Legal history at Guantanamo Bay

The BBC's Daniel Lak has been witnessing a controversial piece of legal history - the military tribunals at Cuba's Guantanamo Bay. In this report he describes a meeting with the father of one of the suspects, a 29-year-old Australian from Adelaide.

Almost 600 detainees are held at Guantanamo

It's been nearly three years since the attacks in New York and Washington on 11 September 2001.

America quickly declared a war against terrorism and used its massive military might to topple the Taleban in Afghanistan, the regime that hosted al-Qaeda.

Hundreds and hundreds of men were arrested during that campaign, and many of them now live in this once-obscure corner of Cuba.

Open process?

I say "live" when, of course, I really mean detained. Arabs, Pakistanis, Malays, Africans, Britons and Australians are among the inmates here.

And finally this past week, four of them got their day in court that everyone from Amnesty International to the British government said was long overdue.

I went to Guantanamo Bay with a gaggle of 65 journalists, some human rights activists and representatives of foreign governments.

These were preliminary hearings

We were there to see the trials, of course, but our presence also helped support the American government claim that a truly open legal process was taking place.

Open is perhaps a bit over-optimistic. All of us covering the trial had to be escorted everywhere on the base, even on the requisite outings to the local bar.

The human rights observers could watch court proceedings, but they could do little else.

The diplomats were seldom seen and the scurrying civilian types from Washington who watched the hearings every day were impossible to talk to. They seemed, shall I say, spooked by our curiosity.

Al-Qaeda link?

The court proceedings were preliminary hearings, the beginnings of the process and they were fascinating.

Legally obscure, often complex and ridden with military acronyms, but redeemed always by the chance to see the detainees from Guantanamo Bay in the flesh - men accused of horrible crimes - as human beings, rather than stereotypes.

Among the various dramas, Salim Ahmed Hamdan, a Yemeni, admitted he was Osama Bin Laden's driver but denied being a member of al-Qaeda.

Ali Hamza al-Bahlul - also a Yemeni - spoke rivetingly in Arabic and seemed to say he was from al-Qaeda. But a shocked military judge stopped him and recessed the court, just as he was about to say what his role in 11 September had been.

Father's support

Most fascinating to me and other reporters was David Hicks, a 29-year-old Australian.

Now we may well be guilty of the charge that this was because he was a white-skinned convert to Islam, as opposed to an Arab or a Pakistani, who perhaps had rather more reason to take up arms in a militant religious cause.

But you can't help but wonder how a middle-class upbringing in Adelaide leads to Afghanistan and war crimes charges.

How did Hicks come to be charged with war crimes?

David had good lawyers, but he also had the potent advocacy of his father, Terry Hicks, who came all the way from his home in Australia to see his son for the first time in nearly five years.

The elder Mr Hicks was engaging, compassionate and intelligent. He was also funny.

Asked by a solemn American reporter how David came to Guantanamo Bay - meaning what events in his life had brought him to such a place - Mr Hicks replied in his laconic accent: "He flew... I mean, it's a long way to swim."

The 54-year-old man also shed tears a few times in public and kept insisting that his son was not a killer or a dangerous man.

But you could also sense an undercurrent of something else - perhaps a troubled history between parent and child and a father's feelings of guilt - I'm not sure.

Legal obstacles

My last encounter with Terry Hicks was on a small plane leaving Guantanamo.

As we banked over the Caribbean Sea, the entire Naval base was spread out below us.

Terry Hicks wiped away the tears

We could see the buildings of Camp Echo, where David was being held. Mr Hicks's lawyer pointed that out, and the detainee's father waved and took a photo.

He also wiped away a stray tear as the plane tiled back upright and the wing hid Camp Echo.

I'll be back to Guantanamo Bay for the military trials, once they start - if they start.

America's legal community is using every means it can to stop this process - the courts, advocacy, even citing the objections of foreign governments such as Britain's to the process.

My own view is that David Hicks and his fellow inmates will stay in that weird little corner of Cuba for some time to come.

Many of them will face the full legal process, no matter what the controversy and concerns.

For many Americans, the outrage over 11 September has not faded with time.

Even bringing the detainees to trial is proving to be a huge legal challenge - a minefield, if you like.

Each new case raises new points of law and with nearly 600 people awaiting trial in Guantanamo Bay, it could be years or even decades before they get their days in court.

From Our Own Correspondent was broadcast on Saturday, 28 August, 2004 at 1130 BST on BBC Radio 4. Please check the programme schedules for World Service transmission times.