Living in the Twilight Zone - ear-witness account of David Hicks
public meeting in Adelaide

by k-e

April 13, 2006

Incarcerated for over 4 years in America's notorious Guantanamo military prison in Cuba, much of that time in solitary confinement, and without charges being laid, David Hicks is one of the first detainees to face trial by military commission. The military commission process itself is currently being challenged in the US Court system, as its legality and capacity to offer defendants the right to a fair trial is seriously under question. His legal team explains why...

12 April 2006. It was a mild autumn night in Adelaide just before Easter, a Wednesday, an evening of some good televison if you enjoy the weirdness of Little Britain. The packed public meeting 'LEGAL LIMBO – 4 MORE YEARS FOR DAVID?' held in the North Adelaide Community Centre was organised by the small but indefatiguable Fair Go For David, a self-organised group working for justice for Adelaide-born David Hicks. Incarcerated for over 4 years in America's notorious Guantanamo military prison in Cuba, much of that time in solitary confinement, and without charges being laid, Hicks is one of the first detainees to face trial by military commission . The military commission process itself is currently being challenged in the US Court system, as its legality and capacity to offer defendants the right to a fair trial is seriously under question.

Speaking to the audience of a few hundred people of all ages and stripes were David McLeod, Australian solicitor for David Hicks; Josh Dratel, US Civilian Solicitor for David Hicks; Major Michael Mori, Military Solicitor for David Hicks; and Terry Hicks, David's father. Bronwyn, Co-ordinator of Fair Go For David, MC-ed the evening. Following is an account of their main points, as transcribed by someone who really should learn shorthand.

Josh Dratel is a 'big wig' according to David McLeod. He is a leading criminal defense attorney, former past President of the Criminal Lawyers' Association, and co-author with Karen Greenberg of 'The Torture Papers: The Road to Abu Ghraib'. Dratel provided some context of the American legal system and two current cases before the courts in the UK and the US which might effect David Hicks.

A couple of hours before the public meeting had come the welcome announcement that the British Court of Appeal had dismissed their Government's appeal against the granting of British citizenship to David Hicks. Dratel reminded us that the British Government has previously seen fit to assert the rights of nine of their subjects in Guantanamo and brought them home. These nine people are now living in freedom. Hicks, whom it was serendipitously discovered last year has a right to British citizenship through his maternal line, is hoping that Britain will step up to the plate in a way which the Australian government has failed to do, and uphold his citizen rights. The legal decision yesterday found that pre-citizenship conduct cannot be used to revoke such rights. Tony Blair's Labour Government can now play its last right of appeal card - to the House of Lords. But the Lords have a discretionary right not to hear this appeal should they so choose. And they can uphold the Court of Appeal's decision, if they hear the case.

One stipulation of the citizenship application process is that the applicant must swear an oath in front of British Consular officials. But without explanation, the officials' attempts to visit Hicks in Gunatanamo has been stymied by the United States. The same UK judge who initially ruled that Hicks could become a citizen has indicated that he is prepared to waive the sworn oath should circumstances prevent its being taken. Patel explained that the Government's claim that Hick's situation is fundamentally different to that of the nine men who were released because he had been charged, and they hadn't, is a pure distraction. The nine Britons were not permitted by the British Government to be charged under that system.

Last week the US Supreme Court heard arguments in the Hamden vs Rumsfeld case. Hamden is a Syrian national who, like Hicks, has been charged and is due to face the military commission. His case challenging the validity and constitutionality of the commission system has wended its way through the US courts and its principle issues are likely to apply to David Hicks.

According to Dratel and other legal experts, the commission system is against the rule of law, as it has been set up solely to convict people and deny them their rights. One of these rights is that a defendant can be excluded from his/her own hearing if the evidence relating to their charge is 'classified'. This is counter to the Detainees Treatment Act and the Geneva Convention. It is a moot point whether or not the US President has the authority to create such military commissions especially because they deviate from military law in significant ways. Patel stated that he did not think that the US Government could continue to prosecute David Hicks in a way that is congruent with international law especially after holding him incommunicado for 2 years, and subjecting him to torture. The outcome of Hamden vs Rumsfeld could unequivacably demonstrate to the Australian Government that the military commission is not fair, and that the only recourse is to bring him home.

