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2005/21: Should David Hicks be tried by an American military commission?
Photos: David Hicks, who allegedly trained and fought with "jihadists" and was imprisoned in Guantanamo Bay, Cuba
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The issue at a glance
On December 9, 2001, Australian David Hicks was captured among Taliban forces in Afghanistan by Northern Alliance troops. In January 2002, David Hicks was transferred to the United States military prison at Guantanamo Bay, Cuba, awaiting charges and then trial before a military commission established by Presidential Military Order in November 2001. The commissions will only try non-United States citizens.
It was not until June 11, 2004 that David Hicks was officially charged by the United States military authorities with conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy. Several trial dates have been set and the trial then postponed. By August 2005, David Hicks had been detained without trial for three years and nine months.
Critics of the military tribunals have argued that even when David Hicks is finally tried it is unlikely he will receive fair treatment. On August 1, 2005, it was reported that two former prosecutors with the mitilary commissions had registered their severe reservations about the trial procedures to which they were then party, arguing the commissions were 'rigged' to ensure conviction. These criticisms join a growing number of concerns expressed by many others from within the Australian legal community and elsewhere.
Many other nations have negotiated with the United States to have their citizens avoid trial before the military commissions. The Australian Government remains satisfied with the commission process.
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Background
The nature of the military commissions
On November 13, 2001, President Bush issued a Military Order, which authorised the trial of non-U.S. citizens suspected of terrorism before military commissions. These specially created tribunals do not provide a number of the protections given in civilian courts or in U.S. military courts.
The President's Order required the Secretary of Defence to develop regulations and procedures under which the military commissions would operate, and to appoint the officers who would sit on them.
There are a number of differences between military tribunals and civilian courts.
- Convictions in civilian courts must be unanimous, while the military tribunals would be able to convict by a two-thirds majority.
- Different rules of evidence apply, with lower standards for admission in military tribunals.
- Defendants have a limited right to appeal against convictions in military tribunals; in the US military commissions the only right of appeal is to the President or the Secretary of Defence.
- Civilian trials must be open to the public, while military commissions will be held in camera (secret).
The first six men to be tried before a military commission
In July 2003, the United States Administration announced that six detainees held at the U.S. Naval Base at Guantanamo Bay, Cuba would be the first to be tried before the commissions.
On February 24, 2004, charge sheets alleging conspiracy to commit war crimes were issued against two of the these men, Ali Hamza Ahmed Sulayman al Bahlul, of Yemen, and Ibrahim Ahmed Mahmoud al Qosi, of Sudan.
On June 11, 2004, charges were issued against a third detainee, Australian David Hicks, alleging conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy.
On June 29, 2004, the Department of Defence announced that charges had been "referred to a military commission" in all three of these cases.
On July 13, 2004, charges were also issued against Salim Ahmed Hamdan, of Yemen, alleging conspiracy to commit murder, destruction of property, terrorism and others acts of violence.
Preliminary hearings began for the four men in the week beginning August 23, 2004.
On November 8, 2004, the trial of Salim Ahmed Hamdan before a military commission was abruptly halted due to a decision by Judge James Robertson in the District Court of the District of Columbia, holding that military commissions as currently constituted violated U.S. and international law.
Charges have yet to be issued against the other two of the original six designees, Feroz Abassi and Moazzem Begg.
On July 7, 2004, the Department of Defence announced that the President had determined nine more detainees at Guantanamo Bay were subject to the military commission order, but did not disclose the nine detainees' identities. No charges have been issued against these men either.
Chronology of events since Australian terror suspect David Hicks' capture:
December 9, 2001: David Hicks was captured among Taliban forces in Afghanistan by Northern Alliance troops.
January 2002: David Hicks was transferred to the United States military prison at Guantanamo Bay, Cuba.
October 2002: An Australian lawyer working with detainees at Guantanamo Bay claimed that David Hicks and fellow Australian detainee Mamdouh Habib were being tortured.
