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Suit seeks clarification of status on 3 detainees

By MARY JACOBY, Times Staff Writer
© St. Petersburg Times
published February 20, 2002

WASHINGTON -- In his native Australia, David Hicks is known as that country's John Walker Lindh. A 26-year-old convert to Islam, Hicks grew up in a middle-class suburb and, like Lindh, was captured fighting for the Taliban in Afghanistan.

But there the similarities end, at least in terms of legal rights.

While a grand jury in Virginia has charged Lindh, a U.S. citizen, with 10 criminal counts of supporting terrorism, Hicks remains detained without charges at Guantanamo Bay Naval Base in Cuba.

A team of attorneys retained by Lindh's parents is preparing for a trial Aug. 28. In contrast, Hicks is not allowed to speak with his father, much less a lawyer.

On Tuesday, lawyers for Hicks and two British citizens detained at Guantanamo Bay filed a lawsuit in U.S. District Court for the District of Columbia seeking clarification of the detainees' status.

"What we're asking for is our clients be awarded due process of some sort. Right now they're being held in legal limbo where they are not declared prisoners of war, not charged with a criminal offense, not allowed to speak with legal counsel or anyone on the outside at all," said Jon Norris, an attorney for the detainees.

The British citizens in detention are Shafiq Rasul and Asif Iqbal. Along with Hicks, they were transferred last month from Afghanistan to the detention facility in Cuba known as Camp X-Ray.

Rasul and Iqbal, the children of Pakistani immigrants, are from Tipton, England, about 100 miles northwest of London. According to reports in the British press, they left Tipton in early October to join the Taliban and al-Qaida forces fighting the Northern Alliance and its U.S. allies.

Hicks left school at age 14 and held a string of odd jobs, according to the Australian media. At 21, he was the father of two children. A convert to Islam, he fought in Kosovo against Christian Serbs, then took off for Afghanistan, where he was captured.

On Nov. 13, President Bush issued a military order authorizing the detention of al-Qaida members, supporters of terrorism and anyone who aims to "cause injury to or adverse effects on the United States, its citizens, national security, foreign policy or economy."

The lawsuit argues the order violates the detainees' Fifth and Fourteenth Amendment rights to due process. That the detainees are not U.S. citizens should not matter, Norris said in an interview, because they are in U.S. custody and therefore retain basic due-process rights.

A Pentagon spokesman said Tuesday he could not comment on pending litigation.

Interestingly, President Bush's decision not to classify the detainees as prisoners of war could weaken the government's argument in the case, a human rights advocate said.

Under the Geneva Conventions, POWs can be held as long as a conflict continues. They can be held after a conflict only if charged with a crime.

It is unclear under what authority the detainees are being held, said Tom Malinowski of Human Rights Watch.

Sunday on the Fox News Network, Deputy Defense Secretary Paul Wolfowitz was asked if the United States will keep prisoners in Guantanamo indefinitely. "That's probably a good way to think about it," he said.

Wolfowitz said the "principal objective" in holding the prisoners is "to get whatever information we can get them to give us about (terrorist) networks elsewhere."

"Then, ultimately, there are decisions about whether, if they are guilty of a crime, is it something to be tried in the United States, or is it something to be tried in another country. If it's in the United States, there are various options for doing that. So we're a long way, I think, from taking these people to trial," Wolfowitz said.

On Feb. 7, Bush declared the Guantanamo prisoners who had fought for the Taliban to be covered by the Geneva Conventions, because Afghanistan signed the 1949 treaties that outline treatment of detainees during wartime.

But he said the al-Qaida forces were not covered by the conventions, though he pledged to adhere to the treaties' requirement of humane treatment.

Bush said neither group would be formally classified as prisoners of war, a position that appears to be a political compromise more than a faithful interpretation of the definition of POW under the conventions, Malinowski said.

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