By Lucy Bennett and wires | April 29, 2008 AUSTRALIAN man David Hicks should never have been charged with terror offences, according to Guantanamo Bay's former chief prosecutor.
Colonel Moe Davis, who oversaw the prosecution of Hicks, quit the war court last year.
He testified overnight that evidence for the war crimes tribunals was obtained through prisoner abuse, and political appointees and higher-ranking officers pushed prosecutors to file charges before trial rules were even written.
Col Davis was giving evidence at a pre-trial hearing for Osama bin Laden's driver, Yemeni prisoner Salim Hamdan, in a courtroom at the remote Guantanamo naval base in Cuba.
Since the US began sending foreign captives to Guantanamo in 2002, only one case has been resolved - that of Hicks.
Hicks avoided trial by pleading guilty to providing material support for terrorism and served a nine-month sentence as part of a plea negotiated by a Pentagon appointee without the chief prosecutor's involvement.
Col Davis testified that he "inherited" the Hicks case from a previous prosecutor and would not otherwise have charged him because he wanted to focus on cases serious enough to merit 20 years in prison and the Hicks case did not meet that test.
He said a supposedly impartial legal adviser demanded prosecutors pursue cases where the defendant "had blood on his hands" because those would excite the public more than mundane cases against document forgers and al-Qaeda facilitators.
While he was chief prosecutor, Col Davis appeared to be a stickler for the rules.
He was a vocal critic of Hicks's defence team and criticised his military lawyer, Major Michael Mori.
Col Davis threatened to charge him under the Uniform Code of Military Justice with using contemptuous language towards the president, vice-president, and secretary of defence.
Col Davis said Maj Mori was not playing by the rules and criticised his regular trips to Australia. He said he would not tolerate such behaviour from his own prosecutors.
“Certainly, in the US it would not be tolerated having a US marine in uniform actively inserting himself into the political process. It is very disappointing,” he said in May last year.
“He doesn't seem to be held to the same standards as his brother officers.”
In an interview with ABC TV's Lateline program in March last year, Col Davis insisted the tribunal process was free from political influence and was evasive on whether abusive interrogation techniques were used on prisoners.
In today's testimony, Col Davis said pressure was ramped up after "high-value" prisoners with alleged ties to the September 11 plot were moved to Guantanamo from secret CIA custody shortly before the 2006 US congressional elections and amid US presidential campaigns.
"There was that consistent theme that if we didn't get this thing rolling before the election it was going to implode," he told the corut.
"Once you got the victim families energised and the cases rolling, whoever won the White House would have difficulty stopping the proceeding."
Lawyers for Hamdan have asked the judge to throw out the charges on grounds that the tribunal process was too tainted to provide him a fair trial, and they summoned Col Davis to bolster their case.
Col Davis's strongest criticism was aimed at Brigadier General Thomas Hartmann, the legal adviser who was supposed to provide impartial advice to the trials' overseer.
He said Brig. Hartmann tried to dictate which lawyer would try cases and overrode his own ban on filing charges that relied on evidence obtained through the simulated drowning technique known as waterboarding.
Hamdan is the prisoner whose lawsuit prompted the US Supreme Court to strike down as illegal the initial Guantanamo war crimes system in 2006.
The charges against him were twice dismissed and then refiled and the military hopes to begin his trial in late May.
The Bush administration set up the widely criticised Guantanamo court to try suspected al-Qaeda operatives outside civilian and military courts.
It cited national security concerns and said captives who are not part of any national army do not deserve the rights and protections granted to formal prisoners of war.
Three other prosecutors quit the Guantanamo court in 2004 and said they thought the process was rigged to convict.
The Pentagon plans to try as many as 80 of the 280 prisoners in Guantanamo on war crimes charges, and 14 cases are pending.
