The Pentagon on Thursday formally accused an Australian citizen being held at Guantanamo Bay, Cuba, with a single charge of providing material support for terrorism, setting the stage for the first military trial of a terrorism suspect under legislation that Congress passed last year.
The charge alleges that David Hicks, 31, a onetime Outback cowboy and kangaroo skinner, was in league with al-Qaida at the time of the U.S. invasion in 2001, had met with al-Qaida leader Osama bin Laden and had joined Taliban and al-Qaida supporters who were fighting U.S.-allied forces outside Kunduz, Afghanistan, during combat Nov. 9, 2001.
Hicks fled the fighting with bullets flying overhead as U.S.-allied tanks roared through trenches, the charges claim, and was captured as he was attempting to flee to Pakistan.
Under new procedures, which Congress approved after the Supreme Court ruled that an earlier Pentagon trial scheme was illegal, Hicks must be arraigned within 30 days. His trial must be within 90 days after that, meaning his case will go before a military commission by July.
It would be the first U.S. war-crimes trial since World War II.
The decision to charge Hicks only with supporting al-Qaida was something of a surprise. Prosecutors initially also had charged him with attempted murder, alleging that he had directed "small arms fire, explosives or other means and methods with the intent to kill diverse persons."
But that charge was crossed out on the official charge sheet by Susan J. Crawford, a former chief of the military appeals-court system whom Defense Secretary Robert Gates recently put in charge of the commission's process.
The Pentagon offered no explanation why the charge was dropped, merely releasing the original charge sheets with a bold pen stroke across the attempted murder section, accompanied by Crawford's handwritten initials and Thursday's date.
Hicks' defense attorney, Marine Maj. Dan Mori, slammed the prosecution, charging that Hicks had been held for five years at Guantanamo on "made-up offenses."
"David has been charged with only one offense: material support of terrorism," Mori said. "Such a charge has never existed in the laws of war."
Other international law experts also questioned the charge.
"If he's not in a foreign army, not in a uniform, simply a guy who has shown up with an AK-47 and starts taking potshots at us, he's not a foreign combatant. He's a common criminal. You don't try him in a military commission," said Michael Byers, a professor of international law at the University of British Columbia in Canada.
Byers, who has taught at law schools in the United States, Israel and South Africa, said the Bush administration sought to create a third kind of justice for alleged al-Qaida terrorists that didn't exist under international law or existing U.S. military or civilian law.
"If you were a prisoner of war who had violated the laws of war, then you could be charged with a war crime," he said. "And if you were a civilian who had attempted to kill someone you could be charged with murder; and this middle category simply didn't exist."
Hicks is among the best-known captives at the remote U.S. Navy base in southeast Cuba, in part because his five-year detention without trial has stirred controversy in human rights circles in his homeland, a staunch war-on-terrorism ally of the Bush administration.
The eight-page charge sheet casts him as an illegitimate warrior trying to repel the 2001 U.S. invasion that toppled the Taliban and routed al-Qaida in reprisal for the 9-11 attacks.
It describes the Christian-born Hicks as a globe-trotting convert to Islam who fought as a member of the Kosovo Liberation Army in the Balkans before traveling to Pakistan in 1999, where he joined a terrorist organization known as the Army of the Righteous or Army of the Pure.
It says he traveled to Afghanistan in 2001, where he attended al-Qaida training camps, stayed in a residence that also housed shoe-bomber Richard Reid and met al-Qaida leader Osama bin Laden, to whom he complained about a lack of English-language training materials.
At one point during the U.S. invasion of Afghanistan, the charge sheet alleges, Hicks was issued an AK-47 rifle and he guarded a tank.
Later, near Kunduz, he allegedly spent two hours on the front line before it collapsed and was forced to flee. During the retreat, Hicks saw "bullets flying and (U.S. ally) Northern Alliance tanks coming over the trenches." Also present at that battle was American John Walker Lindh, who's now in a U.S. prison.
Hicks has been at remote Guantanamo since the prison camp was established in January 2002, in a crude compound called Camp X-Ray.
The Pentagon offered no explanation on why it charged Hicks first.
The chief prosecutor, Air Force Col. Morris Davis, last month recommended charges against three captives: Hicks, Canadian Omar Khadr, 20, and Yemeni Salim Hamdan, 36, bin Laden's onetime driver in Kandahar, Afghanistan.
It was Hamdan's Navy defense lawyer who successfully challenged the first war-crimes court format all the way to the Supreme Court.
(c) 2007, McClatchy-Tribune Information Services.
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