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2007/05 Should David Hicks be released from Guantanamo Bay and repatriated to Australia? <BR>

2007/05 Should David Hicks be released from Guantanamo Bay and repatriated to Australia?

What they said ...
'Australia is tolerating a terrible situation ...America would not tolerate this for one of its citizens. Nor would it tolerate any politicians sacrificing some American citizen to the whim of a foreign country, regardless of whether they are our ally or not. It just doesn't happen'
Major Michael Mori, David Hicks military defence counsel

'I accept that [David Hicks] has been [in Guantanamo Bay] for a long time, but I think that we've got to remember that this bloke was plainly up to no good and for that reason, I think people are entitled to be concerned about just letting him go'
Tony Abbott, Australia's federal Health Minister

The Issue at a glance
In January 2007 David Hicks, an Australian citizen who has served with the Taliban and al-Qaeda in Afghanistan, will have been held prisoner by the United States government at Guantanamo Bay for five years.
Within Australia, there has been slowly growing opposition to Mr Hicks incarceration. In December 2006 a number of Liberal backbenchers denounced Hicks' indefinite imprisonment; there were 'Bring David Home' rallies in a number of major Australian cities and The Sunday Age began a campaign to have Hicks freed.
The Law Council of Australia has long opposed Mr Hicks' imprisonment as has Amnesty International and a range of civil liberties groups.
The Australian government, however, has generally been highly supportive of the actions taken by the United States government and has maintained that Mr Hicks has been treated as fairly as possible in difficult circumstances.
In September 2006, after further delays in the process that was meant to see Mr Hicks tried, Philip Ruddock, Australia's Attorney General, asked the United States government that Hicks trial occur as expeditiously as possible. Mr Ruddock made a similar call in somewhat more forceful language on January 3, 2007. On January 2, 2007, the recently appointed director of military prosecutions, Brigadier Lyn McDade, had stated her concerns about the treatment David Hicks had received.
It remains to be seen whether such statements of opposition will ultimately lead the Australian government to call for Mr Hicks repatriation to Australia.

Background
(The following is an edited and abbreviated version of material relating to David Hicks taken from the on-line encyclopedia Wikipedia. The full Wikipedia entry can be found at http://en.wikipedia.org/wiki/David_Hicks)

David Matthew Hicks, also known as Mohammed Dawood, is an Australian citizen being held prisoner by the United States Government at Guantanamo Bay, Cuba, after having served with the Taliban and al-Qaeda in Afghanistan.
David Hicks has been detained for more than five years as an 'unlawful combatant' and thus, it was claimed, was outside the normal protections of United States law and those provisions of the Geneva Conventions which are specific to soldiers of an official military organization. His trial before a United States military commission was due to begin in November 2005.
However, proceedings were cancelled following the United States Supreme Court Hamdan v. Rumsfeld ruling invalidating the constitutionality of the commission process.

Hicks's father, Terry Hicks, has sought since 2002 to have his son brought to Australia for trial, but the Australian government has deliberately not requested that the United States release David Hicks to his country of origin. Since 2003 the Australian government has been requesting that Hicks be brought to trial without further delay, and has extended him consular support.

In November 2005, the Australian Broadcasting Corporation program, Four Corners, broadcast for the first time a transcript of an interview with Hicks, conducted by the Australian Federal Police in 2002. In this interview Hicks acknowledged that he had trained with al-Qaeda in Afghanistan, learning guerrilla tactics and urban warfare. He also acknowledged that he had met Osama bin Laden. He claimed to have disapproved of the September 11 attacks but to have been unable to leave Afghanistan. He denied engaging in any actual fighting against United States or allied forces.

