Military Commission Charges Referred

The Defense Department has announced that charges were referred to a military commission in the case of Mohammed Jawad by the Convening Authority, Office of Military Commissions, Susan J. Crawford.

The referral included one charge with three specifications of attempted murder in violation of the law of war and one charge with three specifications of intentionally causing serious bodily injury with three specifications against Jawad, a non-capital case.

It is alleged that the accused attempted to commit murder and cause serious bodily injury on or about Dec. 17, 2002, by throwing a hand grenade into the passenger compartment of a vehicle transporting U.S. Army Sgt. 1st Class Michael Lyons, U.S. Army Sgt. 1st Class Christopher Martin and their interpreter, Afghani citizen Assadullah Khan Omerk, with the intent to kill them.

In accordance with the Military Commissions Act of 2006 and the Manual for Military Commissions, Jawad will be brought before the military trial judge for arraignment within 30 days of the service of charges. Within 120 days of the referred charges being served upon the accused, the military trial judge will assemble the military commission. Assembly is the procedural step that usually occurs when all parties, including the members, are present and sworn, and the judge announces on the record that the commission is now assembled. The military judge will contact attorneys in the case to set an initial trial schedule.

Brig. Gen. Thomas Hartmann, legal advisor to the convening authority, has stated that these war crime proceedings will continue to move forward in open trials and with more due process than any alleged war criminal has historically received. Military Commission procedures include the presumption of innocence; a burden of proof on the government to prove guilt beyond a reasonable doubt; the right to remain silent; the right to present evidence and a prohibition from drawing any adverse inference if an accused does not testify or present any evidence; and representation by a military defense counsel free of charge with the option to retain civilian counsel at no expense to the U.S. government.

The referred charges are only allegations that the accused has committed a war crime under the Military Commissions Act. Jawad is presumed innocent of any criminal charges unless proven guilty beyond a reasonable doubt at a military commission.

Of the 275 detainees at Guantanamo, approximately 80 are expected to face trial by military commission.

Appeals Court Rules Military Judge Has Jurisdiction Authority in Gitmo Cases

By Sgt. Sara Wood, USA
American Forces Press Service

Sept. 25, 2007 - A military appeals court ruled yesterday that a military trial judge has the authority to determine jurisdiction in a military commission, a ruling that paves the way for proceedings to continue against suspected terrorists at U.S. Naval Station Guantanamo Bay, Cuba. The Court of Military Commission Review made the ruling in response to an appeal filed by the prosecution in the case of Canadian detainee Omar Khadr, who was charged in April with murder, support to terrorism and conspiracy under the Military Commissions Act of 2006. On June 4, the military trial judge in Khadr's case dismissed the charges against Khadr, ruling that the trial court did not have jurisdiction to hear the case.

This ruling was based on the fact that Khadr was officially classified as an "enemy combatant" in an administrative hearing at Guantanamo, and the Military Commissions Act requires detainees to be classified as "alien unlawful enemy combatants" before they can be tried by a commission. At the time, the judge also ruled that it wasn't the military commission's role to determine jurisdiction in these cases, even if the prosecution could present evidence showing the accused was an unlawful enemy combatant.

On June 8, the government filed a motion for reconsideration, which the trial judge denied on June 29. So, on July 4, the prosecution filed an appeal with the Court of Military Commission Review challenging the judge's dismissal of the case.

Air Force Brig. Gen. Thomas W. Hartmann, the legal advisor to the Office of Military Commissions Convening Authority, said yesterday's ruling gives the military judge authority to ascertain whether jurisdiction exists to try Khadr.

"Both the prosecution and defense have been vigorously preparing for this day, whatever the outcome," Hartmann said. "We have a ruling from the (Court of Military Commissions Review) that tells us how the military judge can determine jurisdiction. Now it is time to move forward."

Hartmann said he expects the prosecution to quickly begin forwarding cases to the convening authority for review. The convening authority will determine whether there is probable cause to send these cases to trial.

In Khadr's case, the military trial judge will now decide when the parties will return to trial in Guantanamo. Khadr, a 20-year-old Canadian citizen, was charged with murder in connection with the death of Army Sgt. 1st Class Christopher Speer in Afghanistan in 2002, attempted murder, material support for terrorism, conspiracy and spying.

Detainee Transfer Announced

The Department of Defense announced today the transfer of David Matthew Hicks from Guantanamo Bay, Cuba, to Australia.

