A letter sent by Mr Ralph Berndtsson to the Federal Attorney General plus the reply. 

Mr Berndtsson's address and contact details have been removed (fairgofordavid.org)

Letter Sent
Reply Received


Letter Sent

September 23rd 2002

Dear Sir, As our Attorney General, I would like to ask you why no measures have been taken by the Australian Government to secure the fundamental human rights for the two Australian citizens who are currently unlawfully detained by the U. S. government in Guantanamo bay, Cuba - David Hicks and Mamdouh Habib? Considering that:

• they have not been charged with any offences,

• U. S. authorities deny them any legal representation,

• they have been held incommunicado since February and April respectively

I am astounded and horrified by the complete disregard for their plight and lack of action from the Australian government. I now wonder what, if any, assistance Australians overseas can expect from their government in case of denied justice.

Yours Sincerely,

Ralph Berndtsson


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Reply Received

ATTORNEY-GENERAL'S DEPARTMENT

Corporate Services

Dear Mr Berndtsson.

Thank you for your letter of 23 September 2002 to the Attomey-General, concerning the detention of Mr Hicks and Mr Habib at Guantanamo Bay. The Attomey-General has asked me to reply on his behalf.

Both Mr Hicks and M:r Habib are being held by US military authorities under President Bush's Military Order dealing with the Detention, Treatment and Trial of Non-US Citizens in the War Against Terrorism.

Mr Hicks was captured by the Northern Alliance in December 200 1. It is alleged that Mr Hicks has undertaken training with AI Qaida. Australian authorities had access to him in December 2001 and again, in May 2002. The purpose of the visit was to advance the Australian law enforcement and intelligence investigation into the activities of Mr Hicks.

Mr Habib was detained by Pakistan authorities in early October 2001 crossing the border from Afghanistan. It is understood that he was subsequently moved to Egypt before being transferred to US custody. It is alleged that Mr Habib has undertaken training with AI Qaida in Afghanistan.

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Australian law enforcement and intelligence officials visited Mr Habib while he was in detention in Pakistan. Australian authorities had further access to Mr Habib in May 2002 at Guantanamo Bay. The purpose of the visit was to advance the Australian law enforcement and intelligence investigation into the activities of Mr Habib.

In both cases, investigations are on-going. The Government expects that this process could take some time. The Government cannot comment further on the investigations so as not to prejudice the ongoing investigations by the relevant authorities or possible charges being laid. Neither the United States nor Australia is in a position yet to commence a prosecution against either man. For both countries, there is substantial work to be done before relevant decisions can be made.    

In relation to Mr Hicks, investigations are complicated by the unique nature of the circumstances surrounding Mr Hicks who was captured by Northern Alliance forces in a conflict zone and is being held in US military custody. The capture of Mr Hicks raises a range of legal questions relating to potential offences against Australian and American law. These matters are still being considered by the authorities.

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Criticisms that Australia is taking too long to investigate the activities in Afghanistan of both Mr Hicks and Mr Habib or to determine what, if any, charges may be brought against either are unfounded. There is a number of complicating factors in these investigations, including complex legal and difficult evidentiary issues.

Neither are routine police investigations where a crime has been committed and the purpose of the investigation is to find the person who committed the offence and to gather supporting evidence within Australia. The investigating authorities need to determine whether an offence has been committed, not within Australia, but within a war zone where there is no easy access to possible witnesses and next to no supporting infrastructure. Gathering evidence in Afghanistan is difficult.

The Government is concerned that both Mr Hicks and Mr Habib be treated humanely. The United States has announced that detainees will be held in humane conditions. President Bush's Nfilitary Order dealing with the Detention, Treatment and Trial of Non-US Citizens in the War Against Terrorism includes guarantees that persons subject to the Order will be treated humanely and afforded adequate food, water, shelter, clothing and medical treatment. The United States Government has indicated that detainees are having three culturally appropriate meals a day, have daily opportunities to shower and to exercise, and have access to medical attention.

In addition, there is a representative of the International Committee of the Red Cross at the military base, who has access to the facility to independently assess the condition of the detainees, and who also has access to the detainees themselves.

The Government is confident both men are being held in humane conditions and are in good health. However, the Government does understand the concerns of both families. Requests for access by the families have been passed to United States authorities. The Government has been advised that at this stage no family access is being given to any of the detainees in Guantanamo Bay. We have passed this information on to both families through their lawyers with whom the Commonwealth Attomey-General's Department is in regular contact.

Yours sincerely

Lester Watson
Director
Ministerial and Parliamentary Section


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