Hicks' trial was initially set for January 10, 2005. The U.S. Army appointed Major Michael Mori as his defence counsel.
In February the Hicks' family lawyer, Stephen Kenny, who had been representing Hicks in Australia since 2002, was dismissed from the defence team and Vietnam veteran and Army Reservist, David McLeod replaced him.
The trial was delayed in November 2004 when the US Federal Court ruled that Commissions were neither competent nor lawful.
On June 29, 2006, in the case Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military tribunals were illegal under United States law and the Geneva Conventions.
On July 7, 2006, a memo was issued from The Pentagon directing that all military detainees are entitled to humane treatment and to certain basic legal standards, as required by Common Article 3 of the Geneva Conventions.
On August 15, 2006, Attorney-General, Philip Ruddock announced that he would seek to return Hicks to Australia if the United States did not proceed quickly to lay substantive new charges.
The United States has now established new military commissions to replace those its Supreme Court ruled unlawful. The validity of these new commissions is likely to be challenged. The Australian government has expressed confidence in the new commissions.
In November 2006 all state and territory attorneys-general issued a formal statement demanding the Australian government take urgent action to have David Hicks returned to Australia.
On 6 December 2006, David Hicks' legal team lodged documents with the Federal Court of Australia, arguing that the Australian government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks' incarceration by the U.S. comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

Internet information
The online encyclopedia, Wikipedia's, substantial entry for David Hicks can be found at http://en.wikipedia.org/wiki/David_Hicks

In December 2006 the Australian Attorney General, Philip Ruddock, issued a series of answers to some of the most commonly asked questions about David Hicks' incarceration. These answers are essentially a justification of the Australian government's actions in relation to David Hicks. These questions and answers can be found at http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/RWP9492DB1ACD6A082BCA2571F500248992#4

On October 31, 2005, the ABC's current affairs program, Four Corners, produced a program titled 'The case of David Hicks'. It traces Hicks' history, his involvement with al-Qaeda, the attitude of the Australian government toward his conduct and subsequent imprisonment, the nature of the first military commissions and the apparent nature of the evidence that was to have been brought against David Hicks.
There are substantial excerpts from views expressed by Prime Minster Howard and other government spokespeople as well as an interview with Major Michael Mori, David Hicks' military defence counsel. The full transcript of the program can be found at http://www.abc.net.au/4corners/content/2005/s1494795.htm

On December 7, 2006, the Law Council of Australia issued a media statement titled, 'Detained Without Charge - Five Years On, Hicks Must Come Home'
The media release is a criticism of the Australian government's claimed failure to act on behalf of David Hicks during his five years of detention.
It concludes with a very useful PDF file titled 'The Australian Government's Position on David Hicks'. This PDF document details many of the major arguments the federal government has put in justification of its treatment of David Hicks. These justifications are made drawn from comments made by key government figures including the Prime Minister, Mr John Howard, and the Attorney General, Mr Philip Ruddock.
After the government's position has been put Tim Bugg, the president of the Law Council of Australia, then puts counter arguments.
The media release with the accompanying PDF file can be found at http://www.lawcouncil.asn.au/read/2006/2431031696.html

On October 25 2006 Irene Khan, the secretary general of Amnesty International (a non-governmental organisation made-up of 'a worldwide movement of people who campaign for internationally recognized human rights') issued an open letter to Australia's prime minister, John Howard, calling for him to have David Hicks returned to Australia and oppose the conditions of imprisonment at Guantanamo Bay.
The full text of this letter can be found at http://web.amnesty.org/library/Index/ENGASA120062006?open&of=ENG-2M4

On August 17, 2005, and opinion piece by Dr Tony Smith, a writer and political scientist, was published in On-line Opinion. The piece is titled 'The Hicks case is becoming a constitutional crisis'. It outlines the threats to civil liberties and fundamental legal rights which Dr Smith believes David Hicks' treatment represents.
The opinion piece can be found at http://www.onlineopinion.com.au/view.asp?article=3768

On June 9, 2006, an opinion piece by Neil James, the executive director of the Australia Defence Association, was published in On-Line Opinion. The piece argues that David Hicks' situation is more problematic than his supporters suggest and that much depends on whether he can legitimately be regarded as a prisoner of war and entitled to the protections that such a status would grant him.
The opinion piece can be found at http://www.onlineopinion.com.au/view.asp?article=4561

