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Guantánamo Bay, Cuba — President George W. Bush’s re-election victory clears the path for the first U.S. military commission trial in nearly 60 years. And while highly technical, last week’s proceedings in Guantánamo Bay, Cuba — proceedings that took place against the backdrop of the heated presidential election — will shape the process and set precedents for the cases to come. Last week, defense attorneys got their first chance to attack military commission rules before the commission itself. Lawyers for Australian detainee David Hicks confronted the three-member panel with a slew of challenges grounded in international, military, and U.S. law. But prevailing won’t be easy. To win, Hicks’ defense team must persuade a three-member panel of military officers — two of whom aren’t lawyers — to publicly denounce a process drawn up by their own Department of Defense and essentially overrule their commander in chief. During roughly 10 hours of oral arguments, Hicks’ lawyers argued that the military commissions — authorized by Bush in the aftermath of Sept. 11 — are illegitimate and should be terminated. Hicks’ lawyers based their arguments largely on the Geneva Conventions and the practices of international courts created by the United Nations. Meanwhile, government lawyers told panel members to uphold Bush’s presidential order and corresponding Defense Department regulations. “The question for you is: Does [the process] fulfill the president’s mandate for a full and fair trial?” prosecutor Army Lt. Col. Jack Einwechter told the panel. But defense lawyers urged the panel to look beyond the president’s order and consider advances in international law that they say render the U.S. commissions illegal. The defense claims that many of the offenses charged against Hicks are not recognized crimes under international law. “What we want to do is focus the panel on what is appropriate military commission jurisdiction and existing law,” said civilian defense lawyer Joshua Dratel, lead counsel for Hicks. The week’s proceedings concluded with no clear winner as the panel indicated it would carefully consider multiple challenges brought by the defense team. If the defense requests are denied, Hicks’ lawyers will then have to present their client’s case to the same body they last week slammed as unfair and unlawful. “That’s a huge flaw in the system,” says Army Maj. Jeffrey Lippert, one of Hicks’ military defense lawyers. “When we have to challenge members on their qualifications to even sit and then come back to them and put on a case, it just shows how unfair the system is.” Defense lawyers also complain that the commission’s two nonlawyer members are ill-equipped to apply legal principles and rule on complex matters of international law. In response, Army Col. David McWilliams, chief spokesman for the Office of Military Commissions, says panel members appeared ready to grapple with the questions raised during the proceedings. “We had a very spirited debate between trial counsel, defense, and the panel, and a lot of engagement in terms of issues,” McWilliams says. MIXING METAPHORS In November 2001, President Bush authorized the use of military commissions to try non-U.S. citizens accused of aiding al Qaeda. Critics say the commissions — modeled after tribunals used to try war crimes during World War II — ignore major legal developments of the past 60 years. During the campaign for the White House, Democratic vice presidential candidate Sen. John Edwards (D-N.C.) promised that a Kerry administration would discard the process and replace it with one governed by the Uniform Code of Military Justice. So far, 15 individuals have been designated for possible trial before military commissions. Four, including Hicks, have been charged. In August, the chief prosecutor for military commissions, Army Col. Robert Swann, said his team was preparing charges against nine additional individuals. Observers from the Justice Department, the Defense Department, the Australian government, the American Civil Liberties Union, and international human rights groups, as well as Hicks’ half-sister attended last week’s hearings. Despite the gravity of the proceedings, the tone of the courtroom was freewheeling. There was no time limit for presentations, and panel members frequently interrupted with questions. Multiple lawyers argued for each side, occasionally interjecting points in the midst of their colleagues’ statements. Army Col. Peter Brownback III, presiding officer of the military commission and the panel’s only lawyer, at times displayed visible frustration with participants. Brownback, a retired military judge, clicked his ballpoint pen during arguments and twice referred to one member of the defense team as “Sunshine.” Brownback’s questions for defense lawyers tended to be pointed. When Marine Corps Maj. Michael Mori argued that acts of terrorism do not constitute specific crimes under the law of war, Brownback shot back that the crime of genocide had not been recognized prior to the prosecution of Nazi war criminals at Nuremberg. Today, the tribunal at Nuremberg is considered a pioneering moment in the evolution of international humanitarian law, and Brownback’s point seemed to be that brutal crimes don’t always fit into neat categories. The complexity of the legal arguments and the fact that two panel members — Air Force Col. Christopher Bogdan and Marine Corps Col. Jack Sparks Jr. — are not trained lawyers had attorneys on both sides scrambling for analogies that would make the law more accessible. “If I go swimming today and they make it a crime tomorrow, they can’t prosecute me on Thursday,” Dratel said to explain the concept