Source: The Australian,20867,21041321-601,00.html

by Pia Akerman and Samantha Maiden

January 11, 2007

Do not imagine the Government wants Hicks's repatriation. It wants him to stand trial at Guantanamo. Five years after the first terrorist suspects arrived at Guantanamo Bay, some of them remain in a legal limbo, writes Leigh Sales

RICH Armitage arrived for our interview just as the television in the corner of his boardroom broadcast a news flash. George W. Bush was about to accept the resignation of Donald Rumsfeld.

The former US deputy secretary of state and the embattled secretary of defence loathed each other. I picked up my pen, sure that Armitage was about to let fly. Instead, he gazed intently at the TV. His body language betrayed nothing. He did not say a word.

He was a lot less restrained a few minutes later when we began discussing the way Rumsfeld and the Pentagon have treated the Australian Government in the case of the Australian Guantanamo Bay detainee David Hicks.

"They are incompetent and this is Rich Armitage on the record," he thundered. "They cannot explain themselves and their treatment of our allies in general hasn't exactly been stellar."

Five years ago today, the first planeload of detainees arrived at Guantanamo Bay. Ever since, the Pentagon has repeatedly assured Australian officials it would resolve Hicks's case quickly.

It has not done so.

"I think it's fair that the Australians feel ripped off," a senior US military official told me recently. "It's unfortunate, because they have been very loyal."

The Howard Government has shown extraordinary patience, which is now running out. The Hicks matter will reach a pivotal point in coming weeks. After January 17, new rules will be in place for military commissions, opening the way for Hicks to be charged and tried. But can the Government be confident the Pentagon will finally deliver?

Attorney-General Philip Ruddock says his US counterpart, Alberto Gonzales, has assured him Hicks's case will be among the first to be heard. But for five years the Bush administration has let the Australian Government down time and again on this issue.

It took 2 1/2 years to get Hicks before a military commission the first time around. The Australian Government considered that 2004 hearing so "untidy" and "unprofessional" that it complained to a top US National Security Council adviser and requested changes. And the Government was furious at the beginning of 2005, when the Pentagon decided it was not going to charge the other Australian held at Guantanamo, Mamdouh Habib, after years of assurances it had a strong case against him.

Ruddock often excuses the Pentagon's poor handling of the Hicks case by blaming defence legal challenges for the delay. However, they stopped the military commissions from November 2004 to September 2006: 22 months. Hicks has been in US custody for 62 months altogether. The remaining delay has been caused by the Bush administration's poor management and the low priority of trials at Guantanamo, the Pentagon's bureaucratic inefficiency, a legitimately complicated and unprecedented situation and a severe breakdown in the Office of Military Commissions in 2004, when three prosecutors walked out, declaring the trials were rigged. There are warning signs once again that the Pentagon may not deliver quickly.

Its new strategy in Iraq, including a substantial increase in US troops, is a much higher priority than trials at Guantanamo Bay. There are plans to build extra courtrooms at Guantanamo for the new hearings, possibly delaying their start. As well, an appointing authority in the Office of Military Commissions has to approve charges against Hicks before his case can be heard.

The last appointing authority resigned in November and has not yet been replaced.

Given the Australian Government has tolerated this situation for five years, why has it now reached a tipping point?

First, it's risky for Canberra to continue relying on assurances from Washington. The Pentagon's credibility on this matter ended with its release of Habib without explanation in 2005. It could do the same thing now with Hicks.

Second, the present situation benefits nobody. It denies justice to Hicks. It cheats members of the Australian public, who wanted to see him tried years ago when there was timely evidence. It hurts the career of the American military lawyer, Major Michael Mori, who is stuck with the case until it ends. It devastates the Hicks family. It drains the resources of the Attorney-General's Department and the Australian embassy in Washington. It does not enhance Australian national security. And it delivers no political advantage to the Prime Minister. For five years the Australian Government has been dogged by criticism that it has abandoned Hicks. The moment he lands back on Australian soil, Hicks himself, and the question of whether he poses a terrorist threat, will become the story, much as it did when Habib arrived home.

Third, this is an election year. Although the Hicks case has gained little traction in middle Australia during the past five years, it is an irritant. The longer it goes on, the more people feel uneasy about the process. Why allow it to fester?

Finally, the Bush administration is toxic. The President's approval rating has plummeted to 36 per cent. He lost the House of Representatives and the Senate in the November mid-term elections. The war in Iraq is disastrous. John Howard has closely aligned himself with the Bush administration. Criticising the handling of the Hicks case now would establish some distance between the two before the next election.

Do not imagine the Government wants Hicks's repatriation. It does not. It wants him to stand trial at Guantanamo. But it is not prepared to accept more promises without results. When the FBI arrested Nazi secret agents in the US during World War II, their trials via military commission and subsequent executions took less than a month. From capture to execution, the Iraqi dictator Saddam Hussein spent two years and 17 days in custody. Hicks has now spent five years, one month and two days in prison, with no end in sight. The Pentagon must now act quickly and efficiently to fix that. It is said that the best predictor of future behaviour is past behaviour. On that basis, the Australian Government must be terrified.

Leigh Sales is the ABC's national security correspondent and author of the forthcoming The Worst of the Worst: The Case of David Hicks (Melbourne University Publishing).

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