The Age,  May 8th, 2003

David Hicks and Mamdouh Habib, the two Australians incarcerated at Guantanamo Bay, are caught up in a maze straight out of a Kafka novel. They have come back into the news with John Howard's US visit and the release of some other foreign prisoners. But the Australians' fate remains clear as mud - and it's not something you'll catch the Prime Minister talking about.

When Howard attended an Australian Federation of Islamic Councils dinner in Sydney last month, Habib's lawyer, Stephen Hopper, happened to be among the guests. He asked the PM whether there would be any light at the end of the tunnel for his man after the Iraq war. Howard said: "I can't comment. It's a matter for Daryl Williams. You'll have to contact him."

Howard, who at news conferences these days dismisses any questions he finds
inconvenient, also refused to be drawn in the US. No, he said, he hadn't canvassed the issue with the President. "That matter was already under discussion between the Attorney-General and his relevant counterpart in the United States Government, and therefore there was no need and it was not appropriate that the matter be discussed yesterday."
Not appropriate? Why would it be "not appropriate" to bring up at the highest level Australians imprisoned (Hicks since January 2002) by the Americans?

Howard said the discussions under way were "relatively precise". "But I can't tell you why. You must understand that with something like this, I'm not and I can't give a running commentary." Why not? On security grounds? Hardly. A desire not to embarrass the US, which is still working out what it does with some of the prisoners and doesn't want foreigners treated differently from the American John Walker Lindh, who plea-bargained for a 20-yearsentence?

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Or perhaps Howard's obscurantism is to avoid admitting that if Australia took Hicks and Habib back it would have to release them because they couldn't be charged under Australian law? When they were apprehended - Hicks in Afghanistan, Habib in Pakistan -
Australia didn't have the anti-terrorism legislation that can now be used to prosecute people with links to terrorist organisations.

The only relevant law prohibited Australian nationals going off to overthrow foreign governments. But the Taliban, allied with al-Qaeda, was the government of Afghanistan.
The Australian Government this week denied a New York Times report suggesting the US had asked Australia to take custody of Hicks and prosecute him. But the Americans will send people back to their home countries on only one of two conditions: they consider they don't pose a threat, or the home country will keep them in custody. Some prisoners are
being released under the first criterion, but not so far the Australians.

As the PM points to Williams as the pivotal figure, The Age asked him where
things are up to. Williams says the matter is not being handled by the US Justice Department but by the US Defence Department. Australian officials and embassy officers
have had contact with the Americans. He's had contact personally - but he
declines to name names.

Those running a civil liberties line are misguided, Williams argues. Hicks and Habib "are detained under a (2001) presidential decree. They are in the custody of the US military, not the civilian authorities." (Hicks's lawyer says the Americans have denied in court that Hicks is held under this decree.) Williams notes: "The Americans don't accord them prisoner-of-war status - because the conflict was not between two uniformed armies - although they
are being treated like POWs (in the conditions under which they're held). They are called unlawful combatants. The US claims they are entitled to detain (Guantanamo Bay prisoners) until the end of hostilities. It is not clear when that will be, because this is the war against terrorism." This is just one of the catch-22 situations these men are in. Who thinks the Americans are going to declare the war on terrorism over any time soon?

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ASIO and the Australian Federal Police have had access to the two for investigative purposes. The Americans won't permit consular-purpose visits. The Red Cross sees them. Williams says: "How and when they are going to be dealt with is not concluded. The investigation is not concluded. No decision has yet been made on whether there will be charges under Australian law. That would depend on what the US does." The two countries wouldn't both prosecute because that would be "double jeopardy". (Cynics might describe the present situation is "jeopardy unlimited".)

As far as Williams knows, the Americans haven't made a decision on whether charges will be brought, or whether, if they were, "that would be under the American justice system or under the military commissions which can be established under the presidential order". These commissions - to deal with foreigners, not US citizens - are now ready to go once George Bush names people to be considered for prosecution. Williams acknowledges: "We're in new territory - no question about it. It's a difficult issue - not one you've got a precedent for. The rules are being made as we go. The Americans are taking a different path by making a presidential order."

Last week the Hicks family got a short letter from David. Writing in early March, he says the last letter he had received was dated mid-December. "I'm OK. I have nothing to say because today is the same as six months ago and six months before that." He writes that he's heard his father is tired. "I know that your (sic) doing a lot to help me but do not do it to a point so
that it affects your health." The military censors were apparently not allowing Hicks to give his reflections on the place. A blacked-out section was followed by his words, "That's Cuba for you".

And this is the war against terrorism, which has taken concerns about people's rights back to the worst of the Cold War days. But don't think the Howard Government is too worried about that or the two Australians, of whom it simply thinks the worst.

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