By Phillip Coorey - 10nov04
A US Federal Court judge ordered yesterday that Military Commission proceedings against a Guantanamo Bay inmate be stopped immediately.
It raised the hopes of David Hicks' lawyers that he, too, will be spared and sent home.
In a blow to the Bush Administration's self-granted anti-terror powers, Judge James Robertson found the controversial Military Commission process was "fatally contrary" to America's code of military justice.
He took issue with the non-independent appeal process and the power to exclude an accused from hearings and deny him access to evidence presented against him.
He also ruled that President George W. Bush had no authority to classify inmates as "enemy combatants", which denies them prisoner of war rights under the Geneva Conventions. Judge Robertson ordered that even if the Commissions was made fair, there could be no further proceedings until "a competent tribunal" and not Mr Bush, classified the inmate.
"The President is not a
tribunal," he said.
The ruling, handed down in the US District Court in Washington DC, concerned Yemeni Salim Hamdan, accused of being Osama bin Laden's bodyguard and driver.
But the Pentagon conceded yesterday its implications would likely to extend to Hicks and others.
Like Hicks, Hamdan was captured in Afghanistan in December 2001, taken to Guantanamo Bay, and deemed eligible by Mr Bush to face trial by Military Commission.
Hamdan and Hicks are among the handful of detainees to have since been charged with terror offences and had Military Commission proceedings started against them.
The challenge to the Federal Court was made possible in June when the US Supreme Court ruled all detainees could challenge their detention before US civilian courts.
Hick's lawyers have lodged the same challenge as Hamdan's before the same court, but a different judge, and are expecting a ruling within weeks.
"Enough is enough," said Hicks' military lawyer Major Michael Mori yesterday after the Hamdan ruling.
"Free David Hicks.
"He's in the exact same position as Hamdan and they shouldn't go forward with his commission.
"The Federal Court has stepped in, said the commission is contrary to military justice and the system is unfair."
Major Mori said the Australian Government must realise the commissions were invalid and step in and take Hicks home.