July 4, 2003: David Hicks was designated as one of six Guantanamo Bay inmates eligible to be tried before United States military commissions.
December 4, 2003: US Marine Corps Major Michael Mori was assigned to represent David Hicks at a military commission.
December 11, 2003: Major Mori and Adelaide lawyer Stephen Kenny visited David Hicks for the first time since his capture.
May 21, 2004: The Australian government said it was investigating claims that United States authorities had abused David Hicks and Sydney terror suspect Mamdouh Habib.
May 30, 2004: Prime Minister John Howard said David Hicks could face a military commission in August.
June 3, 2004: Australian parliamentary senate estimates committee was told the United States had launched a formal investigation into the treatment of Hicks and Habib.
June 6, 2004: Prime Minister John Howard announced that charges against David Hicks had been presented to the United States military appointing authority.
June 11, 2004: David Hicks was officially charged by the United States military authorities with conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy.
June, 2004: The Australian Attorney-General, Philip Ruddock, ruled out trying Hicks and Habib in Australia.
August 5, 2004: David Hicks filed an affidavit declaring that he had been tortured, abused and ill-treated during his detention by United States military authorities, and that he saw and heard similar treatment inflicted on other detainees.
August, 2004: A United States investigation found Hicks and Habib were not abused while detained by United States captors.
August 25, 2004: David Hicks pleaded not guilty to all charges before a United States military commission, which set January 10 2005 as the date for his trial to start.
October 22, 2004: Three of the six officers who would pass judgement in David Hicks' trial were dismissed, after defence lawyers claimed potential bias.
November 3, 2004: David Hicks' trial was delayed by two months, to March 15.
December, 2004: Lawyers said FBI emails and a Red Cross reported back up torture claims.
January 11, 2005: It was announced that Habib was to be released without charge.
January 27, 2005: The Australian Federal police chief, Mick Keelty, announced that Habib would not be charged in Australia.
January 28, 2005: Habib left Cuba for Australia.
Internet information
On September 28, 2001, an article by John Dean, former legal adviser to President Richard Nixon, was published outlining the form of trial he believed would be appropriate for those accused of terrorism. Written immediately after the September 11 attacks on the United States, Dean's 'Military Tribunals' have many of the features of President Bush's subsequent 'military commisssions.'
Dean's proposals can be found at http://writ.news.findlaw.com/dean/20010928.html
In November 2001 the Wall Street Journal produced an editorial arguing that terrorists were not entitked to the full rights guaranteed under United States law. The editorial was titled 'Terrorists on trial: the case for military tribunals'
It can be found at http://www.opinionjournal.com/editorial/feature.html?id=95001479
In 2004 the Middle East Quarterly, the trimonthly publication of the Middle East Forum, published an article by Ted Lapkin titled, 'Does Human Rights Law Apply to Terrorists'. Lapkin's article argues that it does not and that many international laws intended to protect individual rights, such as the Geneva Convention, are not relevant when dealing with terrorists.
The Middle East Forum is a think tank which works to define and promote American interests in the Middle East through research, publications, and educational outreach. The Forum's policy recommendations include fighting radical Islam and convincing the Palestinians that Israel is permanent.
Ted Lapkin is the associate editor of The Review, the monthly journal of the Australia/Israel & Jewish Affairs Council.
