H. Rumsfeld and several senior military officers on behalf of Ibrahim Ahmed Mahmoud al Qosi, a Sudanese accused of serving as an al Qaeda paymaster.

Col. Shaffer said the tribunal is making “up rules on the fly” and is invalid because the lines between the Pentagon authorities overseeing it and the prosecutors appointed to seek convictions of suspects are “blurred.” Further, she said al Qosi has been abused while in U.S. military custody.

Hicks, 29, and al Qosi, 44, are among the 550 detainees held at Guantanamo, the vast majority of whom were captured more than two years ago in Afghanistan during the war to topple the al Qaeda-supporting Taliban regime.

Preliminary motions begin tomorrow in the case of a third suspect, Salim Ahmed Hamdan, 34, a Yemeni who once served as a chauffeur for Osama bin Laden. Proceedings for a fourth, Ali Hamza Ahmad Sulayman al Bahlul, 33, also of Yemen, were delayed after he admitted involvement in al Qaeda and requested to serve as his own lawyer when the tribunals open in August 2005.

The war-crimes tribunals, formally called “military commissions,” mark the first time since World War II that the United States has used such a system. Last week’s developments focused on preliminary motions in the case of Hicks, a convert to Islam accused of taking up arms against U.S. forces.

The Pentagon says he fought in Bosnia-Herzegovina in the early-1990s and later associated with al Qaeda in Afghanistan, at one point consulting bin Laden about translating terrorist training. He has pleaded not guilty to attempted murder, aiding the enemy and conspiracy to attack civilians, committing terrorism and destroying property.

The three-member panel of officers overseeing the tribunal agreed to postpone its start when Hicks’ lawyers said more time was needed to prepare a defense spanning “a huge swath of geography ?? at least 15 years and five continents.”

The defense lawyers said time was needed to speak with 43 government investigators who either interviewed Hicks, or were involved in the investigation that led to his charges. They also said prosecutors have agreed to provide a “face book” of other Guantanamo detainees who may have information relevant to the case.

In other motions, prosecutors and defense attorneys argued over what legal precedents, such as those set by U.S. law and by the Geneva Conventions, will apply when the tribunal begins.

Marine Corps Maj. Michael Mori, Hicks’ Pentagon-appointed defense attorney, argued that precedents had been set by past international war-crimes tribunals. He said such charges as “conspiracy” to commit terrorism would not stand up in past tribunals.

Prosecutors disagreed, saying terrorism has long been an offense under international law. Prosecutor Marine Lt. Col. Kurt Brubaker also said that while “the United States is bound by the Geneva Conventions … al Qaeda is not protected by them.”

While officers presiding over the case deferred ruling on most motions, remarks made by one member of the panel may shed light on the extent to which international law will carry any weight in the tribunal.

Panel member Air Force Col. Christopher Bogdan told the defense team that its “underlying assumption is that our commission is based on international law.”

“What if international laws haven’t caught up with the times?” Col. Bogdan asked. “The international laws are based on the past … based on a time when there were no non-state actors.”

The panel also denied motions by the defense to allow experts’ testimony on international law.

Human rights advocates called the denial unfortunate and said the panel members not only appeared to lack understanding of international law, but also were dismissive toward it.

“In addition to the commission’s apparent confusion with basic legal concepts, the panel [members] were dismissive when the defense team tried to explain the issues,” said James Ross, who was at Guantanamo representing New York-based Human Rights Watch.

Hicks wore a blue-gray suit and red tie as he sat calmly in the courtroom through the hours of arguments. He has been called the Australian John Walker Lindh, referring to the young American captured with the Taliban around the same time as Hicks.

However, Lindh’s case was resolved in 2002 through a plea deal in U.S. federal court in Alexandria. He is now serving 20 years in federal prison in California.

Hicks was arraigned before the war-crimes tribunal in August. At the time, he was allowed a short personal visit with his father, who made headlines after the visit by announcing his son was tortured while in U.S. custody in Afghanistan before being brought to Guantanamo.

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