From The Attorney General - Phillip Ruddock MP
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The Attorney General -
Phillip Ruddock MP
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What is the Government's position on the granting of Mr Hicks' British citizenship?
On 12 April 2006, the British High Court ruled in favour of upholding Mr Hicks' application for British citizenship. Mr Hicks' application for British citizenship and the outcome of the recent British High Court case are matters for Mr Hicks and the British Government. However, the Australian Government's position is that, as Mr Hicks faces serious charges, he should stand trial before the Military Commission on those charges.
Will Australia accept an application from Mr Hicks to renounce his Australian citizenship?
Any such declaration of renunciation would be considered on its merits if and when it is received.
Is Mr Hicks in solitary confinement?
Recent allegations that Mr Hicks has been moved to solitary confinement are incorrect. Mr Hicks is currently being held in the general block area of a newly completed facility in Guantanamo Bay. Mr Hicks continues to have access to exercise and outdoor facilities in group areas and he is able to communicate freely with the other detainees.
Has Mr Hicks been charged? What are the charges against Mr Hicks?
David Hicks has been charged with three Military Commission offences: conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy. He has pleaded not guilty to all charges. The substantive elements of those crimes are set out in Military Commission Instruction No. 2 (available on the Military Commission's web-site at http://www.dod.mil/news/commissions.html ). These charges relate to Mr Hicks' alleged involvement with al-Qa'ida and activities in Afghanistan.
When will Mr Hicks' trial resume?
On 14 November 2005, the United States District Court for the District of Columbia granted a stay preventing further Military Commission proceedings in Mr Hicks' case until the Supreme Court hands down a decision in Hamdan v Rumsfeld. Mr Hamdan is also detained at Guantanamo Bay and is currently appealing to the United States Supreme Court from a decision of the Court of Appeals in July 2005 that upheld the authority and jurisdiction of the Military Commission. On 28 March 2006 the United States Supreme Court heard submissions in the Hamdan appeal. It is expected that the court will hand down its decision in the Hamdan appeal around June or July.
The stay on Military Commission proceedings is a result of an application by Mr Hicks and is further evidence of judicial oversight of the Military Commission process by United States domestic courts. Mr Hicks' Military Commission case was scheduled to resume on 18 November 2005 before the stay was granted. While the Australian Government is disappointed there will be a further delay in bringing Mr Hicks' case to trial, the application for the stay was brought in Mr Hicks' name by his defence counsel (in his District Court habeas corpus proceedings), and is within his prerogative. The Government will monitor proceedings closely while awaiting the final resolution of the Supreme Court's consideration of the Hamdan case.
What is the relationship between Mr Hamdan's court case and Mr Hicks' trial?
On 15 July 2005, the United States Court of Appeals delivered its decision in Hamdan v Rumsfeld. The Court of Appeals held unanimously that the Military Commission process is authorised by the United States Congress and consequently has jurisdiction to try Mr Hamdan and other detainees held at Guantanamo Bay, including Mr Hicks.
In coming to its decision, the Court held that the United States Congress had sufficient authority through its joint resolution authorising the use of armed force and two statutory provisions contained in the United States Code. The Court also ruled that the Geneva Convention Relative to the Treatment of Prisoners of War does not confer upon Mr Hamdan a right to enforce its provisions in court and that the District Court erred in finding that Military Commissions must comply in all respects with the requirements of the United States Uniform Code of Military Justice (in other words, that it must adopt all of the procedures applicable to courts-martial).
Mr Hamdan appealed the decision of the Court of Appeals in the United States Supreme Court. On 28 March 2006 the United States Supreme Court heard submissions in the Hamdan appeal. We expect that a decision in the Hamdan case will be handed down around June or July. The Supreme Court's decision will be the ‘final and ultimate' decision in Mr Hamdan's case concerning the authority and jurisdiction of the Military Commission. In determining the Hamdan appeal, the United States Supreme Court heard submissions on the validity of provisions of the Detainee Treatment Act of 2005. This Act curtails the right of Guantanamo Bay detainees to challenge their detention in United States federal courts, giving exclusive jurisdiction to hear appeals to the District of Columbia Circuit. The United States Supreme Court will consider issues raised by these provisions when it hands down its decision in the Hamdan appeal. Mr Hicks' case has been postponed, pending the final outcome of Hamdan.
