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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

a shag on a rock « Previous | |Next »
July 2, 2006

David Hicks is an Australian/British citizen, at Guantanamo Bay. He has committed no offence against Australian law, yet the United States has held Hicks along with the other 450 prisoners at Guantanamo for over four years ---enough time to gather evidence to prove his guilt – if that evidence exists to convict him.

The Howard Government has been very determined to ensure the continuation of extreme punishment for Hicks.It does this knowing that Hick's imprisonment and treatment was illegal under international law, that the military commissions deny the basic rights to an independent and impartial trial, and that the interrogation procedures do not exclude evidence obtained by coercion, including the use of cruel, inhuman or degrading treatment.

Michelle Grattan's op ed in The Sunday Age points a finger on a key issue.

Grattan says that:

Hicks' training with al-Qaeda did not break the Australian law at the time. It didn't produce any terrorist act, or plan for one. It [the Howard Government] can't justify the extreme punishment to which he has been subjected.Yet nothing shakes the Howard Government's conviction, or its willingness to go along with what George Bush wants to do about the Guantanamo prisoners. It remains unswayed by the intense and mounting international criticism of Guantanamo Bay. It reacts to legal setbacks by sounding more shrill about the need for legal action.

Astonishingly, the Howard Government is willing to say that Hicks is guilty, it defends this kind of imprisonment (brutalising someone until they confess); says that the commissions were appropriate way to judge their citizens; and that they would provide a fair trial for those imprisoned. The Howard Government, in effect, provides whatever cover it can for the Bush Administration's illegal actions at Guantanamo Bay, and the illegality of the military commissions. The Australian government is unconcerned about the basic rights of one of its citizens.

In Hamdan v Rumsfeld, the Bush administration argued before the Supreme Court that the Geneva conventions did not apply to Hamdan, or to anyone at Guantanamo. Bush lost. The Supreme Court said the Geneva conventions absolutely do apply – and not just to the men in Guantanamo, but to anyone imprisoned through the war on terror. The Bush asdministration also argued that those imprisoned in Guantanamo had no right to challenge their imprisonment or the military commissions in federal court. Bush lost.

The Howard Government has played up the sense of urgency and danger in the war on terrorism and it avoids anything that would send a message that Australia is soft on terrorists. Invoking the war on terrorism plays upon fear and invokes strong meaures to ward off the lief-threatening danger. If national security requires a weaking in democracy or citizenship that is the price that needs to be paid. David Hick's has to be sacrificed for political reasons.

This kind of response to Hicks and Guantanamo expresses a political mindset about the use fo political power. The ALP should call for the closure of Guantanamo Bay as a way to challenge the neocon mindset that it is our duty to defer to the executive's, authority and military and foreign policy judgment.

| Posted by Gary Sauer-Thompson at 12:10 PM | | Comments (12)


Interesting comments.

But isn't also true that before the Surpreme Court decision, the various appellate courts found nohing wrong with the military tribunnals.

Also, with Hicks, it may be true that he didn't commit any offence against Australian laws. However, the US clearly believes he clearly commited som offence against US law/interests.

And it is in that context that the Hicks situation should be understood; not whether there was some offence against Australia.

We wrote a bit more here if interested

If as you say, 'the various appellate courts found nothing wrong with the military tribunals, then they were wrong.' Well Britain, unlike Australia, always regarded the military commissions as legally flawed and had its nine citizens held at the prison camp on Cuba repatriated and set free. And The Supreme Court ruled otherwise to the appellate courts.

Tis a strange sort of procedural justice youare willing to defend. Military commission trials leave detainees at the mercy of executive government, which has the power to keep them incarcerated even if they are acquitted or serve out their sentence. Are you willing to defend that--rejecting the US constitutional right not to be deprived of liberty without due process of law?

Secondly, if as you say, 'the US clearly believes Hicks clearly commited some offence against US law/interests', then what are charges? Where is the evidence? It looks to be pretty low level stuff.

