No justice as Hicks thrown to the wolves

Sydney Morning Herald
August 5 2005

The Australian Government's support for US military justice has been exposed.

There's nothing quite as powerful as insiders telling it like it is. For years now we've had well-intentioned outsiders saying that the Guantanamo Bay military commission is flawed and designed to produce fabricated results. The three leaked emails that emerged this week from officers working within the US military commission apparatus blow the whistle on just how rigged, fixed, flawed and farcical is the trial process for alien enemy combatants held at Guantanamo Bay.

The British Attorney-General, Lord Goldsmith, has argued that the US process is unacceptable because it does not meet international standards of fairness.

Lord Steyne, a British appellate judge, has said that the US authorities were making "a preordained arbitrary rush to judgement by an irregular tribunal, which makes a mockery of justice".

The Brits were so incensed by what the Americans were proposing by way of the Guantanamo Bay trials that they insisted their citizens be sent home. Since arriving in Britain those detainees have been released, although some are under surveillance, nothing solid having been found to require their further incarceration.

Lex Lasry's comprehensive reports for the Law Council of Australia have been hammering out the same message with vast amounts of detailed assessment.

In what is now a cringing embarrassment for Australia, we have John Howard, Philip Ruddock and Alexander Downer insisting the US military commissions couldn't be fairer. George Bush, Donald Rumsfeld, Dick Cheney and Alberto Gonzales are the remaining few people in the world who agree.

Ruddock says he supports this process as part of his responsibility to "protect the Australian community". Even though it might be hard to appreciate precisely what David Hicks, as a modest foot soldier for the Taliban, might possess in terms of insightful intelligence, the Attorney-General insists there are so many security issues at stake that the only appropriate way he can be tried is by a US military commission.

Howard is confident that all is well because the complaints by those military officers have been investigated and everything has been fixed. Asked on the ABC who investigated the allegations, Howard said, without missing a beat: "By the people against whom the allegations were made." Furthermore, our new ambassador in Washington, Dennis Richardson, the former head of ASIO, has asked the US authorities about this and been told: "All is well. Please don't listen to people from the military saying your man Hicks won't receive a fair trial."

Everyone but the most gormless knows that Hicks won't receive a fair trial. That's the entire point of the military commissions as opposed to the civil courts of the US, where, it should not be forgotten, enemy combatants who are US citizens get to be tried.

Back in March last year when the crucial emails by the military officers were being composed, we were being assured by our Government that everything was going to be all right with the trial process. Now that the lie has been put to the scheme, the Government is not changing its tune.

The US has given a lot of assurances over the past four years about the sanctity of the system, and all of them have been quite groundless. Still Howard insists the Bush Administration is credible.

For instance, the Administration has said the Geneva Convention doesn't apply to these prisoners, nor does habeas corpus, that these prisoners do not have access to the US civil courts, that due process did not apply to them and that Guantanamo Bay is not under the "control" of the US.

The US courts have struck down each of those assertions. The US has even fiddled with the definition of "torture" to allow the use of a certain amount of abuse on prisoners so as to extract information. Confessions made during this new form of legalised torture will be admissible against the alien combatants at their trials. It was decided that there was no obligation to warn of the way their admissions could be used against them.

In other words the usual "Miranda" doctrine has been suspended. Confessions extracted under "interrogation techniques" from other prisoners can be used against Hicks. The fact that those prisoners have now been released and are unlikely to return to assist the prosecution means that their evidence is in the form of pieces of paper that can't be cross-examined.

The revised structure for the commissions is for panels of three, rather than five, officers. Two of the three are not required to have any legal training. A finding of guilt has to be by a two-thirds vote. With a panel of five that meant four had to find for a guilty verdict, now it is only two.

Panel members have included military officers who were either directly involved with the war in Afghanistan, who transported prisoners to Guantanamo Bay or who have expressed the view that all the detainees are terrorists.

If we need further evidence that the concerns of the military email writers are not too far wide of the mark, just consider the structure of the commissions. The Appointing Authority is John Altenburg, a retired major-general. He tells the presiding officer what to do. There is no independence between the person running the tribunals and the person appointing them and approving the charges. This is a serious flaw.

As far as I can work out, the presiding officer is Colonel Peter Brownback III. Brownback has shown the colour of his money by declaring the accused in a military commission has no right to a speedy trial.

As we know, the US civil courts have made inroads into the original scheme for the dispatching of these enemies. In response to those findings, the Combatant Status Review Tribunals were set up to try to decide who really should be tried and who shouldn't. In themselves they were utterly unfair bodies, and the US courts had no trouble finding them to be in breach of the due process amendment of the US constitution.

Hicks has his own action on foot in the US courts. It may take years before it is resolved, up and down the appeal ladder. Meanwhile, Howard and Ruddock say it is fair that he remains incarcerated. One other little point is that even if he spends 10 years at Guantanamo Bay before he is tried and sentenced, that time is not to be regarded as a credit in his ultimate sentence.

Surely, it must be clear that by selling Hicks out to this process and the ultimate dictates of George Bush, Howard and Ruddock have sold us all out.

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