The opinion piece can be found at http://www.meforum.org/article/651
In January 2005 the American Law Division produced a report for Congress titled, 'The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice'
The report can be found at http://www.fas.org/irp/crs/RL31600.pdf
In March 2003 the BBC's Richard Allen Greene produced an article explaining the operation of President Bush's military commissions and outlining the case both for and against these commissions. This is a clear informative article. It can be found at http://news.bbc.co.uk/1/hi/world/americas/1701789.stm
In March 2002 Amnesty International, the international human rights organisation, produced a critique of the United States military commissions. Titled, 'USA Military commissions: Second-class justice', the article can be found at http://web.amnesty.org/library/Index/ENGAMR510492002
Human Rights First is a United States-based human rights organisation. It has produced an overview of the intended operation of the military commissions. This essentially critical overview can be found at http://www.humanrightsfirst.org/us_law/detainees/militarytribunals_overview.htm
On August 2, 2005, The Sydney Morning Herald ran an editorial criticising the operation of the military commissions. It was titled, 'Guantanamo: America's shame'
This editorial can be found at http://www.smh.com.au/news/editorial/guantanamo-americas-shame/2005/08/01/1122748578646.html
On August 5 2005 The Sydney Morning Herald published an opinion piece by Richard Ackland titled 'No justice as Hicks thrown to the wolves'
The article can be found at http://www.smh.com.au/news/opinion/no-justice-as-hicks-thrown-to-the-wolves/2005/08/04/1123125851922.html
On August 6 2005 Sydney Morning Herald columnist Adele Horin published an opinion piece arfuing that David Hicks and others in his position were entitled to a properly constituted trial, rather than a trial before a miltary commission. Horin's opinion piece can be found at http://www.smh.com.au/news/opinion/good-bad-or-ugly-a-fair-trial-is-a-right/2005/08/05/1123125902970.html
On August 4 2004 the World Socialist Web Site ran an article by Kate Randall titled, 'Military commissions' prosecutors charge: trials rigged against Guant namo detainees'. The article can be found at http://www.wsws.org/articles/2005/aug2005/guan-a04.shtml
Arguments against David Hicks being tried by an American military commission
1. The military commissions are discriminatory
It has been claimed that the military commissions are discriminatory as they are not being applied to United States citizens charged with terrorist activities. According to this view the United States administration is offering foreign nationals inferior access to justice.
Adele Horin writing in the Sydney Morning Herald on August 6, 2005, noted 'The US Government does not subject its own citizens to the military commission. It whipped Yaser Esam Hamdi out of Guantanamo Bay when it was discovered he was an American, and freed him after he agreed to renounce his US citizenship and go to Saudi Arabia. John Walker Lindh was dealt with in the US court system.'
Amnesty International has similarly declared, 'US nationals will not be tried by military commission, even if accused of the same offence as a foreign national, but rather tried by ordinary civilian courts with a broad range of fair trial protections. Under the Order, selected foreign nationals will receive second-class justice, in violation of international law which prohibits discriminatory treatment, including on the basis of nationality.'
2. The military commissions are not independent of the US executive
The military commissions have been condemned as being no more than a branch of the executive, a creature of President Bush's administration.
Amnesty International has complained that 'The President has given himself or the Secretary of Defence the power to name who will be tried by the commissions, to appoint or to remove the members of those commissions, to pick the panel that will review convictions and sentences, and to make the final decision in any case [if a judgement is appealed].'
Adele Horin, writing in The Sydney Morning Herald, has argued, 'The military commission is akin to what you might find in a military dictatorship. The US Congress has passed no laws to establish the commission - it was set up by the President's directive, and thus lacks the usual independence of civilian and military courts. The President, through the Defence Department, is, in effect, prosecutor, judge and jury. There is no appeal to an independent body from its decisions - no matter how erroneous or unsound - and the usual rules of evidence, the foundation stone of court proceedings, have been discarded.'
3. The presumption of innocence has been undermined
It has further been noted that although the procedures to be adopted by the military commissions seem to include the presumption of innocence, the way in which the various accuseds have been publicly vilified by prominent members of the Administration has undermined this presumption of innocence.
Amnensty International has argued, 'We note the Pentagon's rules include the presumption of innocence. However, this guarantee has been undermined by a pattern of public commentary on the presumed guilt of the Guant namo detainees by the very officials that control the commissions.'
