The Age - July 20 2003
By Aaron Partick, Penelope Debelle and Louise Dobson

The Federal Government will not bring alleged al-Qaeda terrorist David Hicks back to Australia to face charges despite the United States military opening the way for his return.

A Pentagon spokesman told The Sunday Age the US "would not be unhappy" if Hicks, 27, and Mamdouh Habib, 48, from Sydney, faced charges in Australia, after the US Government suspended impending military trials of six men held at Cuba's Guantanamo Bay, including Hicks, a Muslim convert from Adelaide.

US President George Bush personally halted the progress of the military commissions during a visit to America by British Prime Minister Tony Blair to allow senior-level talks between British, US and Australian legal officials over how the tribunals should proceed.

The commissions, or tribunals, are to be based on a militaristic national security model rather than civil jurisprudence.

Speaking in Adelaide yesterday, Foreign Minister Alexander Downer committed Australia to Hicks's trial by a military tribunal and ruled out his return.

"We don't have an objection to the fact he will be tried by a military commission but we do want the military commission proceedings to be fair," he said.

Mr Downer said Australia was unable to prosecute Hicks under its anti-terrorism laws because they did not exist when Hicks allegedly trained with al-Qaeda in late 2000 and early 2001. Tough new terrorism legislation outlawing membership of al-Qaeda was not conceived until after the September 11, 2001, attack on the World Trade Centre, months after Hicks trained in Afghanistan. It was passed in November 2002, a year after he was captured.

Mr Downer said the US would not hand over Hicks or the two Britons scheduled for military trial to their home countries if there was no prospect of them being charged. He said no representations had been made to have Hicks tried in Australia, nor would there be.

"At the time David Hicks was training with al-Qaeda, our anti-terrorism legislation had not been passed through the Parliament; it hadn't even been introduced," Mr Downer said.

"Therefore to train with al-Qaeda was not a criminal offence. So unless you made the legislation retrospective - and we are not proposing to do that, to make criminal legislation retrospective - you wouldn't be able to convict him in Australia."

Speaking from Gwangyang Bay, in South Korea, Prime Minister John Howard said David Hicks had no right of automatic repatriation.

"There seems to be a notion around in some sections of the Australian community that an Australian apprehended abroad is entitled to some kind of repatriation to Australia to trial - that's not right," Mr Howard said.

Mr Downer said Hicks had not transgressed Australian law but US military law by being an enemy combatant against the US on the side of the Taliban and al-Qaeda.

Confirmation that Hicks would not be brought home dashed the remaining hopes of the Hicks family that they would see him in the short term.

Civil rights lawyer Franco Camatta said he held out some hope that Hicks would be repatriated and was disturbed this was not the case. "If he has not breached any Australian law, that is not his problem," Mr Camatta said.

The secretary of the Attorney-General's Department, Robert Cornell, and another senior official flew to Washington yesterday morning to negotiate with the Americans on the legal process after Mr Blair asked Mr Bush to intervene. Australia's Justice Minister, Chris Ellison, is expected to follow this week.

Mr Howard refused to detail Australia's demands for a fair trial but said he expected full legal representation for Hicks and a presumption of innocence.

Mr Downer said the US had already agreed that Hicks could have an Australian adviser on his legal team even though other Australians arrested abroad did their best with local lawyers.

"The proceedings should be fair and consistent with the types of proceedings we would have here with a court martial or some similar kind of judicial process," Mr Downer said.

"We want to make sure the military commission process is fair and meets appropriate standards of judicial fairness."

However Mr Camatta denied that Hicks could be fairly tried by a military tribunal, even if concessions were made. "He will be prosecuted by the military, he will be defended by the military and he will be tried by the military," he said. "He will not get a fair trial."

Australia appears to have extracted an understanding that Hicks will not face the death penalty, even though he allegedly trained with al-Qaeda.

"It is unlikely in the extreme he would be sentenced to death," Mr Downer said. "We have obviously had information that, depending on exactly what charges are brought against him and in the event that he is convicted of those charges, it won't be a sentence that will bring a death penalty."

Mr Camatta rejected Mr Downer's description of the tribunal as "an American equivalent of what we would call a court martial" because Hicks was never a member of the US military and was not bound by its laws.

The tribunals were set up to deal with a particular group of people held at Guantanamo Bay to cover offences that did not exist when they were committed, he said.

Mr Howard said Australia was trying to ensure natural justice for Hicks, captured by the Northern Alliance and imprisoned for 20 months without charge in the US military base at Guantanamo Bay.

"This arrangement having been entered into is not being done just for appearances' sake, it's going to be a very serious discussion," the Prime Minister said. But he also defended the right of the US to make sure Hicks did not escape trial.

Mr Downer said the US would not hand over Hicks or the two Britons scheduled for military trial - Feroze Abbasi and Moazzam Beg - to their home countries if there was no prospect of them being charged.

The US Centre for Constitutional Rights, which is representing the six men, said yesterday America wanted a guilty plea.

"Obviously the US is going to want there to be some form of trial that will include a guilty plea because they have said from the start these are 'bad guys'," said Steven Watt, a fellow at the centre.

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