of ex post facto, which prohibits prosecution for acts that were not illegal at the time they occurred. “I understand the need for the law to evolve, but if you can’t accept [ex post facto] as a firm principle of U.S. and international law, you’re not doing your duty here,” Dratel added. One prosecutor compared Hicks’ challenges to a girl’s dissatisfaction with her date to a school dance.”The accused does not get to pick the forum in which he is tried,” said Einwechter. LOOPHOLES IN THE LAW OF WAR The government accuses 29-year-old Hicks of training at al Qaeda camps and fighting for the Taliban against U.S. and allied forces in Afghanistan. Hicks faces a possible life sentence if convicted on charges of conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy. His trial, originally scheduled for January 10, 2005, was delayed last week until March 15, 2005. Defense lawyers told the panel that Hicks’ alleged actions on the battlefield would not technically violate the law of war and should be treated as ordinary crimes. “The law of war doesn’t regulate everything that happens in the area of combat,” argued Mori. “To violate the law of war, you must attack a person or place protected by the law of war.” Prosecutor Marine Corps Lt. Col. Kurt Brubaker pointed to the 1942 Supreme Court case Ex Parte Quirin — decided before the ratification of the Geneva Conventions — which upheld the trial of eight Nazi saboteurs before a U.S. military commission on charges of violations of the law of war. “People on the battlefield who don’t have privilege to be there . . . are a problem under international law and are abhorrent,” Brubaker said. “Before the modern era they were summarily executed. That was considered essentially acceptable.” Commissioner Bogdan expressed unease with the defense position that a murder of a U.S. soldier in Afghanistan by an unlawful combatant should not be considered a war crime, but rather an ordinary murder triable by the Afghan government but beyond the reach of U.S. courts. “An illegal combatant enters the battlefield in State B and attempts to shoot soldiers from State A. You are telling me that individual . . . is subject only to the domestic law of Country B?” Bogdan asked in apparent disbelief. He added: “There’s a loophole. Literally, he can get away with murder.” Dratel, Hicks’ civilian defense lawyer, vigorously responded, “You’re talking about a loophole in the law. That doesn’t mean you can make one up later to penalize someone.” The defense also sought to exclude charges of conspiracy and aiding the enemy, which it said could not be applied to a non-U.S. citizen for acts outside U.S. territory. “Mr. Hicks is an Australian citizen. He has no allegiance to the United States,” argued Lippert, the Army defense lawyer, adding, “What law does David Hicks have to abide by in Afghanistan? Afghan and the country he’s a citizen of.” In addition to challenging the individual charges against Hicks, the defense team attacked the entire commission process as flawed, unfair, and illegal. “What is wrong with the court martial system presented by the [Code of Military Justice]?” Dratel asked panel members. “Why the need to return to an archaic and discredited system that was abandoned 50 years ago?” A senior official with the Office of Military Commissions who spoke on the condition of anonymity put the central question somewhat differently: “Is there a better way to do this? There might be. That’s not the question. The question is, will it work?” INCHING FORWARD While the hearings concluded with several unanswered questions, the panel did rule on some matters. The commission refused to halt the proceedings against Hicks, pending the outcome of negotiations between the United States and Britain over the treatment of British citizens subject to military commission trials. It also denied multiple requests from the defense to present testimony from international law experts, including Cherif Bassiouni, a law professor at DePaul University School of Law, and Antonio Cassese, a former judge at the international tribunal for Yugoslavia. The panel also rejected two defense challenges related to the structure and composition of the commission. In August, when Hicks first appeared before the military commission appointed to hear his case, he faced a panel of five military officers and one alternate. After questioning the commission members, Hicks’ defense team sought to disqualify all but one. Last month, military commission Appointing Authority John Altenburg Jr. granted three challenges without naming replacements, leaving three members, the minimum required under Defense Department regulations. Defense lawyers argued that the reduction gives the prosecution a numerical advantage and violates the spirit of military law. Under commission rules, which require a two-thirds vote to convict, the prosecution needs four votes on a five-member panel to win its case, but only two votes on a three-member panel. The defense needs two votes to acquit in either scenario. The panel denied the defense motion. Brubaker, the government’s lead lawyer, said the defense team should have considered the consequences when it sought to strike members from the panel. “The fact that the challenges they made ultimately were granted and now they’re complaining about it because of numbers is something they could have been thinking about in terms of trial strategy,” he said. Dratel said no defendant should have to face that kind of choice. “To suggest Mr. Hicks had to choose whether to retain members on the commission who should not serve or suffer a diminution of number to an unfair number is unconscionable,” he said.

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