The Australian,  July, 2003
Rehecca DiGirolamo, Roy Eccleston - Washington correspondent

AUSTRALIAN Taliban fighter David Hicks faces execution if found guilty by one of the first American military commissions in 50 years.

President George W. Bush yesterday named Hicks among six non-AmeAcans in a military order that described them as suspected "enemy compatants" who were members of al-Qa'ida or involved in terrorism directed against the US.

The federal Government said it had held "extensive, discussions" with the Bush administration over the trial process to ensure Hicks would receive a fair and transparent trial.

Adelaide-born Hicks, 27, has been held at a US military jail in Guantanamo Bay, Cuba, since his capture in Afghanistan in November 2001. He will be assigned a US military defence lawyer but has no right of appeal against a guilty verdict, which could carry the death penalty.

Attorney-General Daryl Williams said he had objected strongly to a sentence that would make Hicks subject to the death penalty. If Hicks were, charged, he would have the right to remain silent in court. But his previous statements could be used as evidence. US officials have claimed Hicks threatened to kill. Americans after his capture.

The military order enables the US Government to charge Hicks and, prepare for a military trial. Tribunals of the same nature were last used at the end of World War II to try Nazi and Japanese war crimes suspects.

The Pentagon said there was evidence the "individuals designated by the President" may have attended terrorist training camps and been involved in activities including financing al-Qalida, providing protection for its leader, Osama bin Laden, and recruiting future terrorists.

The Weekend Australian has been told that raids on the Hicks family home in Salisbury Park and his mother's Ingle Farm home in 2001 found evidence linking Hicks to terrorist activity.

But, according to The New York Times, the first group of ,six to be charged are not considered to be major figures in al-Qa'ida and could be persuaded to enter into plea
bargains for information about Bin Laden's network.'

The other five alleged terrorists are reportedly from Britain, Yemen, Sudan and Pakistan, and are also being held at Guantanamo Bay.

It is understood Sydney man Mamdouh Habib, also being held by the US, was not among those named yesterday.

The next step is for Deputy Defence Secretary Paul Wolfowitz to decide if Hicks and the others should be charged, after which commissions would b established. There is no time frame for that decision.

Under the system put in place by Mr Bush after September 11, 2001, non-US citizens accused of terrorism can be tried by commissions of between three and seven military officers, who act as judge and jury.

If he went on trial, Hicks would be presumed innocent. The case must be proved beyond reasonable doubt and the trial should be open to the public - except when national security is at risk. Two-thirds of the officers must agree on a verdict. But to hand down a death sentence, all must agree.

Mr Hicks's lawyer, Stephen Kenny, said military commissions were far from impartial.
"If David Hicks is brought before a military tribunal ... the normal rules of evidence do not apply," Mr Kenny said. "I don't see how the Australian Attorney-General can suggest that that is a fair trial."

Hicks's father, Terry, was in transit to Pakistan last night, possibly unaware of the latest developments surrounding his son. He is retracing his son's journey as part of a documentary, and will meet Mr Kenny in New York on July 28.


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