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Two defense lawyers for Guantanamo detainee David Hicks were barred from representing their client yesterday, highlighting the failure of US military commissions to meet fair trial standards, Human Rights Watch said today. Hicks, the first person to be charged before the military commissions authorized by Congress in 2006, pleaded guilty to a single criminal charge.

Hicks’ plea came as the Defense Department announced the transfer of a new detainee to Guantanamo. The Kenyan detainee, taken into custody in Kenya, appears to be a criminal suspect who belongs in civilian criminal court.

“The antics at the Hicks hearing underline the illegitimacy of the Guantanamo tribunals,” said Jennifer Daskal, advocacy director of the US Program at Human Rights Watch and an observer at the hearing.

Hicks’ two civilian defense counsel were prevented from representing him as his hearing got underway on March 26. The presiding judge provisionally dismissed the assistant defense counsel, stating that the government was precluded from assigning civilian government employees to represent defendants, even though military commission rules allow the Department of Justice to assign its civilian lawyers to the prosecution. The judge then removed Joshua Dratel, Hicks’ longtime civilian counsel, because he agreed to abide by all “existent” rules, but refused to agree to “all” rules for the tribunal without first knowing what those rules stated. According to the judge, this ran afoul of civilian counsel’s obligations to agree to military regulations governing representation – regulations which have not yet been issued.

“Those who doubted these tribunals would be fair have been proved right,” said Daskal. “The commission can’t even establish basic rules for lawyers representing the defendant. There’s little reason to think that if Hicks had gone to trial he would have received a fair hearing.”

Hicks’ sole remaining lawyer, Major Michael Mori, had recently been threatened by the chief prosecutor of the military commission, Col. Morris Davis, who warned that Mori could be held criminally liable under Article 88 of the Uniform Code of Military Justice because he made public criticisms of President Bush’s detainee policies. Mori filed a prosecutorial misconduct motion about this matter, but because Hicks pleaded guilty the motion will likely never be heard.

Originally the US government had charged Hicks with attempted murder, among other offenses. Hicks pleaded guilty yesterday to one count of material support for terrorism – a crime typically prosecuted in civilian courts. Hicks will appear before the military commission for sentencing later this week and could receive a sentence of up to life imprisonment. He is expected to serve most of his term in Australia.

Human Rights Watch called again for the Bush administration to close the Guantanamo Bay detention facility, stating that the remaining detainees should either be charged and tried in federal court, or released. More than 380 detainees at Guantanamo have not been charged with crimes or held in accordance with the laws of war, and have been denied any opportunity for a meaningful review of the basis for their detention in an independent court.

Transfer of New Detainee

Human Rights Watch also raised concerns about the transfer of a criminal suspect to military custody at Guantanamo instead of to US civilian custody. The Department of Defense announced on March 26 that it had transferred Mohammad Abdul Malik to Guantanamo over the weekend.

“The Bush administration is still using the ‘war on terror’ to hold criminal suspects while denying them their basic rights,” said Daskal. “If Abdul Malik committed terrorist acts, I’m sure federal prosecutors would be happy to indict him.”

Abdul Malik is a Kenyan citizen. Kenyan authorities detained him in late February, and local human rights groups briefly saw him in detention in Nairobi. He reportedly disappeared from custody soon after. A March 14 Kenyan media article referred to police sources who stated that he had been flown to Guantanamo.

The Pentagon, which did not reveal where Abdul Malik has been held for the past three weeks, reported that he had confessed to participating in a 2002 hotel attack in Mombasa, Kenya, as well as involvement in a plot to shoot down an Israeli civilian airliner near Mombasa.

Human Rights Watch expressed concern that Abdul Malik was held incommunicado for several weeks and interrogated about alleged criminal activities under questionable circumstances.

“Where was Abdul Malik held these last weeks?” said Daskal “If he was held in secret detention, by the CIA or the military, it raises serious questions about the treatment he experienced and the value of his confession.”

Abdul Malik’s transfer to Guantanamo comes not long after the extradition of another terrorism suspect from Kenya to Houston, Texas, for prosecution in US federal court. Daniel Joseph Maldonado, a US citizen, was arrested in Kenya in late January for illegally entering the country from Somalia, sent to the United States, and charged with undergoing training in weapons and bomb-making. Abdul Malik was reportedly arrested at a foreign exchange bureau in Mombasa.

“The vastly different treatment of these two terrorism suspects shows the US sees Guantanamo as a parallel criminal justice system for foreigners,” said Daskal. “Americans suspected of terrorism rightly go before US courts, while foreigners get sent to Guantanamo for indefinite detention and unfair proceedings.”

Human Rights Watch called on the United States to bring Abdul Malik to trial in US federal court, pointing out that discrimination on the basis of nationality in criminal proceedings is prohibited under international law. In an important UK decision in December 2004, the House of Lords struck down a law that permitted the indefinite detention of foreign terrorism suspects, but not UK nationals.

Except for 14 detainees transferred to Guantanamo from CIA custody in September 2006, transfers to Guantanamo had stopped in September 2004.

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