Research Note no. 33 2004–05
Progress of the United States Military Commission trial of David Hicks(1)
Angus Martyn
Law and Bills Digest Section
14 February 2005
What has happened so far
According to the United States (US) Military Commission
charges filed against him,(2) David Hicks is alleged to have
undertaken military training with terrorist groups in Pakistan and Afghanistan
in 2000-01, including al Qaeda. Whilst in Afghanistan he is alleged to
have met Usama Bin Laden and other senior al Qaeda leaders. Following
the invasion of Afghanistan by coalition forces in October 2001, he was
captured by the Afghan Northern Alliance and turned over to US forces.
He has been incarcerated at Guantanamo Bay since early 2002.
In July 2003, David Hicks was listed as eligible for
Military Commission trial. Fourteen other persons have also been declared
eligible, although only four (including Hicks) have been charged and subject
to pre-trial hearings.(3) Three specific charges were laid
against David Hicks in June 2004. Mr Hicks has been accused of:
He has pleaded not guilty to all charges.
In August 2004 pre-trial hearings commenced, followed
by further hearings in November 2004. As part of these hearings, a voir
dire took place, which is the opportunity for the defence and prosecution
teams to question individual Commission members to establish their impartiality.
As a result of defence challenges, two members plus an alternate member
were disqualified, leaving only three members to hear the case.(4)
Subsequent to the August hearings, the defence filed various motions challenging
the jurisdiction of the Commission and the validity of the charges and
trial process under US and international law. The prosecution filed rebuttals.
At the November hearing, the Commission deferred ruling on the motions.
At the request of the defence, it did however postpone the commencement
of the trial until least March 2005.
In November 2004, a US District Court brought down
a decision that may have significant implications for the Military Commission
trials. In Hamdan v Rumsfeld,(5) the court firstly
ruled that a person cannot be tried by a Military Commission until it
is duly established that he or she is not entitled to prisoner of war
(POW) status.(6) The court also found that the Military Commission
rule that allowed for the exclusion of the accused from parts of the trial,
and the withholding of evidence from him, was unlawful.(7)
Thus the court found a Commission trial under these circumstances could
not go ahead. However, in relation to the Hicks trial, Australia
and the US have agreed that no evidence will be introduced that would
require his exclusion, so it is unclear what implications this second
part of the ruling has for Hicks. An appeal by the US government against
the Hamdan decision is due to be heard in March 2005. A number
of other civil suits, including the recently decided In re Guantanamo
Detainees Cases, are challenging the US Government’s ability to detain
persons who have not been charged and brought before the Commission.
The Military Commission
The Commission was created by the US President in his
constitutional capacity as Commander In Chief of the US military. The
relevant Presidential Order does not have any explicit basis in
legislation or other Congressional authorisation.(8) Military
Commissions have not been used by the United States since the 1940s.
Only non-US citizens can be tried by the Commission.
Under the Presidential order, any non-citizens who are current or former
members of al Qaeda or any person that has aided or conspired to commit
acts of international terrorism against the US or its interests are eligible
for trial. Persons knowingly harbouring such al Qaeda members or terrorists
are likewise eligible for trial.
The Commission hearing David Hicks’ case consists of
three senior military officers. The senior Commission member (‘the Presiding
Officer’) is a judge advocate, but the two others have no legal training.
Another key official is the Appointing Authority, who is a retired senior
US military lawyer. Amongst other matters, the Appointing Authority is
the decision-maker on key pre-trial issues such as jurisdiction, validity
of charges and voir dire challenges to Commission members.(9)
Under the Commission rules, evidence can be admitted
if, in the opinion of the Presiding officer,(10) it would have
‘probative value to a reasonable person’.(11) Thus the relatively
strict rules of evidence as known in Australian (and US) law do not apply.(12)
The Commission rules also provide that the accused is presumed innocent
until proven guilty. The standard of proof is the same as for civilian
criminal trials, that is, a Commission member must be convinced beyond
reasonable doubt on the admitted evidence that the accused is guilty.
However, a majority vote is sufficient for a verdict.
Following completion of the trial, the cases will be
reviewed ‘for material errors of law’ by a three-member Review Panel.