On March 30, Hicks pled guilty and was convicted of material support to terrorism in the first trial under the Military Commissions Act of 2006. The military commissions Act established procedures that fully comply with Common Article 3 of the Geneva Conventions.

Military Commissions have historically been used to prosecute enemy combatants who violate the laws of war. The last time the United States used military commissions was during World War II. Military commissions provide a full and fair trial, while protecting classified and sensitive information and all personnel participating in the process, including the accused.

The law of war provides the legal framework to hold enemy combatants for the duration of hostilities. Trials by military commission demonstrate that the United States is committed to holding dangerous terror suspects accountable for their actions.

As part of a pretrial agreement, Hicks's sentence has been limited to not more than nine months confinement. The remainder of his sentence will be served in Australia as part of a transfer agreement with the United States.

Since 2002, approximately 395 detainees have departed Guantanamo for other countries including Albania, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Germany, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, the United Kingdom, and Yemen.

Approximately 380 detainees remain at Guantanamo.

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Prosecutor: Hicks Case Good Start for Military Commissions

By Sgt. Sara Wood, USA
American Forces Press Service

March 31, 2007 – The military commissions case of Australian detainee David Hicks, which concluded last night with a sentence of nine months imprisonment, was a fair proceeding that established a good basis for future commissions cases, the chief prosecutor for the Defense Department said here yesterday. Hicks, 31, was sentenced according to a plea agreement after pleading guilty to one charge of providing material support for terrorism. The commission recommended a seven-year sentence, which was the maximum allowed under the agreement, but another part of the agreement guaranteed a suspension for any portion of the sentence beyond nine months.

"What I hope is going to be reported is that we gave an al Qaeda terrorist a full and fair trial," Air Force Col. Morris Davis, chief prosecutor for the Office of Military Commissions, said at a news conference after the sentencing.

Davis conceded that because of the plea agreement, not all parts of the commission process were tested. However, the portions that did happen were fair and orderly, and everyone involved learned from them, he said.

Hicks, the first detainee charged under the Military Commissions Act of 2006, entered a guilty plea March 26 in an unexpected evening hearing here. After two days of negotiations between the defense and prosecution, Hicks appeared before the military judge to confirm that he attended several al Qaeda training camps in Afghanistan in 2001 and that after the Sept. 11, 2001, terrorist attacks, he spent time with al Qaeda fighters at Kandahar Airport and at the front lines in Konduz before being captured while fleeing to Pakistan. He did not, however, admit to ever firing a shot or having any knowledge of the 9/11 attacks in advance.

Marine Maj. Michael Mori, Hicks's detailed defense counsel, said at the news conference that the plea agreement was Hicks's choice, and that Hicks is looking forward to returning to Australia soon. The agreement states that Hicks must be transferred to Australian custody within 60 days of the sentence being passed.

"I think David right now is looking forward to getting back to Australia," Mori said. "He has some certainty finally in his life, and he'll be able to focus on getting on with his life, getting back with his family, finishing his education, and putting this part of his life behind him."

Mori said he has filed all the necessary paperwork for Hicks's transfer and hopes it will happen before the May 29 deadline.

Davis said about 74 more cases are waiting to be tried in military commissions here, and that the processes will be the same as were used in Hicks's case. Each case is unique and may or may not involve a plea deal, but what is important are the procedures and rules, he said.

"I'm not as concerned with the outcome of a particular case as I am in that the trial is fair and the proceeding is fair," Davis said.

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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 .

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Office of Military Commissions Refers Charge Against 'Australian Taliban'

By Jim Garamone
American Forces Press Service

March 1, 2007 – The Defense Department's Office of Military Commissions referred a charge today against David Matthew Hicks, an Australian captured in Afghanistan in December 2001. Judge Susan J. Crawford, the convening authority, referred one charge with two specifications of providing military support for terrorism. DoD officials said this is not a capital case.

The referral is the first under the Military Commissions Act of 2006. Hicks became known as "the Australian Taliban" following his capture. He is being held at the detention facility in Guantanamo Bay Naval Base, Cuba.

Under new procedures, Hicks must be arraigned within 30 days of receiving the charges. Within 120 days of receiving the charges, the military judge will assemble the military commission for trial on the merits. DoD officials said they expect the Hicks trial will begin in the summer.

Just as in the United States, Hicks is presumed innocent until proven guilty. He has legal representation, officials said.

If convicted, Hicks can serve his sentence in Australia, U.S. government officials said.

DoD officials expect referrals for other detainees shortly.

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