Anthony D. Romero,
ACLU Executive Director
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August 25, 2004

Today was the opening of the military commission against David Matthew Hicks, the 29-year-old Australian who has been held in Gitmo for over two years. Today Mr. Hicks saw his mom and dad for the first time in all those years in what was described as an intensely emotional meeting. We spoke to Mr. and Mrs. Hicks during a break and they held a press conference at the end of the day. Mr. Hicks actually reminded me of my dad. With a father’s unconditional love for his son, his concern was that his boy had been denied due process and had been kept from his family for all this time.

He also told us that his son had told him and Mrs. Hicks of his physical and emotional abuse while in U.S. government custody. He didn’t want to go into detail because that will be raised in the subsequent proceedings. But, I thought you would want to know that the ACLU received a response yesterday in our Freedom of Information Act lawsuit demanding any documents relevant to the use of torture on U.S. government bases overseas, including Guantanamo.

Defying a judge’s order to turn over those documents in our litigation that pre-dated the Abu Ghraib scandal, the government has shown once again its disdain for the need to ensure accountability and transparency. This time they’re fighting a U.S. federal judge and we’ll definitely keep you posted on the lawsuit as it evolves. Needless to say, it has obvious implications for the Hicks case and the other Guantanamo commissions. (See news release: ACLU Decries Government’s Continued Stonewalling in Lawsuit Over Torture Documents)

Concerning what happened at the commissions today, we’re beginning to see concrete examples of the structural problems that we were anticipating. Defense counsel, led by the brilliant civilian attorney Josh Dratel and the enormously talented Marine Maj. Michael (Dan) Mori, filed 19 motions to dismiss today. Now think about it. If defense counsel had to file that many motions to dismiss raising basic issues around rules, jurisdiction, constitutional law and international law – it seems pretty clear that the rules and structures for these commissions are woefully inadequate.

Another issue that became clearer today is the significant power of the presiding officer, setting him above the other so-called “peers” on the commission. When defense counsel began asking complicated legal questions of the other commissioners in the voir dire, Mr. Brownback would often step in to “clarify” or even amend the question. For instance, when one commissioner was struggling to understand the standard of guilt needed for these tribunals, Mr. Brownback stepped in to “protect” the commissioners from tough questions. This, of course, may make Mr. Brownback’s “peers” grateful to him and maybe more willing to go along with him in the future. We’ll see?

Finally, you should also know that the Hicks’ defense team is the best-resourced of all of them. It took more than two tables to array the defense counsel and Mr. Hicks, compared to the one of yesterday’s commission. Hicks has two military lawyers, one civilian lawyer, one Australian lawyer and paralegal assistants. But on Friday, only one lawyer is expected to appear.

It appears that this second-class system of justice is getting more refined based on ethnicity and background. John Walker Lindh (a white American) certainly got the best treatment in U.S. criminal court; David Hicks follows – remember that Australia is an ally – and then you have men from Arab and Muslim countries bringing up the rear. This disparate treatment among detainees of different races and ethnicities is increasingly apparent.

Several Arab colleagues who are bilingual also tell me that the level of translation can be dismal at times, that there are significant mistakes in the official charge sheet and that the simultaneous translation in the commission can be incomprehensible at times. (See my weblog from Wednesday.) And for the men being processed through the Combatant Status Review Tribunals, with their “personal representative,” the translation seems to be even worse.

But think, my friends, what if this process doesn’t work in Hicks’ case? If it can’t work here, how can it possibly work with all those commissions that are more poorly staffed and resource-starved? And, how can they possibly recreate this process for the more than 581 men who are still not a part of it and are detained here? Something has to change or the shining example of American justice may unravel, rocking our faith in ourselves as well as the world’s belief in us. We deserve better.

I’ll keep you posted tomorrow.


P.S. The relationship between Mr. Brownback and Mr. Altenburg who is the appointing authority and Mr. Brownback’s boss appears to have been even more extensive than I told you yesterday. In today’s voir dire, we learned that Mr. Altenburg spoke at Mr. Brownback’s retirement party, that they attended family weddings and that they know each other pretty well. You’ll remember that Mr. Altenburg is charged with reviewing and possibly overturning any of the rulings made by Mr. Brownback. And, even if this relationship can be fully professional, we have to face facts that it looks bad and may not pass the laugh test with the rest of the world. What’s hard to understand is that given the expected high-profile nature of these commissions, why wouldn’t the government take greater consideration of appearances and go the extra mile to deepen public confidence in this so-called fair and independent process?

P.P.S. Members of the ACLU family asked what they can do. Are you up for an e-mail action alert on the Guantanamo issues and possibly giving us access to the briefings and visits that we’ve been denied? If so, we’ll organize it, ’cause we could use your help.

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