SAVE A LIFE - Foreign Prisoners Support Service

MARK COLVIN: The American military lawyer for the Australian Guantanamo Bay inmate, David Hicks, has ruled out striking a plea deal for his client.

Major Michael Mori says he sees no reason why Hicks would break at this point.

The Australian is expected to face a US Government Military Commission early next year and intends to plead not guilty.

His defence team is likely to challenge the commission in the US federal court. That could ensure Hicks spends at least two more years in limbo at Guantanamo Bay.

The Attorney-General Philip Ruddock has recommended a plea bargain as the fastest way to get David Hicks out.

But as National Security Correspondent Leigh Sales reports, the stakes in the case are now so high between the Bush administration and its opponents, that a plea deal is difficult.

LEIGH SALES: The Attorney-General Philip Ruddock believes a plea bargain would give David Hicks his best chance of an exit from Guantanamo Bay sooner rather than later.

PHILIP RUDDOCK: And that's a process by which parties are able to negotiate a lesser charge and negotiate what level of penalty might be appropriate and that agreed position can then either be confirmed or squashed by the military commission.

And if you wanted to resolve the issue quickly…

PRESENTER: Yes.

PHILIP RUDDOCK: That may be a way forward.

LEIGH SALES: If the Hicks legal team struck a plea deal, it's possible Hicks could be back in Australia within months, possibly even out on the streets, if US prosecutors agreed the five years he's already served at Guantanamo are enough.

But Defence counsel, Major Michael Mori, says a guilty plea is out of the question.

MICHAEL MORI: Absolutely, first we'd need the system to be set up and then we'd need some charges before we even got to that stage.

David pled not guilty back in November of 2004 and we we're going to fight his case, and we'll fight it tomorrow or in the next month and if they think that they're going to wear him down, I hope David doesn't break down and I don't see any reason why he would at this point.

LEIGH SALES: But in the past, when pressuring the Australian Government to bring his client home, Major Mori has argued that Hicks is close to a mental breakdown.

David Hicks made an extensive confession to the Australian Federal Police in a five-hour interview in 2002, and signed a statement for the US military admitting he trained in al-Qaeda camps.

Given that reality, once the new charges are in place, the defence team will have to deliberate about whether it's in their client's best interests to plead guilty and strike a deal, or to continue challenging the system, ensuring his five year stay at Guantanamo continues indefinitely.

Ultimately, the decision should be David Hicks'.

MICHAEL MORI: It, the reality is he's sitting down there in solitary confinement in Guantanamo. He's locked in a cement room, steel door, 24 hours a day, no human contact. I don't know how he's lasted this long.

All I can say is when I last saw him, he wanted to fight and obviously the problem is, we just won't be able to fight for him and give him a fair go and a fair trial.

LEIGH SALES: The Attorney-General says the Australian Government will play no role in any possible plea negotiations.

PHILIP RUDDOCK: We're not consulted on those matters and I think it would be quite inappropriate for us to be party to it. I mean, this is a process in which the Americans in their justice system are dealing with those people that they are detaining.

We've pushed ourselves into the game to say we want these issues dealt with as quickly as possible. And that's been the approach I have taken and in all my discussions with the Americans, I've not sought to form a judgment, to access the evidence or form a judgment on it.

LEIGH SALES: The stakes surrounding these military commissions are now incredibly high.

On one side stands the Bush administration, trying to justify the existence of Guantanamo and desperately needing this system to successfully try at least a couple of detainees to prove its legitimacy.

On the other side are the opponents of the White House, the lawyers, the human rights activists and the civil libertarians who vehemently want the American courts to strike the commissions down, rendering the legal arm of the President's war on terror invalid.

David Hicks is a just small figure in the middle of a huge ideological battle, and the external pressures on his case are tremendous.

MARK COLVIN: National Security Correspondent, Leigh Sales.

PM - Thursday, 19 October , 2006 18:18:00

Reporter: Leigh Sales