By Jane Holroyd
David Hicks is set to become the first Guantanamo Bay detainee to face trial under the new US military commission system after he was formally charged with alleged terror activities.
Hicks, 31, has been charged with providing material support for terrorism - a charge that carries a maximum life sentence. But a secondary charge of attempted murder pursued by his US military prosecutors has been dropped.
Hicks - who is expected to be served with the new charge today - will now face a US military tribunal in Guantanamo Bay within 30 days. A US military judge and panel of US military officers will begin hearing the actual case within 120 days unless there are legal challenges.
"No basis in law"
Hicks US defence lawyer Major Michael Mori today described the decision by the commission's Convening Authority to drop attempted murder as an admission that the charge had "no basis in law".
"This is an admission by the commission system that all the charges they laid against David, and (on which basis they have) held him in Guantanamo for five years, were made up and had no basis in law and fact," Major Mori said in Melbourne this morning.
"It's disgusting that he has spent five years in Guantanamo for made up charges," he said.
Major Mori, in Australia to meet with members of the local legal community said he would now seek a meeting with Attorney-General Philip Ruddock to highlight the "retrospective" nature of the new charge of material support for terrorism.
He said Hicks should not be tried by an unfair system for a crime he said did not exist in 2001 when his client was in Afghanistan.
Chief prosecutor for the US Office of Military Commission Colonel Moe Davis said his team would push on with its case against Hicks despite the decision to drop the attempted murder charge.
"While I certainly may not agree with it I certainly respect (the Convening Authority's) decision and we'll march forward with the material support for terrorism charge," he told the ABC.
He said the prosecution's case against Hicks had not been weakened and that the remaining charge of material support for terrorism was serious, carrying a maximum penalty of life imprisonment.
"If you look at the material support for terrorism charge it is a fair representation of the conduct that we seek to hold Mr Hicks accountable for," Colonel Davis said.
Plea bargain
Colonel Davis said his team of prosecutors would be open to a plea bargain arrangement which would see Hicks plead guilty in exchange for more favourable sentencing conditions such as a possible return to Australia.
"They're entitled at any time to submit an offer for a pre-trial agreement (plea bargain) and any offer they submit (would) certainly be considered," Colonel Davis said.
But Major Mori said he did not believe a plea bargain would be negotiated because there was too much at stake politically.
"You think they're going to offer him the Godfather deal? The deal he can't refuse?" Major Mori said on ABC radio this morning.
"I think (that's) not factoring in the spite and the personal interests that some people in the system have in America," he said. "I just don't think it's going to happen."
Major Mori said while he wanted Hicks back in Australia and that he was ethically obligated to pass on details of a potential plea bargain arrangement to his client, one had not been offered by the prosecution.
"I think David should have been home a long time ago," Major Mori said. "The problem is you have a system where they're willing to create laws after the fact. They're not looking for justice for David."
theage.com.au