Australian Detainee Arraigned Before Military Commission

By Sgt. Sara Wood, USA
American Forces Press Service

March 26, 2007 – Preliminary hearings began here today in the case of an Australian detainee captured in Afghanistan in 2001, the first detainee to be charged under the Military Commissions Act of 2006. David Hicks, who became known as the "Australian Taliban" following his capture, is charged with providing material support for terrorism based on his alleged participation in al Qaeda training camps and military campaigns. Hicks declined the reading of his charges in the hearing and reserved the right to enter a plea.

Marine Col. Ralph Kohlmann, the military judge assigned to the case, began the hearing by removing two of Hicks's civilian defense attorneys, Rebecca Snyder and Joshua Draytell. Kohlmann said that because Snyder is a civilian employee of the Defense Department, she is not qualified to serve as the assistant detailed defense counsel under the rules for military commissions and United States Code. Snyder is an officer in the U.S. Naval Reserve, and Kohlmann suggested she pursue getting active-duty orders to serve as the detailed defense counsel.

Draytell, Hicks' civilian attorney, was removed because he refused to sign an agreement stating that he would comply with all applicable rules and regulations for the commissions. Draytell did sign an agreement, but with revised language stating he would comply with all "existing" rules and regulations. He argued this was because at the time he was asked to sign the agreement, the regulations for civilian attorneys in military commissions had not been created by the Defense Department, and he didn't want to sign anything prematurely.

"I cannot sign a document that provides a blank check that draws on my ethical obligations as a lawyer," Draytell said.

Kohlmann advised Hicks that Snyder and Draytell could remain at the defense table as advisors, with the possibility of being recognized as defense counsel at a later date, after further litigation. Hicks declined the opportunity to keep them at the table. Marine Maj. Michael Mori, Hicks's detailed military defense counsel, remained at the table.

"I'm shocked, because I just lost another lawyer," Hicks said after learning Draytell could not participate in the case. "What's the point of him sitting here if he's not representing me? One's gone, now another one's gone, now I'm left with poor Mr. Mori."

This is the third time Hicks has faced legal proceedings at Guantanamo Bay. Proceedings that began in Hicks's case in August 2004 were halted by an order from a district court judge in November 2004. A three-judge federal appeals court panel ruled in July 2005 that the commissions were legal and could go forward. However, preliminary hearings that were scheduled to begin in November 2005 were halted pending the Supreme Court's decision in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden who challenged his detention at Guantanamo Bay.

The Supreme Court ruled in June 2006 that military commissions for detainees charged with war crimes would violate the Uniform Code of Military Justice as well as four Geneva Conventions. In response, the Bush administration and Congress crafted the Military Commissions Act of 2006, which allows the United States to try unlawful enemy combatants under new procedures.

Hicks appeared at today's hearing in his tan detainee uniform, with long hair that his civilian attorney consultant said is used to shield his eyes from the light at night. He appeared composed throughout the hearing, at one point joking with Kohlmann about his Australian accent.

"If you don't understand what I say sometimes, it's my language. It's Australian English, sir. There are some differences," Hicks said when Kohlmann inquired about his need for a translator.

Before Kohlmann removed Hicks's civilian attorneys, Hicks said he would like to acquire more defense attorneys for his case, to balance the prosecution team.

According to documents released by the Defense Department, Hicks, who was born in Adelaide, Australia, was a member of two terrorist organizations in Albania and Pakistan in 1999. In 2001, Hicks traveled to Afghanistan and attended al Qaeda training camps. After the terrorist attacks of Sept. 11, 2001, Hicks is alleged to have joined al Qaeda forces at Kandahar Airport. After a few weeks at the airport, Hicks traveled to the front lines in Konduz, Afghanistan, to fight coalition forces. He was captured by Northern Alliance forces in December 2001 while attempting to flee to Pakistan.

The maximum penalty Hicks will face if convicted is life in prison, Air Force Col. Morris Davis, chief prosecutor for the Office of Military Commissions, told reporters yesterday. However, Davis said the prosecution does not plan to argue for a life sentence. Past cases with similar charges, such as that of John Walker Lindh, the American citizen who plead guilty in 2002 to serving in the Taliban and carrying weapons, have resulted in sentences of about 20 years, he said.

Hicks's father, Terry, and sister, Stephanie, traveled from Australia to attend today's hearing. They visited with Hicks for about two hours before the hearing, and were expected to spend time with him afterward.

Kohlmann did not announce the trial schedule today, but under the new rules for military commissions, the trial must start within 120 days after the charges are presented to the detainee, which happened March 1 in Hicks's case .

This article sponsored by military and police personnel who have written books as well as criminal justice online leadership.