WHY THE ATTORNEY-GENERAL IS WRONG ON HICKS
January 11, 2007
THE article by Attorney-General Philip Ruddock, "Why he can't return" ( Sunday Age, January 7) is both disingenuous and grossly inaccurate in a number of respects.
First, there are gross inaccuracies as to the new military commission process set up by the US Congress following the US Supreme Court finding that the first military commission was invalid.
Ruddock considers that it will provide a fair trial. This is perhaps not surprising since Ruddock was equally convinced of the fairness of the first military commission process before the US Supreme Court finding that it was unfair and illegal. He was wrong then and he is wrong now.
In his article, Ruddock sets out a list of what he describes as fundamental safeguards contained in the new process.
Four of the first five "safeguards" are stated to be:
* A right to be present throughout the trial.
* A right to cross-examine prosecution witnesses.
* A ban on evidence obtained by torture.
* Access to all evidence the prosecution intends to adduce at trial.
None of these "safeguards" operate in the way that would be required in an Australian (or indeed American) criminal court.
As to the right to be present, s949d (f) of the act setting up the commission provides for an accused to be excluded from certain evidence presented at a trial on security grounds and for the protection of sources, methods or activities by which the evidence was obtained.
There is a discretionary provision for providing a "summary" of such matters. Accordingly, the accused's right to be present or to test the evidence is illusory. He may be convicted on the basis of evidence of which he is unaware and to which he is unable to respond.
This would be unacceptable in any criminal court in Australia or the US.
As to the right to cross-examine, the act permits the introduction of hearsay evidence, which if withheld on security grounds may not be available to the accused.
If it is made available, such evidence is only inadmissible if the accused demonstrates that it is unreliable or lacking in probative value — a virtual impossibility if the maker of the statement relied on is not present for cross-examination.
Again, no Australian or American criminal court would permit the calling of such evidence or give it credence.
It is also clear that the accused may not have access to all evidence that the prosecution intends to adduce at trial, as Ruddock asserts. This is a flaw that the US Supreme Court found to be fundamental in its Hamdan decision. The flaw remains.
As to the ban on evidence obtained by torture, evidence obtained by coercion falling short of torture may be admissible if the military judge considers that it may have probative value.
Coercion in this context may well include "water-boarding" (simulated drowning), sensory and environmental manipulation (wall-standing and hooding, temperature extremes, deprivation of clothing etc).
These procedures are, or have been, permitted by US interrogators and not classed as torture. Indeed, Ruddock seems untroubled by them.
The common law has for centuries regarded statements obtained by coercion as inherently unreliable and demands that statements must be voluntary before they become admissible. The abrogation of this principle in this case is unacceptable.
Ruddock also asserts that the accused has the benefit of an appeal process right up to the US Supreme Court.
This is misleading because the appeal provided is very restricted and bears no similarity to an ordinary criminal appeal. It is confined to whether the tribunal has complied with the legislation.
He has also ignored international (and Australian) legal requirements for a fair and regular trial, which include essential guarantees of independence and impartiality, a fair hearing and a requirement that a detained person must be brought to trial as rapidly as possible.
The military commission trial that is proposed lamentably fails the fair trial test, not only for the reasons above but also because it cannot, by its very nature as a military tribunal convened and selected by the executive, pass such a test.
Geoffrey Robertson has rightly compared it to that of a trial of a person tried for an offence against a policeman, being tried by a jury of policemen headed by a senior police officer, all of whom are all selected by the commissioner of police and being the subject of a review by the commissioner. The European Court of Human Rights took the view that the presence of a military judge in a trial of a person accused of actions against the military could not be regarded as a fair trial in the 2003 case of Ocalan v Turkey. The same applies here. How can the system put in place by the US even approach the requirement of a fair trial?
Further, the delay in excess of five years in bringing Hicks to trial breaches all international legal norms. There was a 2½-year delay before Hicks was initially charged. This was of itself unacceptable.
With the Supreme Court having found that the system under which he was charged was illegal in July 2006, new legislation setting up a military commission was passed by Congress and signed by President George Bush on October 17, 2006, and he still has not been charged with any offence.
