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On the second day of military commission hearings, defense lawyers for Australian detainee David Hicks homed in on concerns about the role of the commission’s presiding officer and the suitability of the individual selected for the job. Hicks’ lead attorney, civilian criminal defense lawyer Joshua Dratel, argued that the presiding officer, retired Army Col. Peter Brownback III, should be removed from the panel because of a close friendship with the official who appointed him to his post and who will ultimately review the panel’s findings. Dratel is seeking to have Brownback, as well as three other commission members and the alternate member, disqualified from his client’s case. He also raised concerns about the ability of commission members to hear evidence and render judgments in multiple detainee cases at the same time. Hicks — accused of training with al-Qaida and fighting against coalition forces in Afghanistan — pleaded not guilty to charges of conspiracy to commit war crimes, murder by an unprivileged belligerent, and aiding the enemy. His trial is set to begin Jan. 10. Hicks entered the courtroom calmly. The stocky 29-year-old wore a charcoal suit and displayed little emotion during the proceeding. He was not shackled or handcuffed in the courtroom. Before the morning session, Hicks — who is currently being held in solitary confinement — was permitted for the first time since he left Australia in 1999 to meet with his father, Terry Hicks. Hicks’ defense lawyers announced that they intend to file 17 separate motions to dismiss the case, arguing that the military commission process violates the U.S. Constitution, the Uniform Code of Military Justice, and the Geneva Conventions, as well as other provisions of international and domestic law. Among the group’s specific concerns is that Brownback, a retired military judge and the only panel member with legal training, may influence the decisions of other commission members. “In your experience as a military judge, would you ever let an attorney sitting on a jury express an opinion as a lawyer on the law to the jury?” Dratel asked Brownback. “No, I wouldn’t,” Brownback answered. “Isn’t that what we have here?” Dratel countered. CLOSE TIES During questioning, Dratel confronted Brownback, a retired Army judge, about his close friendship with John Altenburg Jr., the military commission appointing authority. Altenburg, a retired Army judge advocate general, and Brownback met when both were stationed at Fort Bragg, N.C., in the early 1990s. Brownback served as chief circuit judge, and Altenburg served as the installation’s top legal adviser. Brownback’s wife, also an Army officer, worked for Altenburg. When Brownback retired in 1999, Altenburg presided over the formal retirement ceremony and was the primary speaker at Brownback’s roast. Two years later, Brownback spoke at Altenburg’s retirement. Brownback was recalled to active duty for the commission; Altenburg serves in his current capacity as a civilian. “I think John Altenburg wants me to preside over a full and fair trial of these people. I base that on four years of close, close observation of him and my knowledge of him,” Brownback said. But Dratel said Altenburg’s selection of Brownback out of a pool of more than 30 candidates for presiding officer creates the appearance of impropriety. Brownback agreed to forward the challenge to Altenburg for a decision in accordance with the military commission rules. Wednesday’s proceedings included a formal reading of the charges against Hicks, questioning of the five commission members and alternate by both prosecution and defense, and a closed session to discuss classified information. On Thursday, Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul faced the same panel in a similar proceeding. The defense team challenged panel members Marine Corps Col. R. Thomas Bright and Air Force Lt. Col. Timothy Toomey, both of whom served in Afghanistan in support of U.S. operations at the time of Hicks’ capture. Dratel suggested that both officers would be better suited as witnesses than as judges and fact-finders. Hicks’ lawyers are also seeking to remove commission member Marine Corps Col. Jack Sparks Jr., who served as commanding officer of a reservist killed in the Sept. 11 terrorist attacks, and Army Lt. Col. Curt Cooper, who reported strong emotions related to the attacks. Lead prosecutor Marine Corps Lt. Col. Kurt Brubaker objected. “September 11 had a huge impact on the U.S. military. It’s hard to find a panel not impacted by the attacks of September 11,” Brubaker said. “That is not the appropriate standard.” The only panel member the defense did not seek to disqualify was Air Force Col. Christopher Bogdan, who served as the commander of a unit arming unmanned aircraft with Hellfire missiles during U.S. operations in Afghanistan. FURTHER REVIEW Dratel’s challenges will now go to Washington, D.C., for a decision from Altenburg, who was responsible for screening and selecting commission members. The challenges lodged against commission members by Hicks’ defense attorneys — as well as similar objections put forward Aug. 24 by the lawyer for Yemeni defendant Salim Ahmed Hamdan — place Altenburg in the awkward position of reviewing his own decisions. Commission rules provide that the appointing authority can dismiss members for good cause, but, unlike the rules for a military court martial, the rules do not permit peremptory challenges for either side. Both sides will submit briefs on what the appropriate standard should be. Defense lawyers complain that rules for the military commission process are evolving even as the first cases move forward. “This is a process that is so ill-thought-out in its formulation that even the people in the process don’t have any idea what they’re required to do or what things mean,” Dratel said during a press briefing. Hicks’ military defense counsel, Marine Corps Maj. Michael Mori, said he has shared his concerns about the military commission process with Hicks. “I don’t think any of us has ever hidden from David that he’s facing an unfair system resurrected from the 1940s,” Mori said. “He’s being placed in a system the United States would not tolerate for its citizens.”

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