Judge sides with Bush administration on expanded detention powers under new terror law

By Peter Mitchell in Washington
AAP
Dec. 15, 2006

US President George W. Bush has scored the first victory in a new and drawn-out round of court battles with Guantanamo Bay inmates, including Australian David Hicks.

US District Court Judge James Robertson today ruled the Federal Court no longer had jurisdiction to hear cases involving prisoners challenging their detention at the US military base in Cuba.

Guantanamo detainees were stripped of their Federal Court access in October when Mr Bush signed the controversial new Military Commissions Act, Judge Robertson decided.

Today's ruling was quickly condemned by constitutional and human rights groups.

"This is the first time in the history of this country that a court has held that a man may be held by our government in a place where no law applies," said Barbara Olshansky, deputy legal director of the US Centre for Constitutional Rights.

Hicks, 31, has been held in US custody for five years after being picked up on the battlefield in Afghanistan.

The Australian Government has been pushing for Hicks to be tried by US military commission as quickly as possible, but legal experts predict today's ruling - the first to test Mr Bush's new Military Commissions Act - will pave the way for more legal action.

It is likely America's highest court, the Supreme Court, would be called on to make a final ruling on the legislation.

The process could take more than a year, leaving Hicks in limbo once again.

"The issues in these cases won't be finally resolved until the Supreme Court resolves them," lawyer David Remes, who represents a group of Guantanamo detainees, told The Washington Post.

In June, Mr Bush suffered a defeat in the Supreme Court when the military commission system he set up to prosecute the detainees was ruled illegal.

Salim Ahmed Hamdan - a Yemeni Guantanamo prisoner accused of being al-Qaeda leader Osama bin Laden's personal driver - was the test case for that Supreme Court decision.

Mr Bush and the US Congress responded in October to the Supreme Court loss by introducing the Military Commissions Act.

Under the new legislation, detainees lost the right to go to the Federal Court and challenge their detention.

Instead, Guantanamo inmates would go before a military commission and if found guilty they could then only contest the verdict via a Washington DC appeals court.

Hamdan was again the test case in today's District Court ruling.

Judge Robertson dismissed Hamdan's case because he said he had no jurisdiction to hear it, a point argued in court by US government lawyers.

Terry Hicks, David's father, said today he was disgusted with the latest court ruling.

"I think it is disgusting that the US has taken away a person's normal court appeal process in this way," he said.

But he remained hopeful of an appeal in the Australian Federal Court, to start tomorrow in Sydney.

Foreign Affairs Minister Alexander Downer and Defence Minister Brendan Nelson, who met US Vice President Dick Cheney and US Secretary of State Condoleezza Rice in Washington DC this week, said yesterday they had received assurances that Hicks would be one of the first prisoners prosecuted when the military commissions begin.

"We were assured Mr Hicks will be an early cab off the rank once the new system is in place," Dr Nelson said.

However, it is likely the commission process will be delayed until after a Supreme Court ruling on the Military Commissions Act.

Hicks, from Adelaide, had been charged with conspiracy, attempted murder and aiding the enemy, but the charges were dropped after Hamdan's Supreme Court victory in June.