What impact will the Detainee Treatment act of 2005 have on Mr Hicks' case?
The Detainee Treatment Act of 2005 was included in the Department of Defense Appropriations Act 2006 and agreed to by the US House of Representatives and the Senate and signed by President Bush on 30 December 2005. This Act incorporates the ‘McCain Amendment' and the ‘Graham-Levin Amendment' on detainees.
Section 1005 of the Detainee Treatment Act of 2005 curtails the right of Guantanamo Bay detainees to challenge their detention in United States federal courts.
The legislation provides that the United States Court of Appeals for the District of Columbia Circuit has exclusive jurisdiction to determine:
• the validity of any final decision (made by the Combatant Status Review Tribunal – ‘CSRT') that an alien is properly detained as an enemy combatant; and
• the validity of any final decision rendered by the Military Commission.
The effect of these provisions is that there will now be only two circumstances in which United States federal courts can hear applications from Guantanamo Bay detainees: after their initial designation by the CSRT as an enemy combatant and/or after their conviction by a Military Commission.
The United States Supreme Court heard submissions on the validity of provisions in the Detainee Treatment Act of 2005 in the Hamdan appeal on 28 March 2006. The court will consider issues raised by these provisions when handing down its decision in the Hamdan case. The Australian Government will continue to monitor this process carefully.
What is the effect of the new Military Commission rule against torture?
On 24 March 2006, the United States Department of Defense issued Military Commission Instruction Number 10. This instruction prohibits the admissibility of evidence adduced under torture in Military Commissions. The United States administration has stated that this change makes clear what had already been the practice for Military Commission proceedings. The United States has continuously stated that it does not torture detainees at Guantanamo Bay.
What is your response to the comments of the UK Attorney-General, Lord Goldsmith?
I am aware that the United Kingdom Attorney General, Lord Goldsmith, stated that the Military Commission trials will not be fair and will fall short of international standards. Military Commissions are recognised as a part of United States law and their jurisdiction is specifically saved in the United States Uniform Code of Military Justice.
What has occurred so far in Mr Hicks' trial?
On 25 August 2004 a preliminary hearing was held at Guantanamo Bay. During the hearing the charges against Mr Hicks were formally placed on the Military Commission record.
The hearing was open to the media and attended by Australian Government officials and an independent legal expert, Mr Lex Lasry QC, who represented the Law Council of Australia. Mr Hicks' father and step mother, Mr Terry Hicks and Mrs Beverley Hicks, also attended the hearing and had two meetings with Mr Hicks during their stay at Guantanamo Bay. The preliminary hearing followed an announcement by the United States Department of Defense on 10 June 2004 that Mr Hicks had been charged. Motions hearings were held from 1 – 3 November 2004. Most of the motions were filed by Mr Hicks' defence team and related largely to the jurisdiction of the Military Commission and the charges against Mr Hicks. Once again, the hearings were observed by Australian Government officials. The Military Commission reserved its decision in relation to a number of motions. No evidence has yet been heard in Mr Hicks' trial.
In September 2005, the Presiding Officer of the Military Commission ordered the resumption of Mr Hicks' case in an initial session to hear motions on 18 November 2005 at Guantanamo Bay. On 14 November 2005, the United States District Court for the District of Columbia granted a stay preventing further Military Commission proceedings in Mr Hicks' case until the Supreme Court hands down its decision in Hamdan v Rumsfeld, an appeal against a decision in July 2005 which upheld the jurisdiction and legality of the United States Military Commissions. Submissions in the Hamdan appeal were heard by the United States Supreme Court on 28 March 2006 and a decision is expected to be handed down around June or July.
What about the claim that US Military Commissions do not have proper rules of evidence?
Military Commission Order Number 1, Section 5(F) provides that the accused is not required to testify during trial, and further, that a Commission will draw no adverse inference from an accused's decision not to testify.
Military Commission Order Number 1, Section 6 provides that the Commission must proceed impartially and expeditiously, strictly confine the proceedings to a full and fair trial of the charges, exclude irrelevant evidence and prevent any unnecessary interference or delay.
