Homeland Security

16 November 2005

Judge Postpones Military Trial of Australian Guantanamo Detainee

U.S. Supreme Court must decide legality of military courts, judge says

By Alexandra Abboud
Washington File Staff Writer

Washington – A U.S. federal court judge postponed the military trial of David Hicks, an Australian enemy combatant captured while fighting in Afghanistan in 2001, until the U.S. Supreme Court decides on the legality of the military trials being used to try detainees in the War on Terror.

In a November 14 ruling, Colleen Kollar-Kotelly, a federal district court judge, said that the Hicks trial, which was scheduled to begin on November 18 at the U.S. Navy base in Guántanamo Bay, Cuba, could not proceed until the U.S. Supreme Court makes a “final and ultimate decision” about the legality of the military courts.

Kollar-Kotelly said that although granting an injunction, or a halt in legal proceedings, is often considered an “extraordinary remedy,” in the Hicks case “the importance of the issues involved call for this extraordinary measure to be imposed.”  (See related article.)

Kollar-Kotelly’s decision comes after the Supreme Court agreed on November 7 to hear arguments in Hamdan v. Rumsfeld. At issue in that case is the legality of military courts trying detainees, including Hicks, who were captured during the War on Terror. (See related article.)

The Hamdan case comes to the Supreme Court after a federal appeals court, which included Judge John Roberts before he became chief justice of the Supreme Court, overturned a lower court ruling that said that the military commissions violate U.S. and international law. Roberts will not take part in the case, which is scheduled to come before the Supreme Court in March 2006. 

Nine detainees, including Hicks and Hamdan, are scheduled to face military trials.  As a result of the ruling, it is likely that the military trials will not reconvene until a decision in the Hicks case is made.

At a news conference on November 15, Secretary of Defense Donald Rumsfeld said that he believes the military-court process ultimately will be approved. “It's not surprising that courts intervene and then things get sorted out,” Rumsfeld said. “I personally think they'll end up being permitted under our Constitution and our laws."

For more information about detainee issues, see Detainee Issues.

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)