Any attempt to try him now is clearly in breach of the standards provided by division 268 of the Australian Criminal Code, which adopts international criminal court requirements. Arguably, urging that such a trial takes place, as Ruddock continues to do, is itself a breach of the same code.
Apart from misrepresenting the law, Ruddock's article also contains a number of serious factual errors.
First, he asserts that Hicks' position is different to that of certain British citizens released from Guantanamo Bay at the request of the British Government because none of them had either been charged under the military commission process or been designated as eligible for trial at the time of their release.
The fact is that two of the nine British citizens who were released, namely Feroz Abbasi and Moazzam Begg, had been designated as eligible for trial along with David Hicks and three other foreign nationals, according to a US Defence news release of July 3, 2003.
This led to immediate representations from the British Government to the US and the suspension of proceedings against the two British detainees in July 2004, leading to their eventual release on January 25, 2005.
Had the Australian Government acted similarly, there is no reason to suppose that the position of David Hicks would have been any different.
Next Ruddock asserts that the US had made it clear that a detainee would not be repatriated unless he would be prosecuted and that this was not possible under Australian law at that time.
This cannot be correct because not one of the nine British citizens released from Guantanamo Bay were charged with any offence in Britain. Included were Abbasi and Begg, who like Hicks had been declared by US authorities to be eligible for military commission trial.
They were flown back to London on January 25, 2005, arrested by police on arrival and questioned before being released the following morning without charge. It is hard to see how the position of Hicks on release would have been any different.
Finally, Ruddock fails to address the denial by US authorities of a request by Hicks' legal team for an independent assessment of his mental condition by a senior Melbourne psychiatrist, Professor Paul Mullen, who had previously visited him in 2005.
Such a denial removes a fundamental right from Hicks, namely the right to present evidence that he is unfit to plead by reason of his treatment while in detention, which is also relevant to the issue of undue delay.
It is indeed unfortunate that the Australian Government has failed to undertake its basic duty to protect an Australian citizen and doubly unfortunate that it should resort to "spin" in order to defend itself, as the article by Ruddock demonstrates.
An important issue of principle is involved that transcends issues as to the culpability or otherwise of Hicks, and that is the adherence of the Government of Australia to the rule of law and its obligations to its own citizens.
On the evidence, it appears that the Government has failed to comply with its obligations.
Alastair Nicholson is a former chief justice of the Family Court and is an honorary professorial fellow at the Department of Criminology, University of Melbourne.
January 7, 2007
GUANTANAMO Bay detainee David Hicks will not have his guilt or innocence examined by a tribunal for at least another six months under the first proposed timetable laid out by the United States Office of Military Commissions.
Tribunal chief prosecutor Colonel Moe Davis said pending court challenges could again derail trials and the timetable was changeable.
"I don't see us getting to trial on the merits until some time this (northern hemisphere) summer," he said.
The Office of Military Commissions confirmed during the week that Hicks, 31, held at Guantanamo Bay without trial for five years, was likely to be among the first group charged.
However Hicks' US defence lawyer, Major Michael Mori, attacked the integrity of the proposed new military commissions after the Federal Government was assured Hicks would be charged.
Major Mori said he was troubled that the Government was being told Hicks would be charged, when the person who should decide that was yet to be appointed.
Federal Attorney-General Philip Ruddock said his US counterpart, Alberto Gonzales, had told him there was enough evidence to charge Hicks and he would be among the first Guantanamo detainees to be charged.
Major Mori said the assurances showed "the political fix was in" and that Hicks' case would not be independently evaluated and reviewed.
Mr Ruddock replied it was "not inappropriate to check on the progress of the matter and to receive advice as to the likely timetable for resolving issues relating to Mr Hicks".
He said a trial timetable could be influenced by factors including detainees exercising their rights to challenge the process.
Hicks, a former Muslim convert who renounced Islam in detention, was charged two years ago by the now-invalidated military commissions with aiding the enemy, conspiracy and attempted murder.
He allegedly trained with al-Qaeda and joined the Taliban, but was not accused of firing on Western troops.
"If the Australian Government is getting assurances from high-level US officials, it … shows that the system is rigged," Major Mori said.
"They are not supposed to be influencing the people who will be making those decisions."
