MELBOURNE - Australian terror suspect David Hicks will face a US military court within a month charged with providing material support for terrorism, but a charge of attempted murder against him has been dropped.
The United States laid the charge against Hicks today, making him the first detainee in the war-on-terror era to be charged under the new US law for military commissions.
Once Hicks, 31, is notified of the charges - probably today - he will be arraigned within 30 days and then a military judge will have 120 days to form the military commission, a Pentagon spokesman said.
Judge Susan Crawford dismissed a second charge of attempted murder against Hicks after concluding there was no "probable cause" to justify it, said Commander Jeffrey Gordon, a Pentagon spokesman.
The military offered no immediate explanation for why the attempted murder charge had been dropped.
But Hicks' military lawyer Major Michael Mori said it was an admission by the US that the charges laid originally against Hicks were made up and had no basis in law and fact.
"It's disgusting that he has spent five years in Guantanamo for made-up charges," Maj Mori told reporters in Melbourne.
"Now they are doing it again. They are repeating history by creating a new crime after the fact and trying to apply it to David retroactively."
Maj Mori said he would seek a meeting with Australia's attorney general to complain about the new charge and demand Australia act to bring Hicks home.
"It's about time they took some action and just didn't rely on US assurances in the matter," he said.
Prime Minister John Howard denied Hicks was being charged retrospectively, saying the material support charge had existed since 1994.
"The reason why this is happening is that the charge is not retrospective," Mr Howard told Macquarie regional radio.
Hicks has been held without trial in Guantanamo Bay for more than five years after being captured in Afghanistan in late 2001.
Major Mori said the serious charges the American military originally accused Hicks of two years ago no longer stood.
"None of the original charges - conspiracy, aiding the enemy and attempted murder by an unprivileged belligerent - have been recharged.
"This is an admission by the US that there was no basis for the original charges and that the US had no justification to hold David for five years on those made-up offences.
"David has been charged with only one offence - material support of terrorism.
"The material support charge has never existed in the laws of war.
"It was created in October 2006.
"The US is applying this offence to David retrospectively even though Australian (government) ministers have said that is inappropriate.
"After five years in Guantanamo, David has no hope of facing a fair trial, which would have been provided to an American a long time ago," Maj Mori said.
Hicks is accused of attending al-Qaeda training camps in Afghanistan before the September 11, 2001 terrorist attacks on New York City and Washington DC.
If found guilty of providing material support for terrorism, Hicks, from Adelaide, faces a maximum penalty of life in a US military prison.
However the chief US military prosecutor at Guantanamo Bay, Colonel Moe Davis, says he would be unlikely to ask for life imprisonment for Hicks.
He denied he was disappointed that the more serious charge had been dropped, as the remaining charge still carried a maximum penalty of a life sentence.
"As I have said all along I don't anticipate us asking for a life sentence, but as far as exactly what number of years we will argue for at this point we haven't made a final decision," he told ABC radio.
"I think if you look at the material support for terrorism charge I think that provides a fair representation of the conduct that we seek to hold Mr Hicks accountable for."
Col Davis said Hicks' defence team could make a plea bargain at any time.
He said the charge sheet should be formally served on Hicks today.
Hicks' father Terry Hicks said he felt no relief that charges had been laid and had no renewed faith in the federal government over the progress in his son's case.
Mr Howard has recently been pressing the US to deal quickly with Hicks.
But Terry Hicks said: "To me it still looks as if they want this over and dealt with and finished before the (federal) elections."