Three of the four persons appointed to the Panel ‘pool’ are civilian judges,
albeit commissioned as military officers for the purpose of the Commission
proceedings. Should the Panel find that a material error of law occurred,
the case is to be returned to the Commission, although it is unclear whether
the Panel could direct charges to be dismissed. Once the trial finding
has completed the Review Panel stage, either the President or Secretary
of Defense (if delegated by the President) makes the final decision whether
to approve the finding. A guilty (but not a not guilty) verdict can be
rejected, and a sentence can be reduced, commuted or suspended. Unlike
the US military court martial system, there is no appeal to the civil
court system.
As a result of an agreement between the US and Australia,
the US has committed to certain undertakings for the Hicks trial:
-
conversations between Mr Hicks and his lawyers will not be monitored
-
the prosecution does not intend to rely on evidence that will require
Mr Hicks or his civilian lawyer to be excluded from proceedings
-
subject to security requirements, Mr Hicks’ trial will be open, the
media allowed to attend and Australian officials will be able to observe
proceedings
-
an independent legal expert sanctioned by the Australian Government
will be able to observe the trial/s, and
-
if Mr Hicks is convicted, arrangements will be made for him to serve
any sentence in Australia ‘in accordance with Australian and U.S.
law’.(13)
The charges
As mentioned above, Mr Hicks has been accused of conspiracy
to commit murder, attack civilians and civilian objects and terrorism;
attempted murder; and aiding the enemy.
In brief, the prosecution contend the charges stem
from the following allegations against Mr Hicks:
-
1st charge (conspiracy)—Hicks participated in al Qaeda
military and terrorism training exercises. By doing so, he joined
an enterprise that he knew had the express common purpose to carry
out terrorist attacks against the US.
-
2nd charge (attempted murder)—during the coalition invasion
of Afghanistan, he joined with al Qaeda and Taliban forces in armed
resistance of the invasion.
-
3rd charge (aiding the enemy)—Hicks aided the Taliban
and al Qaeda who are enemies of the US.
Under the Presidential Order, charges against accused
must be based on the existing international laws of war. One of the reasons
for this is that the charges that Hicks and others face largely relate
to their actions before the making of the Presidential order.(14)
Thus if the charges were not based on existing international law, the
order would effectively retrospectively criminalise certain activities.
Although yet to make a detailed reply to these allegations,
a petition put before a United States civil court by Mr Hicks’ defence
team states:
At no time did Hicks engage in any criminal or terrorist
conduct. Nor did he kill, injure, fire upon, or direct fire upon, any
U.S. or Coalition Forces, or the Northern Alliance forces initially
responsible for his seizure. Nor did he attempt any such conduct. He
did not at any time commit any criminal violations, or any violations
of the law of war. Nor did he ever enter into any agreement with anyone
to do so. (15)
Comment on the charges
The conspiracy charge is problematic in that, except
in relation to genocide, there is some doubt as to whether conspiracy
is an offence known to international law. Also, the defence has questioned
whether the charge properly reflects a technical distinction between conspiracy
and common criminal purpose.
In relation to attempted murder, Mr Hicks has
denied that he attempted to kill or injure anyone. If it was demonstrated
that he had tried to do so, presumably it would also have be demonstrated
that he did not have what is termed a soldier’s ‘combat immunity’(16)
or that the attempt was done in a way that was against international law.(17)
The aiding the enemy charge is controversial. The major
issue is whether international law recognises such an offence by a foreigner
living in a foreign land that is not occupied by a third country. Clearly,
Mr Hicks did not legally owe any allegiance to the US (as opposed to Australia)
whilst living in Pakistan or Afghanistan. That Australia was an ally of
the US in the invasion of Afghanistan does not alter this fact.
The relevance of international law to the Hicks Trial
The international body of law known as the ‘laws of
war’ places limits on how war may be waged, and grants protections to,
amongst others, persons captured or interned during war. These protections
cover such matters as a prisoner’s conditions and length of detention,
what (if any) crimes they can be charged with, and minimum standards for
any trial. The laws of war are contained in both international customary
law and treaty law.
The most significant treaties on the laws of war relevant
to the Hicks case are the Third and Fourth 1949 Geneva Conventions (GCIII
and GCIV).(18) These apply during an international armed conflict
between States that are parties to the Conventions.
