U.S. Charges Australian Detainee in New Military Commissions: Hicks

The United States filed charges Thursday, March 1, against David Hicks, an Australian suspected of aiding the Taliban, and the first “War on Terror,” Guantanamo Bay detainee to be charged under the new military commission laws.^[1]

Australian officials have asked the United States not to bring charges against Hicks, citing the fact that Australia has been an unwavering ally to the Bush administration in the war on terrorism.^[2] However this plea fell on deaf ears as Hicks was charged with "providing material support for terrorism," a crime for which the punishment can be as severe as life imprisonment.^[3]

Hicks’ trial would be held in a special military commission rather than a civilian court, and opponents of this system have vowed to challenge the constitutionality of the military tribunal proceedings.^[4]

Hicks was among 10 detainees who had been charged with crimes under an earlier formulation of the military commissions, however those commissions were declared unconstitutional last year by the Supreme Court.^[5] In the Hamdan decision the Supreme Court challenged the validity of the military commissions, which were convened to try detainees for violations of the law of war.^[6] These commissions did not comply with the Uniform Code of Military Justice (UCMJ) or the law of war, as incorporated in the UCMJ and embodied in Common Article 3 of the Geneva Conventions, which the Court held applicable to the war on terror.^[7]

In response to Hamdan, Congress passed the Military Commissions Act of 2006 (MCA),^[8] a law that outlined the rules for trying terrorism suspects; the system is intended to protect classified information and provides detainees with fewer rights than civilian or military courts.^[9]

It will be interesting to see what happens in this process, since it remains to be seen if the U.S. may prosecute suspects for U.S. crimes that took place in a conflict that is governed by the international laws of war.^[10] The war against the Taliban, for which these detainees are being held, is an armed conflict and as such falls under the laws of war outlined in Common Article III of the 1949 Geneva Conventions,^[11] thus the Geneva conventions should be the superseding law of the military commissions, not a truncated version of U.S. law.

Common Article 3 of the Geneva Convention Relative to the Protection of Civilian Person in Time of War states that, “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,^[12] each Party to the conflict shall be bound to apply, as a minimum,” certain provisions.^[13] Some of these provisions are:

- the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

• violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
• taking of hostages;
• outrages upon personal dignity, in particular humiliating and degrading treatment;
• and
  the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.^[14]

We have previously discussed the crime of providing material support to terrorists here, and here.

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^[1] U.S. charges Australian with aiding Taliban, AP (via CNN), March 2, 2007.
^[2] Id.
^[3] Id.
^[4] Id
^[5] See, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)
^[6] Id.
^[7] Id.
^[8] Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
^[9] Including the suspension of habeas corpus rights for Non-U.S. Citizen detainees who are labeled “enemy combatants.” Id.
^[10] An armed conflict between parties who are not separate sovereign nations, or whose participants do not meet the criteria outlined in Common Article II of the Geneva Conventions, is governed by Common Article III to the four 1949 Geneva Conventions. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 6 U.S.T. 3114U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287.
^[11] Id.
^[12] The Geneva Conventions are the only treaties that exist that are truly international law, in that almost every nation on the Earth is a signatory. ICRC.org, The Geneva Conventions, http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions (last visited March 2, 2007)
^[13] Geneva Convention relative to the Protection of Civilian Persons in Time of War, Apr. 21-Aug. 12, 1949, Pt. 1, Art. 3.
^[14] Id. (emphasis added)

Student uses Powdered Sugar in Anthrax Threat

Sujithkumar Venkatramolla, a graduate student from India, made bomb and anthrax threats which shutdown the University of Missouri-Rolla.^[1] Venkatramolla was arrested on campus early Tuesday, February 27, after he walked into a civil engineering building wielding a knife, holding paper bag and saying he had a bomb and anthrax.^[2] Police ultimately restrained him with a stun gun after he refused to relinquish the knife. According to Police Chief Mark Kearse, Venkatramolla was depressed and apparently distraught over grades.^[3]

