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David Hicks: "Unprivileged Belligerent"?

Jameel Jaffer,
Director, Knight First Amendment Institute
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November 1, 2004

We have just come back from the Clipper Club, which is the only restaurant on the leeward side of the Base that is open after seven o’clock. We spent most of the day on the other side of the Base, meeting with military officials and attending the commission hearings. It was a very long day. We missed the last ferry and had to come back to the Combined Bachelor’s Quarters (CBQ) on a gunboat (something like John Kerry’s swift boat, I’m told) and we didn’t get back here until well after nine.

The commission building is on a grassy hill at what I think may be the Base’s highest point, with a sweeping view over Guantánamo Bay and the windward side of the Base. There are several checkpoints you need to go through in order to get to the building; soldiers with machine guns check your ID, sift through your papers, and test your bags for explosives. When you finally get into the building, you’re led into a room that holds about 60 people. As in most courtrooms in the United States, there is a railing that divides the participants from the audience.

Today, the participants included three lawyers each from the prosecution and the defense, and the three-person military commission. David Hicks, well groomed and dressed in a suit, sat with the defense. I sat in the back with representatives of other legal and human rights groups, several journalists, commission staff, a dozen military officials, and a handful of people from the Justice Department and FBI.

The hearing itself was both fascinating and disturbing. The defense, led by Major Michael “Dan” Mori (the “detailed counsel,” or appointed military counsel) and Josh Dratel (Hicks’s civilian counsel) argued several motions having to do with the commission’s jurisdiction, the selection of panel members, and the participation of expert witnesses. I know Josh because we worked together a couple of years ago on litigation before the Foreign Intelligence Surveillance Court of Review, but before today I had never heard him argue in court. I thought he was extraordinarily articulate and well prepared. Dan Mori was also very good. Unfortunately, it’s already clear that the defense team has an unusually difficult job, because many of the commission’s rules are skewed in favor of the prosecution. (ACLU Executive Director Anthony Romero discussed some of these rules in the dispatches he filed from Guantánamo back in August.) Another reason that the defense’s job is unusually difficult is that, astoundingly, only one of the three commission panelists is a lawyer.

I don’t have time to write about all of the motions that were considered today, but let me mention one that led to a particularly interesting argument. One of the charges against Mr. Hicks is that he was an “unprivileged belligerent” who attempted to murder U.S. forces in Afghanistan. The defense argued today that the commission doesn’t have jurisdiction to consider the charge because the charge doesn’t allege a violation of the law of war. The defense argued, persuasively, that with a couple of exceptions the law of war protects only “privileged” persons — a category that includes civilians but not belligerents. Because Mr. Hicks is not accused of having sought to murder a privileged person, the defense argued, he is not accused of having violated the law of war and the commission doesn’t have jurisdiction to consider the charge.

It wasn’t clear to me that the two non-lawyers on the panel — Cols. Christopher Bogdan and Jack Sparks — fully understood the argument. Col. Bogdan, at least, seemed focused not on the legal status of the U.S. soldiers in Afghanistan but on the legal status of Mr. Hicks. It seemed that, in Col. Bogdan’s understanding, Mr. Hicks had violated the law of war simply by virtue of having been an unprivileged belligerent. The defense pressed its point, but with uncertain success. At the close of argument, Dan Mori asked Col. Bogdan whether his questions had been answered. Bogdan just grimaced and said, “maybe.”

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