The US has taken the view that, since al Qaeda is not
a State, its members (as Hicks is alleged to be) are not legally entitled
to the benefit of any of the protections of the Geneva Conventions.(19)
However, the alternative view is that the Conventions do apply
in relation to the invasions of Afghanistan in 2001 and Iraq in 2003,
and persons captured by the United States and its allies in the course
of these international conflicts are, prima facie(20), entitled
to protections under the Geneva Conventions.(21) This latter
view was adopted by the US District Court in Hamdan.(22)
However, Hicks’ legal team have taken the position
that the Geneva Conventions do not apply to Mr Hicks, preferring to rely
on the International Covenant on Civil and Political Rights (ICCPR). By
contrast, the military lawyers prosecuting the Hicks case contend that
the ‘laws of armed conflict’ apply to Mr Hicks, displacing any procedural
rights he may have had with respect to the ICCPR. However, they also seem
to take the view that such laws provide no ‘protective’ rights that may
be enforced by Mr Hicks – only rights specifically contained in US legislation,
or the various rules in the Commission orders, are capable of such enforcement.
At least in respect to GCIII (ICCPR was not argued), the Hamdan
court rejected this view and concluded that GCIII applies and is ‘self-executing’.
Mr Hicks’ lawyers contend that that whilst the ICCPR could not, for example,
form a basis for a damages claim in civil courts, the Commission is nonetheless
bound like any other US ‘criminal tribunal’ to issue a remedy for a violation
of ICCPR safeguards. Mr Hicks’ team consider dismissal of all charges
to be the appropriate remedy.
In relation to trial standards, Article 14 of the ICCPR
states:
In the determination of any criminal charge against him
… everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law … and to be tried
without undue delay … Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a higher tribunal according
to law
Common Article 3 of both GCIII and GC IV require a:
regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
There is likely to be some argument as to whether the
fact that the Military Commissions were created,(23) and their
procedures set out by a Presidential Order rather than Congressional legislation
or resolution, conforms to these requirements. This is likely a matter
for the Appointing Authority to decide.
The same jurisdictional question mark hangs over the
‘delay’ issue. However, as a matter of interest, the Geneva Conventions
generally provide that both POWs and interned civilians that have not
been convicted of any crimes are required to be released as soon as practicable,
which generally means the end of the armed conflict. However, the US considers
the Guantanamo detainees to be prisoners captured in the open-ended ‘war
on terror’, and thus it need only release them when they are no longer
considered to be a threat to US national security. According to this view,
the question of whether there is sufficient evidence to charge the detainees
with crimes is largely irrelevant to the issue of whether they should
continue to be detained.
Will the trial be fair?
The answer to this question cannot really be determined
until the trial proper starts and the review process, if required, also
has a chance to operate. However, it may be useful to consider the initial
report of the Australian independent legal observer to the trial, Mr Lex
Lasry QC.(24) Mr Lasry was nominated to the position by
the Australian Law Council.
After attending the preliminary hearing, Mr Lasry concluded
that there was an ‘unacceptably high risk that there will be a miscarriage
of justice’ in Hicks’ trial. His main concerns were:
-
the lack of independence of the Military Commission from the US Administration
and the war against terror generally
-
the fact that the majority of the Commission members do not have
legal qualifications or experience
-
the lack of an impartial appeal process
-
uncertainty over what sources of evidence are likely to be admitted
and how evidence can tested by cross examination, and
-
the fact that the conspiracy charge ‘is so broad and so easily facilitates
a conviction as to arguably represent a misuse of that charge’.
As mentioned above, three of the six Commission members
have been excluded following voir dire, mainly because of their
involvement in the Afghanistan and Iraq conflicts and/or past statements
about the Guantanamo detainees.
The Australian Government has also since requested
that the US clarify certain matters, such as the admission of evidence.
However, no response from the US has been made public to date.
The lack of legal qualifications and experience in
two of the three remaining Commission members will likely be an issue
given that much of the defence and prosecution motions address complex
technical issues about the application of international law and the interpretation
of US legal precedent.
On the appeal process, the Review Panel is quite separate
from the pool of officers that make up the Military Commission. Panel
members cannot be dismissed from their positions during the review proceedings
except for ‘good cause’. Whether this makes the Panel ‘impartial’ is arguably
a question of subjective opinion. On more procedural issues, whilst the
agreement between the US and Australia provides that the Australian Government
may make submissions to the Review Panel, it is unclear on what grounds
the Panel might exercise its discretion to consider written submissions
by the prosecution and defence, and hear oral arguments. Also, the fact
that the Panel must normally provide its review within 30 days(25)
of it receiving the Commission’s written decision may make it difficult
for the defence to prepare a detailed submission.
What happens now?