President Bush has repeatedly labelled the detainees as 'killers' and 'terrorists'. Discussing the military commissions, President Bush has said, 'Remember, these are - the ones in Guant namo Bay are killers. They don't share the same values we share'. Similarly, Secretary Rumsfeld has referred to the Guant namo detainees as 'among the most dangerous, best-trained, vicious killers on the face of the earth', and as 'hard-core, well-trained terrorists'.
4. There is no right of appeal to an independent court
Amnesty International has complained, 'There is no right of appeal to an impartial and independent court established by law. Instead, there will be a review by a three-member panel appointed by the executive of the US Administration. The Review Panel does not have to consider any applications for actions made by either the defence or prosecution. The Review Panel's recommendations are not binding on the Secretary of Defence and President - who can make the final decision.'
Thus, it is claimed, there is nothing independent about the review process. The Review panel has been appointed by the executive and the ultimate the decision regarding any appeal is made by the President or the Secretary of Defence.
5. The military commissions will operate in camera
There are strong provisions in place that allow for the commissions to operate in virtual secrecy. There is an absolute ban on photographic or electronic coverage. The Presiding Officer may close a proceeding, on his or her own initiative, at the request of the prosecution or defense, or on command from Deputy Secretary. The Deputy Secretary retains the discretion on whether to make public transcripts of the proceedings 'at the appropriate time'. Further members of the commission may meet in closed conference at any time.
It has been argued that the secrecy provisions under which the military commissions will operate are unnecessary and are open to abuse. Improper and unjust hearings can be more easily hidden and will be very difficult to redress.
Serrin Turner, the Associate Counsel of the Brennan Center for Justice at NYU School of Law, and NYU School of Law Professor Stephen Schulhofer have produced a report on the commissions which concludes, 'The government already has a powerful set of tools within both federal courts and courts-martial to prosecute terrorism cases without disclosing classified information. And there is room for improving those tools further within the confines of the Constitution. The new military commissions are poorly designed alternatives that fail to balance legitimate secrecy interests with the need for appropriate constraints.'
6. The military commissions are in violation of international military law
It has been claimed that the United States military order and instructions are inconsistent with provisions of the 1949 Geneva Conventions relating to the prosecution of prisoners of war (POWs).
Under the Third Geneva Convention, a POW can be validly sentenced only if tried by 'the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power,' and 'shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him.'
Because United States service members are tried under courts-martial as established by the Uniform Code of Military Justice and have a right of appeal to an independent civilian court, any POW held by the United States must also be tried by a court-martial and have a similar right of appeal.
Military commissions are not the same as courts-martial - they preclude some of the procedural safeguards of courts-martial, and, as noted under the Military Order of November 13, 2001, persons tried before the commissions have no right of appeal to a civilian court.
7. The commissions have been criticised by those formerly associated with them.
In August 2005 leaked emails, written by former military commission prosecutors John Carr and Robert Preston in March 2004, claimed the military tribunals were 'flawed', 'half-assed' and set up to convict suspected enemy combatants.
Captain Carr claimed, 'I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged ...'
Major Preston has claimed, 'I consider the insistence on pressing 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.'
Law Council of Australia president John North said the criticism from within was a 'damning endorsement of the entire military commission system'. He further claimed, 'When a prosecutor says he can no longer morally, ethically or professionally continue to be part of this process, it has to sound alarm bells for anyone concerned with maintaining the law.'
8. Criticisms of the commission have not been independently investigated
There has been concern that the various allegations made about the military commissions have all been internally investigated by the Pentagon. The head of Australia's Military bar, Queens Counsel, Captain Paul Willee, has said that if the emails from Major Preston and Captain Carr are true, then the process is a charade.
Captain Willee has expressed dissatisfaction with an internal investigatory process into the accusations made in these emails. He has stated, 'There are those who in our community take the view that when the allegation is made about somebody in the lion's den, you don't get the head lion to deal with it.'
This view has been echoed by a former Governor-General and High Court Judge, Sir Ninian Stephen. Sir Ninian Stephen is a former judge on the International Criminal Tribunal and is patron of the military law school at Melbourne University, which teaches many of Australia's defence personnel.