The bomb and anthrax threats were determined to be a hoax, and a thorough search of the building found no trace of explosives.^[4] The white, powdery substance found on the man was simply powdered sugar, said Lt. Col. David Boyle of the Missouri National Guard at Fort Leonard Wood.^[5]

Venkatramolla was charged in the state of Missouri, Wednesday, February 28, with armed criminal action, resisting arrest, false report of a bomb threat, making terrorist threats, and first-degree assault of a law enforcement officer.^[6]

In Missouri a person commits the crime of making a terrorist threat if that person communicates a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: 1) With the purpose of frightening ten or more people; 2) With the purpose of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation; or 3) With reckless disregard of the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation; or 4) With criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.^[7]

Terrorist threat is also very similar to the United States Federal crime of “false information and hoaxes,”^[8] which have been previously discussed here.

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^[1] Jim Salter, Graduate student charged with terrorist threats in anthrax, bomb scare at Missouri university, AP (via Boston Herald), February 28, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Mo. Rev. Stat. § 574.115 (2007).
^[8] 18 U.S.C. §1038 (2007).

Imam from Georgia Sentenced for Providing Material Support to Hamas

Mohamed Shorbagi, the imam of a Georgia mosque, pleaded guilty to providing support to the militant group Hamas. He was sentenced, Tuesday, February 27, to more than seven years in prison, although he could have faced up to 15 years in prison.^[1]

At the sentencing, Shorbagi said he realized that some of his actions were wrong.^[2] He pleaded guilty in August to a charge of providing material support to Hamas and also testified in a Chicago case against a man identified by authorities as a Hamas operative.^[3]

Prosecutors asserted that between 1997 and 2001, Shorbagi provided financial support to Hamas through donations made to a charity called the Holy Land Foundation for Relief and Development.^[4] Hamas was designated by the United States as a foreign terrorist organization on Oct. 8, 1997.^[5] After that, and continuing until Dec. 4, 2001, Shorbagi provided financial support to Hamas and conspired with unnamed others to provide such support.^[6] The government asserts that Shorbagi knew some or all of the money was going to Hamas, because he was a Georgia representative for Hamas.^[7]

We have previously discussed the crime of providing material support for terrorism here.

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^[1] Daniel Yee, Ga. Imam Sentenced For Aiding Hamas, AP (via Houston Chronicle), February 28, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Dept. of Justice, Georgia Man Sentenced to Federal Prison For Material Support of Foreign Terrorist Group, PRNewswire-USNewswire, February 28, 2007.
^[6] Id.
^[7] Id.

Terror Suspect Held Without Bail: Maldonado Update

Daniel Joseph Maldonado, who was accused of receiving training from al-Qaeda in his efforts to help overthrow the Somali government, will remain in jail without bond until his trial, a federal judge ruled Wednesday.^[1] We have discussed this case previously, here.

During a two-day probable cause and detention hearing, FBI agents and prosecutors portrayed a violent young man who eagerly trained alongside al-Qaeda operatives while learning about bombs and firearms.^[2] He is also accused of working to turn Somalia into “another Iraq” where insurgents would come in and terrorize the country and of recruiting others for this cause.^[3]

Defense attorneys described Maldonado as a man who was driven out of the U.S.by anti-Muslim sentiment.^[4] He and his family moved out of the country so they could live at ease as Muslims.^[5] ''I did intend to open up a bookstore to generate some money,'' Maldonado said a statement, parts of which were read in court Wednesday by defense attorney Brent Newton.^[6]

Maldonado faces charges of undergoing military training with a terrorist organization and conspiring to use a weapon of mass destruction, specifically a bomb. If convicted, he faces up to life in prison.^[7]

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^[1] Juan A. Lozano, Judge rules terror suspect held without bond, AP (via Boston Globe), February 21, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.