The best I can find is this article in The Age. It says:

Hicks has been charged with conspiracy, attempted murder and aiding the enemy. But the charges are significant for what they do not spell out. Though they are extremely serious, there is no allegation that Hicks killed or specifically harmed anyone.His captors assert instead that he trained in al-Qaeda camps, guarded a Taliban tank at Kandahar airport and travelled to Konduz in northern Afghanistan to join Taliban engaged in combat against US-led forces. They say he intended to kill coalition combatants in Afghanistan between September and December 2001. They assert he aided al-Qaeda and the Taliban in the context of armed conflict.

I think that we should treat this sceptically--eg, 'guarding a tank' hardly makes him 'the worst of the worst' does it. Note that the charge says 'intend', not that he did.

(The Wikepedia article is better. We learn that Hicks trained with al- Qaida and learnt certain lethal techniques in the course of his training. So what? )

Hicks has pleaded not guilty to all charges. So he should be tried properly.

None of the above deserves the solitary confinement and being repeatedly beaten. It is not alleged by the U.S. that Hicks engaged in any actual acts of terrorism, nor that he killed any U.S. or Coalition soldier while engaged in fighting at Konduz. The charges indicate that Hicks is an "enemy combatant": ie., " One who takes up arms against the United States in a foreign theatre of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such."

If Hick was captured in a zone of active combat operations abroad in a uniform of sorts, this makes him an enemy combatant of the lawful type and thus a POW. Consequently, Hicks should be held and tried as a POW and protected under the Third Geneva Convention of 1949.

I appreciate that the US has maintained that the al Qaeda declaration of war on the US was illegal under international laws of war because al Qaeda was not a state. That, according to this policy, made the detainees illegal combatants. So we have a war on terrorism that is not a war. The spin has been exposed as spin by the Supreme Court.

Secondly, Hicks is presumed innocent of any criminal charges unless proven guilty beyond a reasonable doubt.The issue is one of the rule of law is it not?

Gary, we too can't find any public materials on the supposed charges.

But also, there have been many detainees released, eg Abdul Abib who have been subsequently released; which raises the question why not release Hicks unless there are serious concerns.

you ask, 'why not release Hicks unless there are serious concerns?'
The Howard Government doesn't want him released would be one answer. And it is probably a more plausible one than Hicks being the 'worst of the worst', given what we know of the minimal content of the charges against him.

And there you go WBW, we can't find any public materials on the charges just proves the point.

This whole process is a denial of natural justice and the rule of law.

If Hick's has done wrong, he should go to trial before a properly constituted court, that allows the defendant a decent ability to fight the charges.

On to the politics of the situation, the real reason why Hicks has not been released, in my humble opinion, is that Howard and Co. have asked that he not be. Not because of his evil doing, but because it would look politically bad if he was.

A sad reflection on the neo-con world.

Spot on BigBob, having Hicks back here telling the truth would prove very embarrassing to the government that have consistently demonized him as they abandoned him to liars and torturers.

To the Coalition Hicks is just part of the price "they're" willing to pay to protect wheat sales to Iraq. Pity that his torment, and that of our dead and wounded troops, hasn't even ensured that!

as I understand it one charge against Hicks is that he is/was allegedly a member of the Taliban---aiding the enemy.

The Taliban were the government of a sovereign nation--Afghanistan prior to and after 9/11. That nation was invaded by the US without anyone declaring war. Hicks was not captured whilst being involved in combat and there is some doubt if he ever were involved in combat.

The Wikepedia article says that Hicks wa sin Pakistan was there at the time of the September 11 attacks on the United States, which he saw on television. He then:

returned to Afghanistan in anticipation of the attack by the United States and its allies on the Taliban regime, which was sheltering Osama bin Laden.
that on returning to Kabul, Hicks was assigned by Mohammed Atef to the defence of Kandahar, and that he joined a group of mixed al-Qaeda and Taliban fighters at Kandahar airport... at the end of October, however, Hicks and his party travelled north to join in the fighting against the forces of the U.S. and its allies... after arriving in Konduz on 9 November 2001, he joined a group which included John Walker Lindh (the "American Taliban"). This group was engaged in combat against Coalition forces, and during this fighting he was captured by Coalition forces.

