THE TRIAL OF DAVID HICKS

Perhaps, I have to accept that David Hick’s lawyer knows more than I do, especially in regard to law, which should surprise no one. According to the SMH report :

“Over 50 members of the international media, from Al-Jazeera to The New York Times, along with lawyers from around the world, will join David Hicks’s father, Terry, and stepmother, Bev, to observe the most important test of America’s commitment to the international rule of law in the past 50 years.The first hearings of the military commissions set up by the Bush Administration to try unlawful enemy combatants captured in the “war on terror” are set to unfold and with it a new chapter in legal history. Australia, the only Western government to endorse the commissions, will be sending two observers from its embassy in Washington.”



Both the British Attorney-General and Hick’s US Military lawyer has said that the trial will not be fair. The Law Council of Australia is sending an independent witness to observe the trial. Background Briefing did a good job in discussing the rationale for Military Tribunals, and there related problems here. The Law Institute does not believe that the process and procedures are adequate or appropriate. The incarceration of Hicks appears to be in violation of the principle of Habeas Corpus.

Just a quick summary of some of the facts in relations to David Hicks, gives pause about the position of the Australian Government. Hicks was captured by the Northern Allianceand handed over to the Americans. The position of the Australian government is that while Hicks has not broken any Australian law, the United States is “the detaining power”, and that, if found quilty will guilty will serve his sentence in Australia.

The basis of the imprisionment of Hicks is further discussed here by former Attorney-General Daryl Williams. Aside from the obvious concerns about rules of evidence and lack of appeal, there are obviously questions about the legitimacy of the trail itself. For example, it would be interesting if the trial is justified in terms of international law. However, the Attorney-General in a recent speech set out the policitized view of the Australian Government here .

As previously mentioned, according to the Attroney-General, Hicks and Habib are facing trial in Cuba because they breached US law in Afghanistan and Pakistan, but they did not breach Australian law. Charges were laid by the US Secretary of Defence.

I assume that the Australian Government takes independent legal advice in relation to all the relevant matters, and I have been trying to find where has been published. They do claim to have obtained concessions from the Americans including serving any sentence if convicted in Australia.

UPDATE: The SMH had an editorial and further report today (now yesterday)

UPDATE # 2 : The SMH, showing good judgement, continues to cover the story here, here and here today.

So what can I conclude, although much more must be said (but perhaps not by me) that:

1. I am not sure about the extra-territoriality of US laws – surely the Australian Government should be promoting international law and legal process. Hicks, according to the sources here, was originally captured by the forces of the Northern Alliance in Afghanistan before being detained by the Americans.

2. I find it contradictory to say that Hicks has not broken any Australian law, but is regarded by the government as potential danger to the Australian public, and yet that same government provides the assurance that the legal process will be fair. If it were true now, it could not have always have been so, since the Prime Minister among others claimed that requested improvements to process have been accepted.

3. It is that American prisioners were not seen to Guantanamo Bay and subjected to the Military Commission process.

4. Even accepting, the proposition that trial of suspected terrorists requires different measures than ordinary criminals, there must be an inherent problem in an apparent judicial process, that holds people incommunicado for three years, and then charges with crimes that lack specificity.

5. It is not without significance that the British A-G repudiated the trial process. The Australian Government, as far as I am aware, has never sought independent legal advice. This issue reminds me of the politicizing of the refugess situation, so that refugees could not claim political rights.

6. Furthermore, I believe, we see evidence again of the Howard Governments subservience to thedirection of the Bush Administration.

7. I am reminded of John Donne: “Ask not for whom the bell tolls. . .”