Source : - The Age
http://www.theage.com.au/news/opinion/negligent-or-just-ineffective/2007/01/09/1168104980192.html

January 10, 2007

by Lex Lasry

ON JANUARY 7, 2007, federal Attorney-General Philip Ruddock mounted a defence of the Australian Government in the case of David Hicks. The defence, in The Sunday Age, fails. It fails as much for what it does not say as for what it does.

The credibility of the Australian Government is drained by the fact that it apparently never considered that the original military commission process might have been unfair. Hicks was left to the mercy of that process.

The primary point now made by the Attorney-General is that despite that oversight and assertions to the contrary, the Australian Government has not abandoned Hicks and, in fact, does care whether or not he gets a fair trial. Further, the Government is "deeply unhappy" about the time the process has taken. For more than three years this unhappiness has had absolutely no effect.

In a joint news release with Foreign Minister Alexander Downer just over three years ago, the same kind of assurances were given.

That official release said the Australian Government had "reached an understanding" in relation to the now discredited military commission process established by President George Bush in 2001, and struck down last year by the US Supreme Court in its judgement in Hamdan v Rumsfeld.

And the assurances about that discredited system? Does this sound familiar? According to Ruddock and Downer, the US had assured Australia it would not seek the death penalty in Hicks' case. As well, Australia and the US had agreed to work towards arrangements to transfer Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and US law.

Of course, the hidden catch was that Hicks' pre-trial detention would not be counted as part of his sentence.

The Australian Government was also assured that, based on his circumstances, conversations between Hicks and his lawyers would not be monitored by the US — and of course in the land of "warrantless wire-taps", we would readily believe that!

And then this great step forward — Hicks would be actually allowed to hear the evidence against him and, subject to any necessary security restrictions, Hicks' trial would be open, the media would be present, and Australian officials could observe.

Having outlined the list of pluses, the Australian Government's concluding view about those illegal military commissions? "In these circumstances, we accept Hicks and (former Australian Guantanamo inmate Mamdouh) Habib could be tried by the US, provided that their trials are fair and transparent while protecting security interests. The Government believes that military commission processes will fulfil these criteria."

But the fairness and transparency the Australian Government was so enamoured of was short-lived. In August 2004 I went to Guantanamo as the observer for the Law Council of Australia, and officials of Ruddock's department went too. I thought then, and reported, that a fair trial for Hicks was "virtually impossible". The Australian Government has never publicly engaged with my criticisms of the process as it was then. But in a Government media release of September 5, 2004, Ruddock said: "In order to ensure that both Mr Hicks and Mr Habib receive a fair trial, the Australian Government reached an understanding with the United States that affirmed a number of significant safeguards including the presumption of innocence, the right to silence, the right to defence counsel (including an Australian legal consultant) and a guarantee that the indictees would not face the death penalty. Following our observations of the preliminary hearing, it appears that some improvements are required to ensure that understandings on procedural fairness are met in practice."

In 2005, Ruddock's department (perhaps wisely) stopped issuing media releases on the topic of David Hicks. After all, what could they say?

But on July 18, 2005, when asked directly whether Hicks could get a fair trial, Ruddock said: "We did look very closely at the framework of law surrounding military commissions to satisfy ourselves that those who appeared before it would be able to have effective legal representation; that the burden of proof would be beyond reasonable doubt. In other words, that it would include the fundamental safeguards that we would expect in a criminal trial, but also have available to it the opportunity to protect sensitive security information, which is the reason for having trials in that form.

"I later made it clear that there were some procedural issues, which we took up with the United States, and those matters have been addressed. … If there are no further appeals, the military commission process should be in a position to proceed."

Well, they did not look quite closely enough. On June 29 last year, the Supreme Court delivered its judgement in Hamdan v Rumsfeld. The court held, among other things, that the military commission under which Hicks was to be tried lacked the power to proceed because its structure and procedures violated both the US Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.

The Attorney-General of Australia and the Prime Minister (also a lawyer) and their full-time departmental officers missed those issues.

So in the second half of last year, Ruddock began to issue media releases detailing the assurances about the case he was getting from the US Attorney-General, Alberto Gonzales.

Gonzales will be remembered as the White House lawyer involved in the writing or assessment of the "torture memos" in 2002. As The Sydney Morning Herald reported in February 2005, during that time Gonzales advised President Bush that "… foreign fighters captured in Afghanistan and elsewhere should not have prisoner of war status under the Geneva Conventions", which in a war on terrorism he considered "obsolete" and "quaint".

Hicks has been vilified in the cause of diverting attention from the unfair process. He has been accused of causing his own demise by daring to challenge the same unfair process.

Now the Military Commissions Act, recently passed by the US Congress and on which Ruddock relies in his "defence", continues the controversy by its effective abolition of habeas corpus as a means of challenging the legality of detention by the executive government, and the legislative torpedoing of the protection of the Geneva Conventions.

What does our Attorney-General think about these things? Does he think about them at all?

More than five years on, and with no timetable for a "trial", the Australian Government has either been negligent in the way it has put the case to the US Administration or, at the least, embarrassingly ineffective.

This case just simply has to be brought to an end by Hicks' repatriation. Is there no one within the Australian Government with the idealism and fortitude to insist this happen?

Lex Lasry is a Queen's counsel.


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