Australia's former Guantanamo Bay inmate, David Hicks, should never have been charged, according to the former Chief Prosecutor at the US military prison, Colonel Morris Davis.In the latest twist in the long-running efforts by the Bush administration to get trials up and running at Guantanamo, the former prosecutor has been called as a defence witness at a pre-trial hearing for one of the detainees.
Colonel Davis was originally a staunch supporter of the military commissions set up to try Guantanamo prisoners.
He quit the system last year shortly after Hicks was convicted, claiming there had been political interference in the cases selected for trial. Others too have left citing similar concerns, including former prosecutors Captain John Carr and Major Rob Preston in 2004.
Colonel Davis was called today to appear at Guantanamo at a hearing for the next prisoner due to stand trial, Salim Ahmed Hamdan, who was allegedly Osama bin Laden's driver.
Colonel Davis' testimony comes amidst speculation that the closure of Guantanamo Bay is now a matter of time.
He told a hearing at Guantanamo today that Bush administration appointees lobbied for charges in particular cases because they would bolster public support for Guantanamo.
Colonel Davis also disapproved of the abusive techniques used to elicit evidence from prisoners.
Lawyers for detainee Salim Ahmed Hamdan called Colonel Davis to appear at his hearing today, arguing that the former Chief Prosecutor's testimony is grounds for the case against Hamdan to be thrown out.
Australian David Hicks did not contest the charges against him, and since he was convicted in 2006, no other detainee has faced trial, with some now being held for more than six years without a day in court.
The Hamdan trial is set for May, though there is much discussion in national security circles in Washington that the closure of Guantanamo Bay is now inevitable. The three remaining Presidential candidates, Hillary Clinton, Barack Obama and John McCain, all say the facility should be shut down.
This raises the question of the fate of the prisoners who can't be released, including high level terrorist suspects such as Khalid Sheikh Mohamed, the alleged mastermind of the September 11, 2001 attacks and Hambali, the alleged architect of the Bali bombings.
Trials in regular courts for such suspects are not possible. Any charges against them would be thrown out because of irregularities and abuses in their detention and interrogation.
Two staunch academic critics of the military commissions have floated the idea of a new National Security Court in the US, using sitting federal court judges.
Under such a system the US Government could produce classified information to argue the case for the indefinite detention of certain prisoners.
The defendants would have lawyers under the proposal, although they would have fewer rights than in regular criminal cases.
Civil libertarians oppose the idea, but it may appeal to the Bush administration or to a future President McCain, Obama or Clinton, facing the politically unpalatable and arguably strategically unwise alternative of simply freeing Guantanamo inmates.
Leigh Sales @'ABC'