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Australian David Hicks charged with war crimes

Australian David Hicks charged with war crimesThe US Defense Department revamped its initial charges against David M. Hicks, an Australian national, held at Guantanamo Bay for the past five years, in violation of the laws of war.  Mr. Hicks was initially charged with "conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy."  The new charges announced on March 1st, 2007, show the Pentagon dropped the murder charges against Hicks, and indict him only for "providing material support for terrorism".  The Pentagon considers Hicks "a person subject to trial by military commission for violations of the law of war and other offenses".  Mr. Hicks is the first terrorism suspect to face prosecution under the new Manual for Military Commissions (MMC), enacted in January, 2007 in accordance with the Military Commissions Act of 2006.

According to the charge sheet, Hicks traveled to Afghanistan in early 2001 "in order to attend al Qaeda terrorist training camps".  Hicks had previously been associated with the Kosovo Liberation Army (KLA) and the terrorist organization, Lashkar-e Tayyiba (LET).  The US alleges that Hicks had also met with Richard Reid, and Muhammed Atef.  Following the attacks on the US on September 11th, 2001, Hicks had joined al Qaeda forces in various battles against US led forces in Afghanistan.  Hicks was turned over to US authorities by the Northern Alliance in December of 2001. 

Hicks faces charges in violation of the laws of war according to 950v(25), Providing Milittary Support for Terrorism, under the MMC.  The MMC is in part a response to the Supreme Court rule in the case of Hamdan v. Rumsfeld, decided in June 29, 2006.  The Court in Hamdan ruled that the original tribunal systems established for the Guantanamo detainees violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.  The MMC is a response to the ruling in Hamdan and denies habeas claims to Gauntanamo detainees, as well as access to civilian courts.

There is a great deal of contention surrounding this case.  Various manifestations of the tribunal system have denied Gauntanamo detainees the right to habeas claims.  The Supreme Court has repeatedly stated that the government has not observed the letter of the law. In response, the Bush administration has re-codified the Military Commissions to circumnavigate the various Supreme Court rulings (Rasul v. Bush, Hamdan v. Rumsfeld, et al).  The government has proceeded according to a war time setting established under the Authorization Use of Military Force (AUMF), which authorized the President to "use all necessary and appropriate force against persons he determines planned, authorized,  committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons …"  The government contests that "all necessary and appropriate force" warrants its legal standings on commissions and other proceedings in Guantanamo.  The Hamdan ruling, however, overturned the administrations contention that the AUMF trumped Article 15 of the UCMJ, outlining nonjudicial punishment.  Also of issue is the seeming use of ex post facto law in the case of Hicks.  The MMC was outlined after Hicks was detained in 2001 and Hicks has presumably not violated the laws of war as outlined in the MCC since his incarceration at Guantanamo.  Article I, Sections 9 and 10 of the Constitution specifically detail the ineligibility of ex post facto law, however, the US makes reference to the preceding UCMJ and the Articles of War when supporting their claims. 

Hicks is expected on Monday, March 05, 2007, to file a petition for Writ of Certiorari contesting the DC Circuit Courts issuance of a stay on his habeas petition.  Hicks is the first Guantanamo detainee to face formal charges from the US government.



Daniel Graeber

Daniel Graeber is a writer for United Press International covering Iraq, Afghanistan and the broader Levant. He has published works on international and constitutional law pertaining to US terrorism cases and on child soldiers. His first major work, entitled The United States and Israel: The Implications of Alignment, is featured in the text, Strategic Interests in the Middle East: Opposition or Support for US Foreign Policy. He holds a MA in Diplomacy and International Conflict Management from Norwich University, where his focus was international relations theory, international law, and the role of non-state actors.

Areas of Focus:International law; Middle East; Government and Politics; non-state actors