Under the Military Commissions Act passed by the US Congress in October, the decision on the nature of any charges against Hicks and whether sufficient evidence existed to lay charges would be made by the convening authority, whom Major Mori said was yet to be selected by the recently installed US Defence Secretary, Robert Gates.
MCDADE CONDEMNS HICKS' TREATMENT
January 2, 2007
The newly appointed director of military prosecutions to the new Australian Military Court has condemned the treatment of David Hicks.© 2007 AAP
Brigadier Lyn McDade, who was made director of military prosecutions in July, described the treatment of Hicks - who has been held by the US at Guantanamo Bay in Cuba for more than five years - as "abominable", The Sydney Morning Herald reports.
Her comments echo those of former prime minister Malcolm Fraser, who said he never thought he would see the time Australia departed from providing justice to all citizens like it has with Hicks.
Hicks was taken to Guantanamo Bay in January 2002, a month after his capture among Taliban forces in Afghanistan.
In her first interview, Brigadier McDade told the Herald she thought Hicks's detention without charge for five years was unacceptable.
"Quite frankly I think it's wrong," Brigadier McDade said. "I don't care what he's done or alleged to have done. I think he's entitled to a trial and a fair one and he's entitled to be charged and dealt with as quickly as is possible.
"As is anybody."
Prime Minister John Howard has reportedly softened his stance on Hicks and over the weekend remarked: "The acceptability of Hicks being kept in custody diminishes by the day."
The establishment of Brigadier McDade's job was one of the key reforms made by the federal government to the military justice system following the damning 2005 Senate inquiry.
For the first time, the responsibility for determining whether to prosecute military personnel will be concentrated in one office, and be completely separate to the chain of command.
NO GUILTY PLEA FOR HICKS: LAWYER
19 Oct 2006
THE lawyer for terrorist suspect David Hicks has angrily rejected claims by Attorney-General Philip Ruddock that his client will plead guilty as part of a plea bargain.
Mr Ruddock said the new military commissions ratified in the US yesterday will allow for a plea bargain which would see Hicks return home, it was reported today.
But Major Michael Mori - the US military lawyer assigned to Hicks's case - says nothing could be further from the truth.
"The first I heard about it was when some reporter called me and asked me if I'd seen the story in The Age," Major Mori told ABC radio.
Hicks had previously pleaded not guilty to charges of conspiracy, attempted murder and aiding the enemy.
But the charges were dropped following a US Supreme Court ruling in June which made the military tribunals set up to try Hicks and other Guantanamo Bay inmates illegal.
Major Mori said Mr Ruddock made the same claim two years ago.
"It sounds to me again like this minister is trying to mislead the public into thinking David violated some crime when he knows David didn't violate Australian law or international law."
It was impossible, Major Mori said, for Hicks to be considering a plea bargain when he did not even know what charges he would face under the new commissions.
"We're going to fight his case and we will fight it tomorrow and we will fight in the next month ... I hope David doesn't break down and I don't see any reason why he would at this point."
Hicks is in solitary confinement at the US high security prison at Guantanamo Bay in Cuba, where he has been for about five years.
"I'm not sure why they're leaving David there when they could easily bring David home tomorrow," Major Mori said.
"He has done five years' hard time in Guantanamo and that seems to be a lot ... for someone who never violated Australian law and if they're worried about him they can put a control order on him."
Victorian man Jack Thomas was the first Australian to have a control order placed on him. He is now challenging that order.
It requires Mr Thomas to observe a midnight-5am curfew, limits his use of telecommunications, prevents him contacting terrorist figures, including Osama bin Laden, and requires him to report regularly to police.
Major Mori said the only outcome of placing a control order on Hicks would be bored federal police officers.
"They might have some bored Australian Federal Police after a month but if they have concerns they can do that."
May 3, 2006
David Hicks has every right to be less than gracious towards his American hosts.
Mean-spirited treatment of Hicks highlights the travesty perpetrated, writes Mark Baker.
THE multinational persecution of Guantanamo Bay detainee David Hicks has reached new heights of cruelty and absurdity.
Four and a half years after his arrest in Afghanistan while fraternising with the Taliban, Hicks is back in solitary confinement — still abandoned by his own Government; still denied the British passport that might secure his freedom, despite two court rulings in his favour; still a prized white scapegoat for a Bush Administration increasingly desperate to paper over its own Middle East misadventures.
