A reply to a letter sent by Mr Gavin Date to Chris Gallus MP, Federal Member for Hindmarsh and Parliamentary Secretary (Foreign Affairs).      

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

14 March 2003

Dear Gavin

Thank you for your letter concerning David Hicks, an Australian citizen detained at Guantanamo Bay.

Mr Hicks is being held by US military authorities under President Bush's Military Order dealing with the Detention, Treatment and Thai of Non-US Citizens in the War Against Terrorism.

As I am sure you are aware Mr Hicks' lawyers are intending to lodge an appeal to have him released from Guantanamo Bay, after the recent decision by three judges of the United States Supreme Court that the court has no jurisdiction over the case for andlor against Mr Hicks.

Mr Hicks was captured by the Northern Alliance in December 2001. It is alleged that Mr Hicks has undertaken terrorist 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.

The investigation is 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 possible charges being laid or the ongoing investigations by the relevant authorities. Neither the United States nor Australia is in a position yet to commence a prosecution against Mr Hicks. 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 in a conflict zone and is being held in US military custody. The capture of Mr Hicks by the Northern Alliance raises a range of legal questions relating to potential offences against Australian law. These matters are still being considered by Australian authorities.

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

This is not a 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.
The Government is concerned that Mr Hicks be treated humanely. The United States has announced that detainees will be held in humane conditions. President Bush's Military 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 Mr Hicks is being held in human conditions and is in good health. However, the Government does understand the concerns of his family.
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 his family through their lawyers with whom the Commonwealth Attorney-General's Department is in regular contact

Yours sincerely

Hon Chris Gallus MP
Parliamentary Secretary (Foreign Affairs)
Federal Member for Hindmarsh

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