Arguments in favour of David Hicks' release
1. David Hicks has been imprisoned for over five years without charge or trial
A range of legal authorities have expressed their consternation at David Hicks' having been detained for five years without either charge or trial. This is seen as a gross denial of natural justice and a violation of fundamental legal principles.
Without a charge or the realistic prospect of a trial, no detained person is able to defend themselves and either be released or face a fixed, legally determined period of imprisonment. Under the current circumstances David Hicks' detention is potentially indefinite and he has no capacity to alter the situation.
On December 7, 2006, Tim Bug, the president of the Law Council of Australia stated, 'For at least the last couple of years we have heard that the Australian Government has been given assurances that David Hicks will receive a fair and expeditious trial. However, five years on David Hicks is not even charged with anything. The US authorities have labelled him an "unlawful enemy combatant" but that is no different to calling him a "bogeyman". It is an entirely fictitious legal status and not one that can justify unending detention. The military commissions which were the proposed vehicle for his prosecution were declared illegal and the Supreme Court doubted that the charges against him even exist at law.
Now the Australian Government has again received assurances about the new military commission system, even hailing it as an improvement ...It was always a mistake to complacently accept assurances from the US authorities when those authorities placed David Hicks in Guantanamo precisely so that he would be beyond the protection of the law.'
Geoffrey Robertson, QC, has indicated that the extreme delay that David Hicks has had to endure before facing trial has already invalidated the whole process. Robertson has stated, 'At common law, based on Magna Carta, a criminal process cannot be fair if it is delayed through no fault of the defendant for more than five years (the point at which, the [British] Privy Council has held, any death sentence must be commuted). Inevitably, the new tribunal will be subject to [United States] Supreme Court challenge, which will take until 2008 to resolve. Hicks and other detainees cannot be faulted for challenging the fairness of the process.'
Barrister Lex Lasry, QC, has similarly stated, 'Throughout this period, the detainees, including David Hicks, remain incarcerated. That this can be allowed to occur is genuinely outrageous. This situation could never be replicated in an Australian criminal court.
A delay of this nature would have resulted in a grant of bail to an accused on the grounds of "exceptional circumstances" years ago.'

2. David Hicks has committed no crime under Australian law
It has been acknowledged by the Australian Government that David Hicks has committed no crime under Australian law. It has further been suggested that David Hicks may also have committed no prosecutable offence even under United States law.
Major Michael Mori, David Hicks' military lawyer, has stated, 'The Australian Government from the beginning has said David Hicks has not violated Australian law, so how serious could his conduct have been? David Hicks is not charged with injuring anyone. The [United States] Supreme Court really criticised the conspiracy charge being used at the commissions. There are no serious offences David committed, and I just heard that comment that he claims that David has committed some of the serious offences of those at Guantanamo. That is a complete fabrication and lie. David hasn't injured anyone ...'
Dr Tony Smith, a writer and political scientist, has claimed that the Australian Government's belief in Hicks' guilt (despite his having committed no crimes under Australian law) is based on nothing more than their fear regarding the seriousness of the allegations the American authorities have made against him.
Dr Smith has written, 'The (Australian) Government believes that David Hicks is guilty, largely it seems, because the allegations against Hicks are so serious. Should the seriousness of allegations made by executive government become grounds for establishing guilt, then "justice" would be meaningless.
If the US and Australian authorities think they have a case against Hicks, then they should be willing to test their evidence in open court ... Allegations will never, ever make Hicks guilty. Only due process of law can do that, and due process is precisely what the Government has tried to avoid ever since Hicks' capture.'

3. No other Western nation has allowed its citizens to be detained at Guantanamo Bay
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.
David Hicks' military lawyer, Major Michael Mori, has claimed that 'Australia is tolerating a terrible situation.' Major Mori has noted that John Walker Lindh (the so-called American Taliban who trained at the same camp as Hicks) has been charged, pleaded guilty and been sentenced. David Hicks, however, remains uncharged and still imprisoned. Major Mori has claimed, 'America would not tolerate this for one of its citizens. Nor would it tolerate any politicians sacrificing some American citizen to the whim of a foreign country, regardless of whether they are our ally or not. It just doesn't happen.'
Major Mori has also noted that in contrast to Australia's compliance with the military commissions, Britain demanded the United States release its citizens from Guantanamo more than two years ago.

4. David Hicks' detention and the inaction of the Australian Government are in violation of a number international laws and conventions
It has been claimed that the Australian Government in taking no action to have David Hicks released after five years of potentially illegal imprisonment at Guantanamo Bay may have breached a number of international laws and conventions. It has been suggested that this is particularly the case since the United States Supreme Court ruled that those detained at Guantanamo Bay should fall under the protection of the Geneva Convention.
Geoffrey Robertson, QC, has stated, 'It is ...a war crime to commit a "grave breach" of the Geneva Convention. Article 8(2)(a)(vi) of the Rome Statute for the International Criminal Court, to which Australia ...is a party, defines such breaches to include "wilfully depriving a prisoner of war or other protected person of the right of fair and regular trial".
The Supreme Court has now declared Hicks to be a person protected by the Geneva Convention, and there must come a point at which Australian law officers who wilfully authorise or approve an unfair and irregular trial of an Australian citizen become complicit in a grave breach of international law.'