Now, the 30-year-old Adelaide man is in fresh trouble — for being an ungrateful, unco-operative and uppity guest of the United States of America.
"He can be disruptive … He's not overly co-operative with the guards. He's a bit arrogant in his demeanour with us," complains Guantanamo commandant Colonel Mike Bumgarner. "Mr Hicks is always asking for special privileges and extra items beyond that which other detainees get. It's just been his nature … He likes to have a special menu. He sees himself as different from the other detainees for some reason."
And what sparked this scolding? Hicks, it appears, has gone on a laundry strike — refusing a change of clothes and linen after being denied a clean towel. "He was upset that he wasn't issued a second towel, one beyond that which other detainees had been issued," the colonel complained to the ABC.
All this might be dismissed as some kind of sad joke if it did not open a window on the Dickensian pettiness and inhumanity of the Cuban Alcatraz where the US continues to hold hundreds of men beyond the reach of international law, beyond the reach of its own courts, beyond the pale.
David Hicks has every right to be less than gracious towards his American hosts.
Arrested by Americans in a country far from America, he was, by his and other independent accounts, systematically beaten and digitally raped while held aboard a US Navy ship.
Most of his first two years at Guantanamo were spent shackled in a cage. For eight months he saw no sunlight. A further six months were spent in solitary confinement. Now Hicks is back in solitary — or what Attorney-General Philip Ruddock's office prefers to describe as a "single-occupancy cell" — a cramped concrete space from which he is released only briefly to exercise in the middle of the night.
The official explanation for the move back to solitary is that a section of the prison was undergoing repair and a number of detainees had to be moved. But Hicks' dogged US Marine Corps lawyer, Major Michael Mori, says the real reason is to put further psychological pressure on the prisoner. "It is not a disciplinary thing. There's no logical reason other than to break him," Mori said recently.
Far from the arrogant, defiant figure of Bumgarner's account, Mori and the Hicks family describe an increasingly demoralised and dehumanised figure weighed down by the indefinite years in captivity. Mori, who last saw Hicks two weeks ago, says he is in poor mental and physical condition and suffering from serious depression.
Initially described as one of the "worst of the worst" by his American captors, Hicks has pleaded not guilty to charges of conspiracy to commit war crimes, attempted murder and aiding "the enemy". But the case against him, and the justification for his continued detention, has appeared more tenuous the longer he has been held.
Hicks told Australian Federal Police officers that he underwent training in Afghanistan in guerilla tactics, urban warfare and intelligence gathering, but he denies ever taking part in combat.
Appalled by the September 11, 2001, attacks, he was preparing to flee when he was caught by Northern Alliance troops and sold on to the Americans.
If the worst Hicks did was to hang out with the Taliban at the time they were in the thrall of Osama bin Laden, he is more deserving of pity than punishment. While the Taliban invited overthrow by their excesses of medieval zealotry and their culpability in giving sanctuary to bin Laden and his cohorts, at the time the wide-eyed Muslim convert David Hicks went to Afghanistan they were an internationally recognised government in control of a sovereign state.
And we still await evidence of any Taliban involvement in the 9/11 atrocities — the events that triggered the US invasion of Afghanistan. As Mori observed recently: "What about the 40,000 other Taliban troops? Why aren't they being rounded up and tried?"
Meanwhile, the evidence of the travesty of international law and human decency that is Guantanamo has been offered in starker relief by Bumgarner's revelations about the mean and mean-spirited treatment of Hicks and his 557 fellow detainees.
During his time in the al-Qaeda camps in Afghanistan, one of Hicks' contemporaries was Melbourne man Jack Thomas — another gullible young Western recruit to the world of radical Islam. Last month Thomas was jailed for a minimum of two years for taking money from al-Qaeda.
Four years on, thanks partly to the shameful acquiescence of the Howard Government, David Hicks still doesn't have even a date for his trial by US kangaroo military court, let alone a sentence that might offer a light at the end of the dark tunnel of his incarceration.
An extra towel for Prisoner Hicks? How about a fair trial or a flight home — now.
Mark Baker is diplomatic editor.