Sir Ninian Stephen has stated, 'All I've read is the comments about the proposed tribunal from Captain Willee of the Navy, and I tend to agree with his views. The whole thing is disturbing...'
9. Other nations have refused to have their citizens tried by US military commissions
Through 2003 and 2004 Britain, France, Spain, Sweden, Russia, Morocco and Saudi Arabia arranged for the repatriation of their citizens from Guantanamo Bay. In total more than 200 former prisoners have been repatriated. In September 2004, 11 Afghan and 35 Pakistan prisoners were released.
The British Government has successfully negotiated the release of a total of nine Britons held at Guantanamo. Five were released in March 2004, while the last four were released in January 2005. None of these were charged in spite of United States Military officials alleging that four of them were trained and involved in military activities in Afghanistan.
In addition Spain, Britain, Germany, Belgium and France have refused United States requests to extradite suspected terrorists in their custody unless the United States agreed not to seek their execution. Courts in Canada and South Africa have announced that they would do the same.
France and Germany have also announced that they will not disclose information to United States law enforcement authorities if that information could be used to convict an alleged terrorist who might then be subject to the death penalty.
Critics of the Australian Government have claimed that if all these other nations can take a stand to protect the rights of their citizens then Australia should do the same.
Sydney Morning Herald commentator, Adele Horin, has argued, 'The British Government faced such a storm of protest when two of its nationals were to be tried before the commission that it negotiated with the US to free them.
But in Australia our weasel-mouthed political leaders, John Howard and Philip Ruddock - both lawyers - and Alexander Downer, continue to support the sham legal process rather than insist Hicks be brought before a proper court, or a proper court-martial, or be sent home.'
10. David Hicks has already been detained for more than three years (most of that time without charge)
It has been claimed that the extended nature of David Hicks incarceration without trial and the treatment he has received while imprisoned have been a profound violation of his rights.
By August 2005 David Hicks had been held at Guantanamo Bay for three years and nine months. For the first two years of this period of incarceration he was not given access to a lawyer. He was not charged until three years and six months after he was transferred to the United States military prison. It has been claimed that David Hicks has been subjected to abusive interrogation and possibly torture.
Mr Hicks' Australian solicitor, David McLeod, found in a recent visit to the US Base that his client was losing his eyesight, had severe back problems, and his mental condition was rapidly deteriorating.
Arguments in favour of David Hicks being tried by an American military commission
1. David Hicks and others accused of terrorism have forfeited their right to be tried under civil law
It has been claimed that the conflict between terrorists and other nations is a war which invalidates civilian law.
American jurists Spencer J. Crona and Neal A. Richardson have argued, 'When this nation [the United States] is faced with terrorist attacks that inflict mass murder or hundreds of millions of dollars of damage in a single instance, we can no longer afford procedures that err so heavily on the side of freeing the guilty. Protection of society and the lives of thousands of potential victims becomes paramount.'
Ted Lapkin, the director of policy analysis at the Australia/Israel and Jewish Affairs Council, has stated, 'Because this is a war, the normal rules of civilian courtroom procedure are irrelevant ... In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush. Thus, it is folly to apply peacetime legal standards to a wartime environment where they are self-evidently alien.'
Commenting on the nature of David Hicks supposed actions, which Ted apkin believes, have lost him the rights guaranteed under civilian law, Mr Lapkin declares, 'David Hicks has sown the jihadist wind, and he will now reap the whirlwind before a US military commission. Hicks aspired to be a professional Islamist holy warrior. In letters to his family, the former Aussie jackaroo boasted of fighting with Lashkar-e-Taiba, the al-Qaeda-affiliated organisation that has conducted a bloody terrorist campaign against India. And he wound up in Guantanamo after being captured as a rank-and-file Taliban fighter during combat operations in an active theatre of war.'
