FORUM

[Editor's note: Professor Jones has applied for and received provisional recognition as Qualified Civilian Defense Counsel, making him eligible to appear before US Military Commissions established to try terror suspects. This column is the fifth in an exclusive series Professor Jones is writing for JURIST on terror trials and his experiences.]

In their petition for writ of certiorari to the United States Supreme Court, beige- and brown-skinned Kuwaiti nationals detained at Guantanamo are challenging the Government’s assertion that it has absolute power to do as it pleases under the banner of national security. The argument is that absolute, unreviewable power at Guantanamo creates too great a danger of tyranny and discrimination. “The government could decide to hold only Africans or Irish or Italians or Arabs, or only women or homosexuals”, according to the petition. The assertion regarding groups seemed a collateral one when first made. The larger issue - the one that presumably got the Supreme Court’s attention - related to the judiciary’s role in times of national emergency.

Subsequent events, though, suggest that the Kuwaiti petitioners may have been offbase only to the extent they included the Irish in their list of examples. Consider the circumstances of David Hicks and Mamdouh Habib, the two Australians amongst the 660 people detained incommunicado at Guantanamo. Mr. Hicks is a young Caucasian Australian. Mr. Habib is an older brown-skinned Australian citizen of Middle Eastern descent.

Last week, despite the administration’s steadfast assertion that the Guantanamo detainees are unlawful combatants entitled to neither counsel nor judicial process unless and until charged with a crime before a military tribunal, the US government not only provided Mr. Hicks with a military lawyer but also made arrangements for Hicks to meet with and receive advice from an Australian civilian attorney. It promised not to monitor conversations between Mr. Hicks and his attorneys nor seek the death penalty against him. Mr. Hicks has even been promised the opportunity to telephone and perhaps meet with his family.

All of this happened in short order after President Bush returned from a visit to Australia, in which he thanked the Australian government for its support in Iraq. The swiftness of the changes to Mr. Hick's situation is remarkable, considering that nearly two years have elapsed since the first detainees arrived at GITMO. Hicks, who has yet to be charged, will receive his lawyers this week and has been told that if convicted, he will be repatriated to Australia to serve his time. He may even get to make a nice Christmas video to send to his family.

Nary a word has been spoken nor a concession made on behalf of Mr. Habib, however. No lawyer. No communication with family. No promise of repatriation. No white Christmas.

The better treatment accorded Hicks might be defended on the grounds that the American administration has the right to make political distinctions and concession in favor of our friends and allies. The Australian government has, after all, both supported and directly expressed its concerns to the President.

Fine and dandy, but Mr. Hicks and Mr. Habib are both Australian citizens and both were captured in Afghanistan. Hicks, though, has more hope today then yesterday. There has been no change in Mr. Habib’s status. Other than that, they are distinguishable only by one other obvious fact. One can find pictures of his obviously distressed Arab wife and sons on the internet, along with pictures of Hick’s very European, equally anguished looking father.

The Kuwaitis' references to Africans, Arabs, and homosexuals might have been easily dismissed as just so much ace of spades, legal posturing were it not for remarkably similar circumstances pertaining to America’s other legal fight against alleged terrorists. That other fight is taking place in the federal district courts. John Walker Lindh, once described by TIME magazine as having been a “quiet, smooth cheeked American teenager” was captured in Afghanistan alongside his fellow American citizen Yaser Esam Hamdi, who has never been so described. When captured, the two American citizens both sported the full black bushy beard often seen in Islamic cultures. President Bush later described Lindh as a “poor unfortunate fellow,” everyone else simply as “unlawful combatants.” Lindh’s father quickly retained an attorney whose access to Lindh was almost instantaneous. United States v. Lindh was dispensed with rather favorably, given the death penalty potential, and in very short order. By darker contrast, the Government sent Mr. Hamdi to Guantanamo even though he was born in Louisiana. His ruddy appearance apparently made it a safe bet that he could not have been an American citizen. When it was later discovered that was indeed an American citizen, Mr. Hamdi was dispatched to a Navy Brig, though still denied access to counsel or the same swift and merciful resolution accorded his fellow citizen, John Walker Lindh. Other than his stay at Guantanamo, Mr. Hamdi’s case is a more like that of Jose Padilla, another brown-skinned American citizen whose treatment differs dramatically than that provided the “smooth cheeked American teenager.”

The US government continues to assert to the public and in court that enemy combatants have no rights which America is bound to respect - except, of course, with regard to Messrs. Hicks and Lindh. Recently, however, the government has announced that it will allow Mr. Hamdi to meet with an attorney. Not because he is entitled, mind you, but because the government is exercising its discretion. “Discretion” to do what, I wonder?

December 11, 2003