5. The Australian Government has allowed David Hicks' continued detention for primarily political reasons
It has been claimed that Australia has neglected the rights of David Hicks because it has chosen to pursue its alliance with the United States to the detriment of an Australian citizen.
According to this line of argument, the Australian Government has continued to accept the manner in which the United States Government has conducted the Hicks case because it wants to maintain its close political and strategic association with the United States.
David Hicks' military lawyer, Major Michael Mori, has claimed, 'This is a political process at Gitmo where some people were rounded up and are being held out as political pawns to support a position. This isn't a justice system. This isn't equality where everyone is being held accountable if there's truly a violation of the law. That's not what's going on here. David Hicks has been left there. Why are all the British citizens free? Why? Because their government recognises the system is not fair and no crime has been committed ...
The hypocrisy is so rampant in this process because it's a political system. Unfortunately the Australian Government wants to stick to playing politics instead of looking out for the basic fundamental rights of its citizens, something that as an American it's hard to imagine how a government would do it because I know an American government would never tolerate it.'
Associate professor at Monash University's Global Terrorism Research Unit, David Wright-Neville, has argued, 'David Hicks has been offered up as a sacrifice to the Bush administration. They had to let go of the Poms and the Swedes, so they want some token white guy so they can say we are prosecuting Europeans, not just Pakistanis and Saudis.'

6. David Hicks' has effectively been punished for any crime of which he may ultimately be found guilty
Even among those who believe that David Hicks' may have committed a crime for which he should be punished, there are many who consider that the punishment he has already received is more than sufficient.
The Victorian newspaper, The Age, has, along with a number of other civil liberty groups and associations of lawyers, begun a campaign to have David Hicks returned to Australia immediately.
As part of its campaign The Age has stated, 'To be jailed for five years in Victoria you will need to kill someone while drunk driving, or be convicted of rape or manslaughter.
Once in prison, to be placed in solitary confinement you will need to be among the most violent, or the highly vulnerable.
David Hicks has not been convicted, but he has been jailed - for five years, much of it in solitary confinement, out of reach of his family and supporters.
He is an Australian citizen who has trained with terrorists, but he has broken no Australian law. By any measure, he has done his time.'

7. David Hicks' physical and psychological health appears to be at risk through his continued detention
David Hicks' father, Terry Hicks, has claimed that his son's deteriorating mental and physical health after five years at Guantanamo Bay should be part of a Federal Court case to secure his release.
Mr Hicks said an independent report on his son's condition should be ordered by the Federal Court.
'It's like a duty of care in the workplace,' Mr Hicks said. 'This duty of care by the Commonwealth towards its citizens should work the same way. They have got to be accountable for David's situation and how he is.'
In October 2006 when visited by his US defence counsel, Michael Mori, Hicks was reportedly overweight, depressed and had failing eyesight.

8. David Hicks would pose no significant security risk were he returned to Australia
It has suggested that if the Australian Government is concerned about the risk which David Hicks might pose if he were returned to Australia than it could arrange for him to be placed under a control order.
The Australian lawyer for David Hicks, David McLeod, has argued that the Federal Government should arrange for his client to be brought home and monitored under a control order.
Mr McLeod has stressed that the Government needs to recognise that Mr Hicks has effectively served a five-year sentence in a maximum security prison without being charged or tried. He is calling for a compromise solution to get his client back to Australia.
'We're saying, "well look, why don't you come to us with the prospect of a control order that would see him under supervision by the federal police upon his return to Australia"?
I'm sure the federal police would find that extremely boring because it would soon become clear that David is a danger to nobody but it would see him home,' Mr McLeod said.