Military Commission Instruction Number 10 prohibits the Military Commission from admitting statements established to have been made as a result of torture.
Will the Military Commission process guarantee Mr Hicks a fair trial?
The United States Military Commission procedures were designed to afford each accused a full and fair trial. Fundamental procedural guarantees include the following:
• Each accused is presumed innocent.
• Evidence must have probative value to the reasonable person and meet full and fair trial standards.
• Evidence rules apply to both the prosecution and defence.
• Evidence obtained through torture is inadmissible.
• Evidence is heard and decided upon by a panel of impartial, independent military officers, presided over by an experienced military jurist.
• Each accused is provided an opportunity to challenge members for cause.
• The defence may call witnesses and present evidence.
• Defence counsel may cross-examine witnesses.
• There is no adverse inference drawn against an accused who chooses to remain silent.
• Attorney/client communications are privileged.
• Accused are afforded representation by a military defence counsel free of charge.
• Accused may employ additional civilian defence counsel.
• Guilt must be proven beyond a reasonable doubt to sustain a conviction.
• The accused may be present at every stage of the trial, unless the accused engages in disruptive conduct which justifies exclusion.
• Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof.
• Each Military Commission record will be subject to review by a three-member Panel.
Military Commission proceedings are open to the public. Each accused is assigned a military attorney possessing sufficient security clearances to have access to classified material. No evidence may be introduced that has not been made available to the Detailed Defense Counsel.
Military Commission Order 1 states in section 5(O) that the accused shall be afforded a trial open to the public except where proceedings are closed by the Presiding Officer in accordance with Section 6(B). Under section 6B, grounds for closure include the protection of information classified or protected by law or rule from unauthorised disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Order further states that even with this in mind, proceedings should be open to the maximum extent practicable.
The Australian Government has discussed the Military Commission procedures with the United States. As a result of those discussions, the Government secured several additional commitments relating to Australian detainees, detailed below. These commitments, plus the fundamental procedural guarantees included in the Military Commission orders and instructions (publicly available on the Military Commission's web-site:
http://www.dod.mil/news/commissions.html ), will help facilitate a fair and transparent trial.
The additional commitments relating to Australian detainees which will apply to Mr Hicks' case include:
• Based upon the specific facts of his case, the United States has assured Australia that it will not seek the death penalty in Mr Hicks' case.
• Australia and the United States agreed to work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
• Conversations between Mr Hicks and his lawyers will not be monitored by the United States.
• The prosecution in Mr Hicks' case does not intend to rely on evidence in its case-in-chief requiring closed proceedings from which Mr Hicks could be excluded.
• Subject to any necessary security restrictions, Mr Hicks' trial will be open, the media wil l be present and Australian officials may observe the proceedings.
• The Australian Government may make submissions to the Review Panel which would review Mr Hicks' Military Commission trial.
• Should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client.
• Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial.
• An independent legal expert sanctioned by the Australian Government may observe the trial of Mr Hicks.
Following the preliminary hearing in August 2004, the Attorney-General and Minister for Foreign Affairs instructed officials to seek some improvements to some operational and procedural aspects of the Military Commission process. A number of improvements, including to the rules of procedure, have occurred since then and the Government will continue to monitor the process.
Can Mr Hicks appeal if he is convicted?
Under the Detainee Treatment Act of 2005, the United States Court of Appeals for the District of Columbia Circuit has exclusive jurisdiction to determine:
• the validity of any final decision (made by the Combatant Status Review Tribunal – ‘CSRT') that an alien is properly detained as an enemy combatant; and
• the validity of any final decision rendered by the Military Commission.
Don't the e-mails written by former US Military Commission prosecutors prove the process is unfair?
The e-mails written by former United States Military Commission prosecutors which criticise the Military Commission were written in March 2004, before Mr Hicks was charged and before proceedings against him had commenced. While the e-mails refer to other detainees, they do not mention Mr Hicks. The United States administration has rejected the allegations made in the e-mails and advised that at the time it became aware of them, it conducted a detailed investigation, which found nothing to substantiate statements there had been criminal misconduct or ethical violations. The investigation concluded the matter related largely to personnel issues.