David McLeod was appointed as Hick's Australian solicitor about a year ago. As an officer in the Australian Defence Force he held the rank of Group Captain in Iraq. McLeod stressed the complexity of David Hick's case, explaining that as an Australian appointed to the Hicks defence team he had to quickly understand the US, UK and Australian political systems, their civil court systems, and what the politicians and executive arms of government were thinking. He had to comprehend why the Department of Foreign affairs and Trade thought it was okay for David Hicks to remain in Guantanamo, and why the Attorney-General was so "smug" in his approach, why he appeared so "content" with what was going on. And why the US Government supported this situation, especially given that Australia was an active military ally. McLeod's role includes transmitting news of Hicks' case to opinion shapers in the media and community. He spoke of giving the Australian Government a window of opportunity to assist their understanding that it no longer passes the common sense test to stick to their policies regarding David Hicks.

Major Michael Mori is the military defense counsel for David Hicks. He first had access to David in December 2003, and initially thought he was signing up to defend someone in a court martial process. But this is not a fair trial, it is not based on laws and procedures. Why did the administration create a system where fundamental rights are removed? Because they have a vested interest in convictions. The key figures in the Department of Defense were also involved in fighting in Afghansistan, setting up Guantanamo Bay, setting up interrogation proecedures. In February 2002 they had publically condemmed all detainees in Guantanamo as "killers". Therefore they couldn't afford to have an acquittal. According to Mori this is like letting a jailer set up the justice system. It is a conflict of interest. There are no rules of evidence. They created the charges only after people had been incarcerated. They plan to allow interrogators give evidence, with no questioning of these interrogators by defense counsel permitted. One shocking revelation is that the authorities at Guantanamo intentionally didn't record the interrogations. Why not?!

David Hicks is not charged with killing anyone; he is charged with guarding a tank . If this was happening to an American citizen, Americans wouldn't rest. When Major Mori first met David he was in isolation, with no access to sunlight. Visits by his legal team, his father, his sister give David Hope. Because he can't have hope in the commission system, a system where not even expert witnesses for the defence are allowed to be called.

Terry Hicks has been tirelessly campaigning for his son David from the word go. He last spoke with David on Christmas Eve. His presentation was brief, thanking everyone who has been working for justice for David, and acknowledging the support of his own brother Chris. He said that once again the Americans "have found a reason not to like David" and have put him back into solitary confinement. He said that Americans believe that Guantanamo is there to extract information from dangerous people, but he doesn't believe that David is a dangerous person. After declaring that he wasn't going to "relent", Terry Hicks thanked everyone for coming, for listening, and urged people to "tell your friends".

After these presentations written questions from the floor were answered by the various speakers, and the meeting agreed on a censure motion against the Australian Government and Opposition for their shameful treatment of David. David can receive letters and books, although of course they are screened and not every book is allowed through (eg, forget about Breaker Morant, The Fatal Shore, etc). Major Mori brings books, letters and printed emails in himself, and David does appreciate this. It is very important for him to have contact with the outside world, as his emotional state is "fragile". If people would like to send something to David please contact Fair Go for David for details.

Saying ironically that David had not been returned to solitary, but was in a "single occupancy cell" Josh Dratel stated that he was so tired of the Australian people hearing the Australian Government repeating the US Government lines, when everyone in the States, including the US Congress, doesn't believe a word. Abu Ghraib exposed the fact that the liars weren't the detainees, but the US Goverment. It opened up a new way for people to view what happens to detainees, and the lies of their government.

Bronwyn closed the public meeting by giving the speakers a certificate of thanks and a bottle of wine, and reminded the audience that Fair Go for David meets monthly, and would appreciate any support people can offer.

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