Arguments opposing David Hicks' release
1. The United States Government has assured the Australian Government that it has significant evidence against David Hicks
The Australian Government states that it has received repeated assurances from the United States there is substantial evidence against David Hicks.
On May 4, 2005, Australia's Minister for Foreign Affairs, Alexander Downer, stated, 'The [United States] Administration have told us they're satisfied that there is a significant body of evidence that they can bring to bear in the case and they're confident that evidence will stand up in court.'
On August 1, 2005, Australia's Attorney General, Mr Philip Ruddock, similarly noted, 'My situation is quite clear. The Americans have assured me that they have a substantial case against Mr Hicks; that it needs to be dealt with before a tribunal that can protect security-related information; that in the context of war, war crimes tribunals have always been the mechanism for securing that protection, as well as bringing people to trial.'

2. David Hicks poses a significant security risk
The Australian Government has repeatedly claimed that it views David Hicks as a major security risk and thus would not be happy merely to have him returned to Australia. On August 5, 2005, Australia's Minister for Foreign Affairs, Alexander Downer, stated, 'The advice we've had, including from our intelligence agencies, is that Mr Hicks is a dangerous person. He's been involved in training with Al Qaeda. He was picked up on the battlefield in Afghanistan and he's facing, within the context of the American military commission, very serious charges, including a charge of attempted murder and conspiracy to cause war - to commit war crimes.
Now, I mention all of those things because that is an endeavour by me to put this all into some context. We are very concerned about him. If he were to be returned to Australia the advice we have is that he would be released because we wouldn't be able to take any action against him under our anti-terrorism legislation because that didn't come into force until after his activities in Afghanistan.'
On November 10, 2006, a similar point was made by Australia's Health Minister, Tony Abbott, who stated, 'I accept that [David Hicks] has been [in Guantanamo Bay] for a long time, but I think that we've got to remember that this bloke was plainly up to no good and for that reason, I think people are entitled to be concerned about just letting him go.'

3. David Hicks would not be able to be charged were he released and returned to Australia
One of the grounds the Australian Government has repeatedly given for not seeking to have David Hicks returned to Australia before he has been tried before a United States military commission is that if Mr Hicks were repatriated in this way no Australian authority would be able to bring charges against him.
The Government is concerned that because Mr Hicks' actions as an 'unlawful enemy combatant' were not contrary to any Australian law at the time he supposedly performed them he cannot be charged under Australian law. The Government has rejected the suggestion that it might bring in new laws to operate retrospectively.
On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it states, 'The Government has been advised that based on available evidence, no prosecution is available against Mr Hicks in Australia at this time. Making that decision is more complicated than simply identifying a criminal offence which may possibly have been contravened by a person's actions. The decision-maker must also take into account the likelihood of success, referring to factors such as available defences, the facts in question and the rules of evidence as they apply in Australian criminal law.
The Australian Federal Police considered offences existing in 2001, including offences set out in the Geneva Conventions Act 1957 and the Crimes (Foreign Incursions and Recruitment) Act 1978. As a result of their examinations, the Australian Federal Police asked the Commonwealth Director of Public Prosecutions to consider all available evidence regarding Mr Hicks' alleged involvement with the Kosovo Liberation Army, Lashka-e Taiba and al-Qa'ida/Taliban forces. After considering the available evidence, the facts in question, the rules of evidence and available defences, the Commonwealth Director of Public Prosecutions advised that prosecution was not available.'

4. David Hicks has not been mistreated in custody and is not being detained under cruel or inhumane conditions
The Australian Government has repeatedly stated that David Hicks has not been abused while in custody. On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it states, 'The last consular visit was made to Mr Hicks on 27 September 2006. No evidence of abuse or maltreatment has been found. At the Australian Government's request, there have been two investigations into allegations of mistreatment raised by Mr Hicks. Neither investigation revealed any evidence of abuse.'
The same Internet site also states, 'At the Australian Government's request, the United States agreed to undertake a comprehensive review of the treatment of Mr Hicks at all times while in United States custody. As part of the now concluded investigation ordered by former United States Deputy Secretary of Defence Wolfowitz in August 2004, an examination of medical records and other documents concerning the detention of Mr Hicks revealed no information to support the abuse allegations.
The Government was also advised in July 2005 that a second investigation conducted by the United States Naval Criminal Investigative Service (NCIS) found no information which would substantiate allegations of abuse made by Mr Hicks while in United States custody.'