That is aiding the enemy isn't it.

Hicks claims that he disapproved of the September 11 attacks, and that he had been unable to leave Afghanistan. He denied engaging in any actual fighting against U.S. or allied forces.

The rul eof law is required to sort this one out not solitary confinement.

Clearly the Howard Government does not want to have anything to do with David Hicks. Downer is saying that the Government's preference that Hicks remained in the United States to face the charges against him. If he returns home, he cannot be prosecuted under Australian law. Why so? Because

"This is somebody who has trained with al-Qaeda, who's … been up before charges of conspiracy to commit war crimes and attempted murder, and I do think they are very grave charges, and it's our preference in those circumstances that Hicks be brought before a court of law"

What are these war crimes? What does attempted murder refer to?

Will the Howard Government come under increasing pressure from the US to accept him back? Will the Americans argue that keeping Hicks is stopping them from closing Guantanamo?

I can't for the life of me think of a worse example of a govenment abandoning one of its citizens. None of the examples that the government has given add up. Either he is accused and tried for some recognised breach of a recognised law, or he wasn't. I'm sorry, it's late and I've had a few bevvies after a trying day and I come home to this stuff. Gary, you and like-minded people are doing the best you can. Either Hicks is tried under some recognised law or they let him go. Anything Howard or that pusilanimous piece of animal dropping Downer - and Ruddock, for whom no adjective really suits - charge him, or he goes free. We, as Australians, deserve better. Are we equal before the law, or not? And if not, then how not,exactly? Kindly describe our country to us.


In the SA editions of the ABC's Stateline program Downer stated Hicks was a "murderer," then quickly changed this to "alleged murderer" so presumable the victim(s) has died since the "attempted murder" charge was laid.

I am unaware of any evidence that Hicks killed anyone. But if he did, given that he reportedly fought with a unit of the Taliban, the army of the de facto government of Afghanistan, which gives him the protection afforded troops at war, the its hard to see how a murder charge could be sustained unless the victim(s) was a civilian.

As for the conspiracy charge, how ironic! Given the revelations that Australia joined the CoW principally to protect wheat sales to Iraq, and not because of fears about an imminent attack by WMD wielding Iraqis, Downer could well find himself defending a charge of Conspiracy to Wage Aggressive War at the ICC (plus Crimes Against Peace - Waging Aggressive War and possibly other charges).

I'm not convinced the Americans want to see the back of Hicks. He is their bulwark against claims of bias based on ethnicity.

But you can be 120% certain Howard etc do not want him here under any circumstances, and their eversion will only increase as the next election draws ever nearer!

How anyone,who lives in a democracy can support the degradation of an innocent man and kangaroo courts is beyond me.


It has not been established that Hicks is innocent. He may well because of lack of evidence for the charges.What is beyond dispute is the kangaroo trial.

The US Government's tribunals, established to prosecute detainees at Guantanamo Bay, are part of a system that admits evidence, long considered unreliable, obtained by coercion. Worse, the accused can be denied the right even to hear the evidence against him.

Seventy-six of Australia's leading lawyers, including judges, insisted that the military tribunals violated international human rights law. Last week, the US Supreme Court agreed, when it ruled the tribunals illegal.

Yet Australia has repeatedly supported subjecting a citizen, David Hicks, to these tribunals despsite a fair trial for Hicks being an impossibility.

In doing so the Australian Government is saying no to the right to a fair trial; and no to the freedom from torture and cruel, inhuman or degrading treatment.

That undercuts the Howard Government's justification for invading Iraq or fighting the war on terrorism.