2. The Geneva Convention does not apply in the case of David Hicks and others accused of terrorism
It has been argued that the Geneva Convention does not apply to those who fight for terrorist groups such as Al-Qaeda. The rules of the Geneva Convention are reciprocal. They are designed to protect civilians and prisoners of war. Prisoners of war are to be treated humanly and afforded the same rights as apply to soldiers in the forces who are holding them captive. However, these rights apply only to soldiers fighting in properly constituted forces. It has been argued that they do not apply to terrorists who exploit their apparent civilian status to infiltrate the countries of those they regard as the enemy and inflict injury on non-combatants.
In a letter published in The Age editorial published on August 9, 2005, Neil James, executive director of the Australia Defence Association stated, '[David Hicks] is not covered by the Third Geneva Convention because he does not qualify for prisoner-of-war status for several indisputable reasons. Not least is because terrorist organisations are not and cannot be recognised as legitimate international actors who abide by international law and who can be held properly responsible for their subordinates.'
Ted Lapkin, the director of policy analysis at the Australia/Israel and Jewish Affairs Council, has stated, 'The text of the Geneva Convention itself denies the privileges of legal combatant-hood to Hicks and his fellow Guantanamo detainees. The laws of war provide that captured soldiers should be treated in a civilised manner. But this is entirely conditional. If a non-party to the Geneva Convention systematically violates the regulations of armed conflict, then all bets are off, and off come the gloves. The Marquess of Queensberry rules of war-making are no longer required.
Osama bin Laden never signed, much less ratified the Geneva Convention. And al-Qaeda is a movement that views the deliberate slaughter of innocent women and children as a legitimate tactic of war.'
3. Some of the critics of the military commissions are partisan or no longer actively involved in the practice of law
It has been claimed that at least some of those who have been critical of the United States military commissions include those with personal reasons to object to the commissions. This claim has been made with regard to two former military commission prosecutors who have variously argued that the commissions are 'rigged' and unfair.
The Australian Minister for Foreign Affairs, Mr Alexander Downer, has said in response to these allegations, '... there were personality issues, personnel issues, which had led to these expressions of view coming from these two prosecutors.'
Criticisms have also been made of Tim McCormack, who is Melbourne University's professor of international humanitarian law and former High Court judge Mary Gaudron both of whom have suggested that the United States military tribunals are fundamentally flawed.
Australia's Attorney-General, Philip Ruddock, has responded to McCormack and Gaudron by claiming, 'While there might be retired and armchair critics from Australia, I think the ultimate decisions in relation to the lawfulness of what is happening is to be determined by the United States.'
4. All accusations made against the military commissions and the manner in which evidence has been acquired have been investigated
It has been claimed that the accusations made against the military commissions by former prosecutors for the commissions have been thoroughly investigated. The Pentagon has stated it investigated the claims made in the emails of the former prosecutors and found them to be 'much ado about nothing'.
The Australian Prime Minister, Mr John Howard, has stated, 'Our ambassador spoke ... to the Pentagon ... and the head of the Military Commission operation said that those allegations had been extensively investigated over a two-month period.'
The Australian Minister for Foreign Affairs, Mr Alexander Downer, has also stated, 'There was a very thorough investigation into these allegations and the Americans have told us that those investigations cleared the military commission process.'
Mr Downer claimed the most senior US military figures had investigated and rejected the allegations. Mr Downer stated, 'I think the inspector-general of defence in the US is somebody you can take seriously.'
5. The Australian Government is satisfied with the procedures that are being followed
The Australian Government has maintained that it has been kept fully informed about the military commission process and that it concerns have been addressed. It has further maintained that it is satisfied that the military commissions will operate fairly. In November 2003 the Australian Government issued a media release stating, 'The Government has reached an understanding with the US concerning procedures which would apply to possible military commission trials of the two Australians detained at Guantanamo Bay, David Hicks and Mamdouh Habib.