Since the e-mails were written, improvements have been made to the Military Commission processes and the Military Commission panel. Taking into account all of the relevant factors and the Commission hearings to date, the Australian Government is satisfied that the Military Commission is capable of providing a fair trial for Mr Hicks.
What are the changes to Military Commission procedure that were announced last year and how will they affect Mr Hicks' case?
The amendments which were announced on 20 September 2005 outline the following changes to the Military Commission procedures, which are applicable to Mr Hicks' case:
• The expanded panel now consists of six members, two alternative members and the Presiding Officer.
• Any decisions on motions made previously by the Commission as a whole have been revoked.
• The parties have been given a fresh opportunity to file and litigate motions in a manner which will best provide Mr Hicks with a full and fair trial.
• Having previously participated in proceedings concerning the determination of legal questions, all members of the original panel appointed to hear Mr Hicks' case, except the Presiding Officer, have been excused, to preclude any possibility that those discussions would inappropriately affect deliberations on issues.
Given the Attorney-General previously said the system was fair, how do you explain the need to make these changes?
While the Attorney-General has stated that the previous system was fair, he has never said there was no room for improvement. The reconstitution of the panel addresses concerns about the role of the legal and non-legal panel members and moving the system closer to a judge and jury system.
What are the other changes to the Military Commission system? Will they affect Mr Hicks' trial?
Subsequent to discussions with the United States Attorney General and a number of other senior executives in the United States Administration, a number of changes to the Military Commission system were announced in August 2005. The changes should serve to reassure the community that the process will be fair and transparent.
Military Commission trials will move towards a judge and jury system. Changes include:
• Only the legally qualified and experienced Presiding Officer can make rulings on matters of law, as is the case with a judge.
• Only the panel members can make rulings on matters of fact, as is the case with juries.
• The accused will be present at all times, except in classified proceedings. Any absence in classified proceedings must not be prejudicial to the accused. [Mr Hicks has been present during all his hearings to date.]
• The amount of time allowed to the legally qualified Review Panel to review Commission decisions has doubled from 35 to 70 days. The Review Panel provides an independent assessment of the issues considered by the Military Commission.
• The number of members to sit on the panel has increased. In the case of Mr Hicks, the panel will be expanded from 3 to 4 members.
The steps taken by the United States Government address the Australian Government's representations that the system should as far as possible reflect the general system of military justice. They also address concerns raised by Mr Hicks' defence counsel about the size and roles of members of the Military Commission.
What about the repatriation of nationals from the UK and other countries? Can Mr Hicks be repatriated to Australia?
The United States has indicated that a detainee will not be repatriated to their home country unless the home country can guarantee that the detainee will be successfully prosecuted or the United States has determined that the detainee is no longer of law enforcement, intelligence or security interest. The Australian Government has been advised that no prosecution against Mr Hicks in Australia is available. However, Australia and the United States are currently negotiating a prisoner transfer arrangement to enable Mr Hicks to serve any sentence of imprisonment imposed by a Military Commission in Australia.
What is the Government's response to the allegations of abuse of Mr Hicks raised on Four Corners?
Allegations of sexual abuse raised on the Four Corners program have never been raised by Mr Hicks, his lawyers or family with Australian officials in the past. If Mr Hicks or his lawyers have any further evidence to substantiate these claims of abuse, the Government will provide it to US authorities. Previous claims of abuse made by Mr Hicks have been thoroughly investigated on two separate occasions. Neither investigation revealed any evidence of abuse. Australian officials regularly visit Mr Hicks in Guantanamo Bay and have found no evidence of abuse or mistreatment.
The Government acted promptly at the time of his capture to make inquiries about Mr Hicks' welfare. The Australian Government sought assurances that Mr Hicks was being treated humanely very soon after his transfer to US custody. Australian Government officials also visited Mr Hicks soon after his transfer to US custody and reported that he appeared in good physical and mental health.
What has the Government done about allegations of mistreatment involving Mr Hicks?
At the Australian Government's request, the United States agreed to undertake a comprehensive review of the treatment of Mr Hicks at all times while in United States custody. As part of a concluded investigation ordered by former United States Deputy Secretary of Defense Wolfowitz, an examination of medical records and other documents concerning the detention of both men revealed no information to support the abuse allegations.
