In leaked emails obtained by Australia’s ABC network, prosecutor Major Robert Preston said some of the commission’s cases were “marginal”.
“I consider the insistence on processing ahead with cases that would be marginal even if properly prepared to be a severe threat to the reputation of the military justice system and even fraud on the American people,” his email said.
In another leaked email, a second prosecutor, Captain John Carr, also expressed misgivings to a superior.
“I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused,” he wrote.
“Instead I find a half-hearted and disorganised effort … to prosecute fairly low-level accused in a process that appears to be rigged.”
Captain Carr claimed allegations of abuse of detainees had been ignored, evidence had disappeared and prosecutors had offered advice to the appointing authority.
He also said he’d been told the juries deciding the cases would be stacked.
“You have repeatedly said to the office, the military panel will be hand-picked and will not acquit these detainees and we only needed to worry about building a record for the review panel,” his email said.
Hicks’s military lawyer Major Michael Mori said he was shocked.
“I would be very surprised if the Australian government was provided any of this information at the time they were negotiating and looking at the military commission system to see if it was appropriate or not,” he told ABC radio.
But Brigadier General Thomas Hemingway, legal adviser to the military commissions, said the Pentagon had conducted its own investigation and found no legal or ethical problems.
He said the office of the Department of Defence Inspector General conducted a two-month long inquiry and concluded the allegations raised were the result of miscommunications and personality conflicts.
“We found no evidence of any criminal misconduct,” he told ABC radio.
He also said there had been a constant exchange of information with the Australian embassy in Washington and rejected the claim juries would be hand-picked to ensure convictions.
Australian Attorney-General Philip Ruddock said US officials told him they had substantial evidence against Hicks, whose military trial will begin within weeks.
He is accused of fighting alongside the Taliban in Afghanistan.