5. David Hicks will receive a fair trial before a reformed military commission
The Australian Government has indicated that it has faith in the new military commissions set up to try supposed unlawful enemy combatants such as David Hicks. On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it states, 'The Military Commissions Act of 2006 was introduced to provide congressional authorisation for the military commission process, to clarify standards of treatment and questioning of captured 'unlawful enemy combatants', and to set out the procedural guarantees that will apply to the military commission trial.
The Act incorporates a number of due process safeguards, including: the presumption of innocence, a right to be present throughout the trial, a right to cross-examine prosecution witnesses, a ban on evidence obtained by torture, access to evidence the prosecution intends to adduce at trial, the provision of military defence counsel and the ability to retain civilian defence counsel, the option to remain silent or testify at trial, standard of proof beyond reasonable doubt, double jeopardy protections and an extensive appeals process.
The Act states that evidence obtained by torture is inadmissible, interrogation methods must not amount to cruel, inhuman or degrading treatment, and detainees are granted the right to judicial and administrative review of their case.'
In summarising the Australian Government's position on the new commissions it states, 'The Government considers the new military commission procedures are capable of providing a full and fair trial for Mr Hicks'.

6. The Australian Government has requested that David Hicks' trial proceed expeditiously
The Australian Government has repeatedly indicated that it has made plain to the United States that Australia expects David Hicks to be promptly brought to trial. On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it states, 'There is no set date for Mr Hicks' trial at this stage. Mr Hicks has not yet been formally charged under the new Act. Certain procedures have to be followed in order to reconstitute the military commission, including the proclamation of regulations relating to some of the military commission procedures. However, in discussions with US Attorney-General Gonzales in September [2006], the Attorney-General emphasised Australia's expectation that this should happen quickly, so that trials may begin. US President Bush also indicated in a joint press conference with the Prime Minister in November that he hopes that Mr Hicks will be among the first to be tried.'
In a media release issued on September 25, 2006, Australia's Attorney General, Philip Ruddock, stated, 'I will stress the urgent need for continuing progress and passage of legislation through Congress to re-establish the military commission process ...The United States is aware the Australian Government wants this matter settled as expeditiously as possible.'
The Australian Government has also noted that one of the reasons in the delay in trying Mr Hicks has been the protests either lodged or supported by his legal team. On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it states, 'Mr Hicks was one of the first detainees to be charged in June 2004. Delays in bringing Mr Hicks' case to trial were brought about in part by a US federal court application made by Mr Hicks, which made orders adjourning his military commission trial in November 2004.' The Government thus implies that Mr Hicks is in part responsible for the delays that have seen him delayed for so long without trial.

7. David Hicks' physical and mental health does not appear to be at risk
The Australian Government is satisfied that neither Mr Hicks' physical nor mental health is at risk. On a section of the Attorney General Department's Internet site given over to answering commonly asked questions about Mr Hicks it is stated, 'The last consular visit was made to Mr Hicks on 27 September 2006. No evidence of abuse or maltreatment has been found. At the Australian Government's request, there have been two investigations into allegations of mistreatment raised by Mr Hicks. Neither investigation revealed any evidence of abuse.'
In relation to claims that Mr Hicks is overweight because of lack of exercise and poor diet and that he is suffering eyesight problems the Australian Government has claimed again, 'The last consular visit was made to Mr Hicks on 27 September 2006. These issues were not raised with Consular Officials. Mr Hicks has previously raised issues relating to his eyesight and has had reading glasses prescribed and provided to him.'

8. David Hicks is under the legitimate jurisdiction of the United States
The Australian Government has also maintained that it is limited in what it is able to do in relation to the David Hicks' case. In this, it has maintained, Mr Hicks is no different from any other Australian national who committed an offence under the jurisdiction of another country and who is being tried according to the laws of that country.'
On December 14, 2005, Australia's Minister for Foreign Affairs, Alexander Downer, stated, 'Now look, our position, as I've explained to his lawyers on many occasions, is the same as the position we have with all Australians who get charged before foreign courts, that there aren't special courts for Australians. You have to deal with the jurisdiction within which you're charged. We provide consular assistance and the court will take its course.'