The Government was also advised that a second investigation conducted independently by the United States Naval Criminal Investigative Service found no information which would substantiate allegations of abuse made by Mr Hicks while in United States custody.
United States authorities advise that all Guantanamo Bay detainees are treated in accordance with international obligations and the principles of the Geneva Conventions. They are provided with proper shelter, clothing, mail facilities, reading materials, three culturally suitable meals per day and medical care. Each detainee is allowed to exercise their religious beliefs, including issuance of prayer beads, rugs, and copies of the Koran. Mr Hicks is being held within the general prison population, not in solitary confinement. The International Committee of the Red Cross is permitted access to the facility and has been allowed to meet privately with detainees.
What was the outcome of the Naval Criminal Investigative Service investigation into allegations of abuse by Mr Hicks whilst in US custody?
An investigation by the United States Naval Criminal Investigative Service (NCIS) found no information which would substantiate allegations of abuse made by Mr Hicks while in United States custody.
The NCIS investigation was independent and exhaustive. All allegations of physical abuse raised by Mr Hicks were addressed. All records pertaining to the detention of Mr Hicks were reviewed. Navy investigators interviewed Department of Defense, military and medical personnel, other US Government personnel, federal law enforcement personnel and other detainees and concluded there is no evidence to substantiate abuse allegations.
The NCIS investigation followed an earlier investigation concluded by the United States Department of Defense in August 2004 which also found that there was no evidence to support the allegations of abuse.
Has there been a recent welfare visit to Mr Hicks?
There was a visit by a Consular Officer from Australia's Washington Embassy on 16 March 2006. Mr Hicks raised several welfare-related concerns, which were raised with US authorities.
Why hasn't the Government conducted its own investigation into abuse allegations?
It would be extremely difficult for the Government to mount its own investigation into the abuse allegations. The Government does not have unfettered access to Guantanamo Bay, United States military personnel, or the detainees. At the Government's request, United States authorities agreed to conduct two investigations into allegations of abuse. Neither investigation revealed any evidence to support the allegations of abuse.
What is the Government's response to the arguments contained in the Law Council of Australia Report, (July 2005)?
On 21 July 2005 the Law Council of Australia released its Report of the Independent Legal Observer for the Law Council of Australia. This is the second report prepared by Mr Lex Lasry QC and released by the Law Council. Mr Lasry is critical of the Military Commission process, concluding that a fair trial for Mr Hicks is impossible.
Military Commission trials possess essential safeguards (including the presumption of innocence, standard of proof beyond a reasonable doubt, and the right to defence counsel) and fundamental procedural guarantees which the Government is satisfied will help facilitate a fair and transparent trial for Mr Hicks. Military Commissions are recognised as a part of United States law and their jurisdiction is set out in the United States Uniform Code of Military Justice.
Many of the arguments questioning the legality of the Military Commission process under international law and the validity of the charges against Mr Hicks are currently before the Military Commission and the American courts.
Why hasn't Mr Hicks been brought home like Mr Habib?
Unlike Mr Habib, Mr Hicks has been charged with three Military Commission offences and proceedings in his Military Commission trial have begun.
The Government will continue to impress upon the United States its desire to see Mr Hicks' case dealt with expeditiously and fairly.
Can Mr Hicks be prosecuted in Australia?
The Government has been advised that based on available evidence, no prosecution is available against Mr Hicks in Australia at this time. Making that decision is more complicated than simply identifying a criminal offence which may possibly have been contravened by a person's actions. The decision-maker must also take into account the likelihood of success, referring to factors such as available defences, the facts in question and the rules of evidence as they apply in Australian criminal law.
The Australian Federal Police considered offences existing in 2001, including offences set out in the Geneva Conventions Act 1957 and the Crimes (Foreign Incursions and Recruitment) Act 1978. As a result of their examinations, the Australian Federal Police asked the Commonwealth Director of Public Prosecutions to consider all available evidence regarding Mr Hicks' alleged involvement with the Kosovo Liberation Army, Lashka-e Taiba and al-Qa'ida/Taliban forces. After considering the available evidence, the facts in question, the rules of evidence and available defences, the Commonwealth Director of Public Prosecutions advised that prosecution was not available.
