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US court clears way for military commissions -

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US court clears way for military commissions

AM - Saturday, 16 July , 2005 08:00:28

Reporter: Leigh Sales

EDMOND ROY: There's been a major development in the case of Australian Guantanamo Bay inmate David
Hicks.

A United States court has cleared the way for the controversial military commissions set up to try
detainees to go ahead.

It means the US military will try to reconvene the hearings, including one for Mr Hicks, as soon as
possible.

But the issue is now likely to end up before the United States Supreme Court.

From Washington, here's North America Correspondent Leigh Sales.

LEIGH SALES: The ruling has come in a case called Hamdan versus Rumsfeld.

Along with David Hicks, Salim Ahmed Hamdan is one of four Guantanamo detainees slated for trial via
a military commission.

His lawyers argued that the commissions are illegal.

But a three-judge panel has found three to zero in favour of the Bush administration, ruling that
the Guantanamo detainees are not covered by the Geneva Conventions and that the commissions are a
competent tribunal to hear the charges against them.

Professor David Cole at Georgetown University is an expert on terrorism and the American
Constitution.

DAVID COLE: Well as a practical matter it means that the administration is now free to go forward
with military tribunals to try people on Guantanamo for war crimes.

LEIGH SALES: So it is a victory for the administration?

DAVID COLE: Yeah, it's absolutely a victory for the administration. It's not a surprising one - the
three members of the court are widely viewed as extremely conservative pro-Government judges, all
Republicans.

LEIGH SALES: Is this ruling likely to be appealed in a higher court?

DAVID COLE: I'm quite confident that Mr Hamdan's attorneys will seek review, probably by this court
- the DC circuit - en banc (?), which means after the entire court, not just three members of the
court, to review the matter. And they'll probably also ask the Supreme Court to consider the
matter.

LEIGH SALES: Would the prospect of a further appeal prevent the Department of Defence from
reconvening the military commissions?

DAVID COLE: No. Not unless the either the court as a whole or the DC circuit as a whole, if the
Supreme Court were to issue an injunction against the proceedings pending appeal, but that would be
very, very unlikely.

So I think the administration is legally free to go ahead. I think the administration has a bigger
sort of practical problem with going ahead, and that is that wholly apart from the issues raised by
this case, the tactics that it has used in obtaining information from the people on Guantanamo are
so questionable and so controversial that I think it's going to be very difficult for the
administration to put anybody on trial, because all the evidence that they will have obtained from
people on Guantanamo will be subject to a challenge on the ground that it was obtained via coercion
and torture and the like, and the trial will turn into as much a trial of the United States'
treatment of the detainees as a trial of the individuals who are charged.

LEIGH SALES: David Hicks' military lawyer, Major Michael Mori, is trying to put the best possible
light on today's decision.

Major Mori is travelling in South East Asia, and I apologise for the audio quality of our
interview.

MICHAEL MORI: Well the Hamdan case is the final obstacle, finally out of the way, so that Mr Hicks
can get his day in federal court.

LEIGH SALES: Do you fear, though, that the Department of Defence may reconvene Mr Hicks's military
commission before your case gets into a court in Washington?

MICHAEL MORI: Well I think it would be very unfair for the powers controlling the military
commission system to rush the commission to occur before Mr Hicks can have his case heard in the
federal court system, especially since it was the US Government that requested the delay in the
first place.

LEIGH SALES: There's obviously a tension here between you wanting to get Mr Hicks dealt with as
quickly as possible and out of Guantanamo Bay because of his health issues, but at the same time
wanting to appeal against the Government system that's been set up, which delays things. At what
point will you accept the rulings of the court and go with the Government system?

MICHAEL MORI: Never. I don't think I could ever accept an unfair process for Mr Hicks, or for any
human being. I think everyone is entitled to justice and equality.

LEIGH SALES: It's understood the US would like to reconvene the military commissions as soon as
possible, probably in late August or early September.

This is Leigh Sales in Washington, for Saturday AM.