from Crikey …..

The hitch that might have freed Hicks

Greg Barns writes:

David Hicks must be feeling a little unlucky today. While he’s banged up in an Adelaide prison, serving the remainder of his sentence as part of the plea bargain deal he did a couple of months ago to get himself out of the hellhole that is Guantanamo Bay, Canadian prisoner Omar Khadr has just had a significant legal win over his American captors.

A few hours ago, military judge Peter Brownback ruled that the charges laid against Khadr, who was captured at the tender age of 15 in 2002, would be dismissed because Khadr has only been classified as an "enemy combatant". But under a 2006 law passed by the US Congress after the Supreme Court found the original trial process to be fundamentally flawed, the only people who can be tried under the military commissions process are "unlawful enemy combatants."

In fact, none of the Guantanamo Bay detainees - including David Hicks - have been classified as ‘unlawful enemy combatants’’.

In case you are thinking Brownback is some sort of maverick judge, consider this. All he was doing was applying accepted international law, which adopted a 1942 US Supreme Court case on the distinction between "lawful" and "unlawful" enemy combatants.

As a Pentagon spokesman made clear to Associated Press today, the distinction between the two categories is an obvious one. "A 'lawful enemy combatant' is a combatant serving in the armed forces of another country at war with another country ... Allied and Axis soldiers during WWII, etc. When captured, they become Prisoners of War, generally until hostilities are over. On the other hand, an 'unlawful enemy combatant' is one who does not serve in the armed forces of any internationally recognized nation-state, does not wear a uniform or wear rank insignia, does not carry arms openly and is not a party to the Geneva Conventions."

Judge Brownback has given the military prosecutors 72 hours to appeal his ruling to a specially constituted appeals panel, but guess what -- the authorities haven’t yet bothered to set one up and are unlikely to do so within that time frame. Talk about sloppy decision-making!

What is more likely is that the remaining Guantanamo Bay prisoners, including Khadr, will be reclassified, which will no doubt set off a string of legal challenges and further delay justice being accorded to detainees.

So why didn’t Mr Hicks’ lawyers adopt the argument which has brought Mr Khadr success today? Who knows, but it is not as though Mr Khadr’s lawyers hit upon an obscure point of law to get the charges against their client dismissed. They simply relied on well established legal principles and the judge could do little else but agree.

What the Khadr case shows is that once again, the system established by the Bush Administration, and supported by Congress, to try Guantanamo Bay detainees ignores fundamental principles of justice. When the US Supreme Court ruled last year that the Guantanamo Bay system of military trials were illegal, telling President Bush that Congress has not "issued the Executive with a blank cheque", that should have been the death knell for Guantanamo Bay and its kangaroo courts.

But instead of taking the hint, the President and the Pentagon have arrogantly soldiered on. Fortunately lawyers who understand the importance of sticking to well established principles like Judge Brownback are putting up the roadblocks. So how many more humiliating losses for the Bush Administration and the Pentagon will it take before they get the message: that justice is actually for ALL.