The Military Commission trial is scheduled to commence
on15 March. However, the Appointing Authority will first have to rule
on most of the various pre-trial motions submitted to the Commission by
the defence. If the Authority rules in favour of some of the motions,
it might force some charges to be dropped or altered or the Commission
process to be substantially modified.
On the civil front, the appeal on the Hamdan
case is to be heard on 8 March 2005. An attempt by Hamdan’s lawyers
to transfer the case directly to the US Supreme Court was refused by that
court in December 2004. At a minimum, it is likely that two matters will
be considered in the appeal. The first is to what extent international
law applies to the detention and trial of detainees such as Hamdan and
Hicks, and whether such laws can form the basis of any relief from the
detention and Commission process. The second issue is whether the Commission
trial must be consistent with the US Uniform Code of Military Justice
in all major respects. The result of the Hamdan appeal may be critical
to whether David Hicks’ trial proceeds to finality.
Endnotes
1.
The author gratefully acknowledges the comments of Professor Hillary
Charlesworth on a draft of this note. Any errors remain the responsibility
of the author.
2.
The charges are listed at http://www.defenselink.mil/news/Jun2004/d20040610cs.pdf
3.
The Australian Mamdouh Habib had been declared eligible for trial, but
the US has recently repatriated him to Australia without charge on the
basis that Australia ‘accept[s] responsibility for [Habib] and will
work to prevent [him] from engaging in or otherwise supporting terrorist
activities in the future’ (US Department of Defense, Guantanamo Detainees
to be Transferred, Media Release, 11 January 2005). As is the case
for David Hicks, the Australian Government has long conceded that Mamdouh
Habib was unlikely to be successfully prosecuted for his alleged actions
under Australian law – see for example the interview given by the Hon.
Phillip Ruddock, Sunday, 22 February 2004.
4.
The defence unsuccessfully challenged two other members, including the
Presiding Officer.
5.
Civ. No. 04-1519 (JR) (D.D.C.).
6.
The Court decided that the Geneva Convention on POWs (GCIII) applied
to the case. The Court said that the US could not unilaterally decide
a class of persons were not entitled to POW status – it would have to
convene what is known as an ‘Article 5 tribunal’ to decide on individual
cases. If a person was entitled to POW status, it would be contrary
to international law to try them before the Military Commission, since
the Commissions cannot try US military personnel, and such discrimination
would be contrary to the GCIII.
7.
Mainly on the basis that the exclusion/withholding was ‘contrary or
inconsistent’ with the US Uniform Code of Military Justice (UCMJ).
8.
The Presidential Order is at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.
The question of whether the President had the legal power to create
the Commission is an issue being argued in motions before the Commission.
9.
Note that the Appointing Authority reports directly to the Secretary
of Defense.
10. The Presiding Officer
can be overruled by a majority of the Commission members: Military
Commission Order 1, section 6(D)(1).
11. ‘Probative’ means
providing proof of a relevant thing.
12. By way of comparison,
the admissibility of evidence before the International Court of Justice
depends largely on a weighing up of both its probative value
on the one hand, and its prejudicial value with respect to fair trial
or evaluation of a witness’ testimony, on the other – Rome Statute,
Article 69(4).
13. US Department of
Defense, US and Australia announce agreements on Guantanamo
detainees, Media Release, 23 November 2003.
14. The order was made
on 12 November 2001.
15. Hicks v Bush
et al. US District Court of the District of Columbia Civ. Act. No.1:02-cv-00299-CKK
16. This immunity means
that, for example, where a soldier kills an enemy in combat, they cannot
be prosecuted for that act – it is lawful killing.
17. For example, the
attempted killing of a prisoner.
18. These treaties,
which have almost universal membership, also represent international
customary law.
19. US Presidential
Memo, 7 February 2002. Note that if David Hicks is considered
to be a captured civilian rather than a prisoner of war, it is arguable
that he is not entitled to the protections contained in GCIV because
he is a national of one of the States that invaded Afghanistan: Article
4, GCIV.
20. See the comment
in endnote 19.
21. These protections
apply even if they are accused of ‘crimes’ committed before the commencement
of the relevant conflicts that invoke the provisions of the Conventions.
22. This view was apparently
shared by the US Department of State – Memo of the Department of
State Legal Adviser, 2 February 2002.
23. As opposed to authorised.
24. The Report is available at http://www.lawcouncil.asn.au/read/2004/2403092446.
25. This can be extended.
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