In the light of the opinions and views expressed by senior academics and a former High Court Judge, will the Government re-consider its refusal to bring David Hicks to Australia to prosecute him for an offence under Australian law?
Any notion of bringing David Hicks to Australia to prosecute him for an offence under Australian law assumes that an offence exists with which he can be charged and that there is sufficient evidence available to bring such a charge.
Relevant authorities have concluded, on the evidence available to them, that there is no Australian law under which Mr Hicks could be charged. The legal opinion proffered by Professor George Williams and Ms Devika Hovell raised nothing new that would lead authorities to conclude differently. Indeed, it is telling to note that the authors quite properly state that they have not examined the evidence and so can ‘reach no conclusion on whether there is sufficient evidence to justify charges being laid'.
Furthermore, the advice contains some arguments and assumptions which would not form a sound basis for the laying of charges for those offences, even if the evidence was available. Even the authors admit that their conclusions about the application of some offences under Australian law are ‘arguable, though not certain'.
In summary, the advice raises nothing new and the view of Australian authorities remains that the evidence available to them does not enable changes to be laid against Mr Hicks for a breach of Australian law existing at the time of Mr Hicks' alleged conduct.
Can the Australian Government enact a new offence or enact amendments to apply retrospectively to Mr Hicks?
The Government has made it clear that such a course of action is not appropriate. It raises the prospect of creating retrospectively an offence which in reality would be for the purposes of charging one person. In addition, there is no certainty that the High Court would now uphold a retrospective criminal offence created for Mr Hicks.
Can Mr Hicks serve any sentence imposed by the United States in Australia?
Australia and the United States have agreed to work on ways that Mr Hicks could serve any sentence of imprisonment imposed by a Military Commission in Australia. In order for a transfer to be legal under Australian law, it must be conducted in accordance with the International Transfer of Prisoners Act 1997. To make a transfer possible, an international transfer of prisoner arrangement is being negotiated with the United States.
Is Mr Hicks' detention in the United States legal?
Guantanamo Bay detainees are in United States custody and it is United States law and United States obligations under international law that are relevant to their detention. Additionally, the United States has established a Combatant Status Review Tribunal to assess whether each detainee is an enemy combatant. Detainees are able to appeal the decision of the CSRT to the Court of Appeals. The Combatant Status Review Tribunal has determined Mr Hicks is an enemy combatant.
Will international law arguments questioning aspects of the Military Commission trial process and Mr Hicks' case be heard?
The Government is aware that Mr Hicks' military defence lawyer, Major Michael Mori, is reported to have said that the Military Commission had refused to consider four international law experts' arguments. However, the Commission did receive written expert opinions and has indicated that it will hear arguments about international law aspects of the case.
Why has the Government not given Mr Hicks the same level of support that it has given Schappelle Corby?
The Government has closely monitored Mr Hicks' case from the outset. This has included liaising with the United States Government in relation to the Military Commission process and the case against Mr Hicks; sending officials to monitor the proceedings; seeking assurances that Mr Hicks' trial will proceed as soon as possible; securing United States agreement for investigation into his treatment whilst in United States custody; consular visits to establish his well-being; and liaising with Mr Hicks' family.
Who are Mr Hicks' Australian lawyers?
Mr Hicks has appointed two Australian Defence Force Reserve legal officers, Group Captain David McLeod and Colonel Michael Griffin, in their civilian capacity as Foreign Attorney Consultants.
Mr McLeod's and Mr Griffin's appointments as Foreign Attorney Consultants are made in their civilian capacities and not in their capacity as members of the Air Force and Army Legal Reserve respectively.
Has the Government granted Mr Hicks legal aid?
While it is not normally the Government's practise to discuss specific grants of legal aid, there has been expenditure in Mr Hicks' case of over $200,000 to Australian consultants who have been part of Mr Hicks' defence team.
Each application for financial assistance and each application for an extension of an existing grant is determined in accordance with the Guidelines for the Scheme on the basis of the information that is provided. Mr McLeod's most recent application for assistance to travel to Guantanamo Bay was approved after he provided additional information that was considered to bring the application within the Guidelines.