... As part of the Government's extensive discussions with the US concerning military commission processes, the Minister for Justice and Customs, Senator the Hon Chris Ellison, visited Washington from 21 to 23 July 2003. As a result of the visit, the US made significant commitments on key issues, including that ... the US assured Australia it will not seek the death penalty in Mr Hicks' case.'
The media release concluded, 'The US has assured the Government that Mr Hicks and Mr Habib will receive no less favourable treatment than other non-US detainees. We will remain in close contact with the US to ensure both men are treated fairly and appropriately at all times.'
6. David Hicks would avoid answering charges if he is not tried in the United States
It has been claimed that if David Hicks is not tried before a United States military commission then he will avoid having to answer the charges laid against him.
Australia has no law under which David Hicks could be prosecuted and our Parliaments and legal system has a long-standing objection to retrospectivity. This means we do not support charging people under laws which come into effect after the commission of their supposed crime. Thus, if David Hicks were to be returned to Australia without having been tried before a United States military commission then it would not be possible to try him in this country.
This point has been stressed by Australia's Prime Minister, Mr John Howard, who has stated, 'The consequence of simply saying he should come home would be that he would go free without answering in any way to those allegations.'
On another occasion Mr Howard stated, 'You are dealing with somebody who actually trained with a terrorist organisation.
If he returns to Australia, because that wasn't a criminal offence at the time it happened, he can't be prosecuted. And that is why I believe subject to our being satisfied about the veracity of the process he should be tried before the American military commission.'
7. The United States has used military commissions in the past
Military commissions have been employed in wartime for centuries. They are a long-established and accepted means of dealing with military opponents.
The first American president, George Washington, used military courts during the Revolutionary War, and the practice continued throughout World War II.
It has been claimed that military tribunals can act fairly, as in the case of the Hunter Commission, the tribunal that convicted the conspirators behind the Lincoln assassination. Further, the Supreme Court has ruled in favour of the use of tribunals in a key World War II case concerning German saboteurs caught in the US.
8. The Australian Government has helped to fund David Hicks' defence
The federal Attorney General, Philip Ruddock, has stressed that the Australian Government has financially supported David Hicks' defence. Mr Ruddock has stated, 'The Australian Government has been very supportive of Mr Hicks and his defence in relation to any trial that he may face. I don't think the public are aware . . . that we have been, as I would assert, as generous as we can in ensuring that he has a defence available to him. The fact is we are now talking about expenditure in excess of $100,000 to Australian consultants that have been part of his defence team. So the idea that he's been abandoned flies in the face of reality.'
9. The military commissions need to be able to operate in secret
It has been stressed that some of the material that could be raised in the trial of anyone accused of terrorist or related activities could compromise United States national security, especially the security of undercover operatives. The presiding officer of the military commission will have the discretion to determine what information can legitimately be made available to defence counsel and others.
In January 2005 the American Law Division of the Congressional Research Service published a paper titled, 'The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice.'
The paper stated, 'The overriding consideration with regard to whether the accused or defense counsel (including detailed defense counsel) may gain access to information appears to be the need for secrecy. The presiding officer may delete specific items from any information to be made available to the accused or defense counsel, or may direct that unclassified summaries of protected information be prepared.'
10. Those brought before the commission retain their basic legal rights
Under President Bush's Military Order defendants brought before a military commission will enjoy many of the traditional safeguards of American law, for example, the presumption of innocence, the requirement of proof of guilt beyond a reasonable doubt and assistance of counsel.
The Australian Minister for Foreign Affairs, Mr Alexander Downer, has issued a media release stating, 'The US has indicated that those to be tried before a Military Commission will be afforded a range of legal rights outlined in the Military Commission Orders and Instructions designed to allow for a fair trial.
The Orders and Instructions provide protections and legal rights for accused persons, including a presumption of innocence; a standard of proof beyond a reasonable doubt; the right to defence counsel; the right to obtain witnesses and documents to be used in their defence and to cross examine prosecution witnesses; and the right to silence, including a guarantee that no adverse inference will be drawn from the exercise of such a right.
