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Homeland Security

American Forces Press Service

Judge Orders Military Trial at Guantanamo Bay Halted

By Kathleen T. Rhem
American Forces Press Service

WASHINGTON, Nov. 15, 2005 A federal judge ordered a halt Nov. 14 to the military trial of an Australian detainee captured in Afghanistan and held at Guantanamo Bay, Cuba, pending a Supreme Court ruling in a related case.

Preliminary hearings in the military commissions trial of David Hicks were scheduled to begin at the island Navy base later this week.

Hicks, the so-called "Australian Taliban," was captured in 2001 fighting with the Taliban in Afghanistan. He was transferred to Guantanamo Bay early in 2002. Hicks is charged with conspiracy, attempted murder by an unprivileged belligerent and aiding the enemy. He has pleaded not guilty to all charges.

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued an order that forbids the government "from going forward with any and all legal proceedings associated with the military commission process with respect to (Hicks)."

In response to Kollar-Kotelly's ruling, John D. Altenburg Jr., appointing authority for the Defense Department's Office of Military Commissions, ordered that no further action be taken in the Hicks case "until further notice," a DoD spokesman said.

Kollar-Kotelly wrote in her opinion that the government "shall stay the case presently before the Court until the Supreme Court has issued a final and ultimate decision" in the case of Salim Ahmed Hamdan.

Hamdan is a Yemeni captured in Afghanistan by Northern Alliance militia forces in 2001 and held at Guantanamo Bay since early 2002. He has admitted to being a personal driver for terrorist leader Osama bin Laden and is alleged to be a member of al Qaeda and to have trained in terrorist camps in Afghanistan.

Legal proceedings in the military commissions trials of Hicks, Hamdan and two other Guantanamo detainees began in August 2004, but were halted by an order from a separate district court judge in November 2004. A three-judge federal appeals court panel ruled in July that the commissions were legal and could go forward, prompting yet another appeal by Hamdan's defense team.

The Supreme Court announced Nov. 7 that it would hear arguments in the case of Salim Ahmed Hamdan vs. Donald Rumsfeld. Arguments are expected in March or April. Newly appointed Chief Justice John Roberts sat as a member of the appeals panel that ruled in November to allow the commissions and has recused himself from deliberations in the Hamdan case.

Hicks' defense attorneys asked for their case to be "stayed" based on the argument that the two cases rest on similar issues and that the government should wait until the Supreme Court rules on the Hamdan case before proceeding with the Hicks case.

Kollar-Kotelly agreed. "While granting an injunction ... is normally considered an extraordinary remedy, the posture of this case and the importance of the issues involved call for this extraordinary measure to be imposed," she wrote in her opinion.

Defense officials continue to believe that the military commissions process is the best way to try violations of the law of war. "The military commission process provides for a full and fair trial while protecting national security information," Air Force Maj. Michael Shavers, a Defense Department spokesman said today. "It includes fundamental principles of justice, such as the presumption of innocence, proof of guilt beyond a reasonable doubt, representation by a zealous defense counsel, and the ability to present evidence and call witnesses."

On Nov. 7, the same day the Supreme Court announced it would hear the Hamdan case, the Defense Department announced it has charged five other Guantanamo detainees with war crimes, bringing the total of detainees who face military commission trials to nine.

Also that day, Defense officials announced that Altenburg lifted a previous stay in the case of Ali Hamza Ahmad Sulayman al Bahlul, from Yemen, who is accused of crafting terrorist propaganda and other crimes. Bahlul is one of the original four detainees charged with war crimes.

Commissions proceedings against him began in August 2004 but were halted with the rest three months later. In his first appearance before the commission, Bahlul admitted to being a member of al Qaeda and asked to represent himself.

"The Office of Military Commission is continuing to move forward with commission cases," Shavers said.


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