Further implications
The final decision in relation to David Hicks is as likely to be made on political grounds as it is on legal ones.
The citizens of the United States appear to have lost confidence in their administration's conduct of the Iraq war. Though the detention of supposed unlawful combatants at Guantanamo Bay is not a major element of such voter dissatisfaction it seems unlikely that there would be a great deal of voter enthusiasm for the rigorous prosecution of those still held at what is now being referred to as Gitmo. Given probable legal challenges within the United States to the new military commissions, these commissions (or whatever amended form of tribunal replaces them) are unlikely to begin hearing David Hicks' case until well after the end of President Bush's presidency. For Bush and his immediate supporters not shifting ground may appear as strength. For those who follow them, whether Republican or Democrat, it is unlikely to do so. The voter backlash against President Bush is predicted to be formidable.
A not dissimilar situation pertains in Australia. Though there is not the apparent strength of feeling against the Iraq war, it is opposed by a significant majority of Australians. David Hicks' situation has not fired the popular imagination, but as his period of time in prison uncharged and untried continues to grow the treatment he has received becomes increasingly less defensible. The Australian government is facing an election some time in 2007. The Opposition is likely to attack them for their unthinking support of United States foreign policy. The plight of David Hicks is likely to be an element in such an attack.
It is probable that Philip Ruddock's recent apparent growth in concern regarding the treatment David Hicks has received is motivated as much by political considerations as it is by legal or ethic ones.
The legal and ethical questions will however remain to be addressed. One of the legacies of the western world's war against terror has been the challenge it has posed to many legal principles previously considered inviolable. At some point in the future, many countries, including Australia, are likely to consider again laws and detention arrangements they have put in place as a means of dealing with the threat of terrorist attack.

Newspaper items used in the compilation of this issue outline
The Age: January 11 2007, page 1, analysis by Jane Holroyd, `The case against Hicks'.
The Age: January 10 2007, page 13, comment by Lex Lasry, `Negligent or just ineffective'.
The Age: January 4 2007, page 10, cartoon.
The Age: January 14 2007, page 14, editorial, `Five years in Guantanamo, and the allegations are still vague'.
The Age: January 14 2007, page 8, background analysis by Penelope Debelle, `Pressure too great for Hicks to remain'.
The Age: January 14 2007, page 8, comment by Hicks' lawyer Major Michael Mori, `He's being done over to protect politicians'.
The Age: September 30 2006, page 4, news item (ref to comments by USA / American ambassador Robert McCallum) by Brendan Nicholson, `"Hicks qualifies as an enemy combatant"'.
The Age: October 6 2006, page 6, news item (ref to sleep deprivation "torture" debate) by Michelle Grattan, `PM rises to sleep debate'.
The Age: October 7 2006, Insight section, page 5, comment by Jim Schembri, `Closing our eyes to torture'.
The Age: November 11 2006, Insight section, page 8, editorial, `Time to call an end to Hicks' detention'.
The Age: December 21 2006, page 15, comment by Peter Vickery, `Flouting the laws of war'.
The Age: December 19 2006, page 1, news item by Penelope Debelle, `US bans Hicks psychiatrist'.
The Age: December 12 2006, page 12, cartoon.

The Australian: December 9 2006, page 26, analysis by Verity Edwards, `On his lonesome at Guantanamo Bay'.
The Australian: December 11 2006, page 8, comment by Leigh Sales, `Why our Gitmo inmate matters'.
The Australian: September 25 2006, page 8, comment by James Taranto, `Hicks trial a privilege not a right'.
The Australian: December 26 2006, page 10, comment by Phillip Adams, `Crash of civilised values in Cuba'.
The Australian: November 11 2006, page 10, news item by Patricia Karvelas, `Attorneys-General demand Hicks's return'.
The Australian: January 6 2007, page 16, editorial, `Hicks's day in court is much overdue'.
The Australian: January 15, page 6, comment by Robert Pollock, `Don't fret, Gitmo isn't a hellhole'.

The Herald Sun: October 6 2006, page 20, comment by Ian McPhedran, `Pollies need wake-up on torture'.
The Herald Sun: November 4 2006, page 19, news item (ref to Senator Barnaby Joyce), `Bring Hicks home - Joyce'.
The Herald Sun: January 18 2007, page 27, news item by Stephanie Balogh, `Hicks is OK - Downer'.

Using google to find newspaper items still available on the Web
Use your mouse to copy a newspaper headline (just the headline, not the entire entry as it appears in the sources) and paste it into the google search box below. Click search to see if the item is still accessible.

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