In the case of a possible trial, Mr Hicks will also be provided with a US military lawyer paid for by the US Government and may choose to engage a civilian US lawyer. In addition,we understand that Mr Hicks may be able to retain an Australian lawyer as a consultant to his defence team.'
Further implications
The treatment that the Australian government has been prepared to accept on behalf of Australian citizen David Hicks indicates one of two things. Either Australia is one of very few nations in the world without reservations regarding the judicial process Hicks will undergo or the Australian Government has simply forfeited its autonomy with regard to how the United States is conducting this aspect of the 'war against terrorism'. It is concerning that we are the only Western nation to allow one of our citizens to be tried under a system that others have condemned as dangerous and faulted.
It is also concerning to observe how relatively little popular support there is within Australia for the defence of Hicks' rights to a more conventional trial. Compared, for example, to the public anxiety over the plight of Australian citizen Schapelle Corby, recently tried in Indonesia for smuggling marijuana, Hicks' situation has attracted virtually no popular attention.
It would appear that while many Australians can identify with the situation of Ms Corby this is clearly not the case for Mr Hicks who is admitted to have trained with the Taliban in Afghanistan.
Despite the apparent presumption of guilt in many of the discussions about Mr Hicks, it remains unlcear whether his actions actually constitute an offence. Certainly, the Australian government is concerned that if Mr Hicks were returned to Australia, it would not be possible to charge him with an offence. The Australian government has argued that charges would not be able to be brought against Mr Hicks because at the time he committed the acts for which he is likely to be tried in the United States, these acts were not illegal in Australia. Australian lawmakers have long had an objection to making laws which operate retrospectively.
It is also concerning that Mr Hicks has been detained without trial for well over three years and that for most of that time he has had no charges against him. This would appear to seriously compromise his opportunity to mount a defence as well as representing an unreasonable restriction of his liberty. The Australian government has maintained that it has regularly requested that Mr Hicks' case be dealt with expeditiously. If this is so it would appear that the United States government has not been unduly concerned to act on the urging of the Australian government.
Newspaper sources used to compile this outline
The Age:
September 22, page 2, news item by Fergus Shiel and Michael Gawenda, `OK for Hicks trial "an abomination"'.
September 21, page 4, news item by Fergus Shiel, `Australian brigadier calls for UN to take over US military trials' (photos of Hicks, Gerard Fogarty).
September 27, page 2, news item (with newer photos of Hicks, incl British grandfather) by Brendan Nicholson, `Hicks should face justice, Downer says'.
November 4, page 15, comment by John Cain, `Hicks abuse claims demand some answers'.
November 22, page 15, comment by Tim McCormack, `Nuremberg's lessons for Guantanamo'.
November 21, page 11, analysis / interview (ref to defence lawyer Major Michael Mori) by M Gawenda, `In the line of duty'.
November 12, Insight section, page 11, comment by Danna Vale, `Let's bring David Hicks home - he has been punished enough'
November 12, Insight section, page 12, analysis / interview by Penelope Debelle, `Father and son'.
December 15, page 18, editorial, `David Hicks may find his fate determined by a golden thread'.
November 25, page 3, news item (cartoon) by Anabelle Crabb, `Hicks: Guantanamo's "token white man"'.
The Australian:
December 6, page 12, comment by Phillip Adams, `From poster boy to terror suspect'.
November 14, page 5, news item by Natalie O'Brien, `Hicks's training mate gave vital leads'.
December 15, page 10, comment by Ted Lapkin, `Military justice is crucial'.
December 15, page 3, news item by Edwards and Elliott, `Hicks may be refused entry as a Briton, says Downer'.
December 13, page 6, news item by Verity Edwards, `Hicks to get UK passport'.
December 10, page 3, news item by Sian Powell, `Funding pulled on Hicks screening'.
The Herald-Sun:
December 15, page 15, news item by Phillip Coorey et al, `Hicks ruling left up to UK'