Source : - Canberra Times

January 13, 2007

by Lex Lasry

IN THE five plus years that David Hicks has been in the custody of the United States, with most of that time at Guantanamo Bay and much of that time in solitary confinement, a great deal has been written in Australia both about the injustice of the military commission process and the extraordinarily long delay in bringing David Hicks and others to any form of justice.

Most Australians understand the importance of the rule of law. They understand the need for judges to be independent of executive government and need for a fair trial not loaded toward a guilty verdict.

They also easily understand the unfairness of having to serve a long prison sentence before being found guilty of any offence.

They can recognise the mental anguish any human being would go through being kept away from other human beings for most of every day.

And yet the government has been devoid of leadership on these issues as they affect Hicks.

So, where have they been? Why are they willing to condone the injustice at Guantanamo? How could they have done better? What should they have said and done?

The answer to the last question is to be found in the British approach to Guantanamo and a particular example of it.

On October 3 last year Lord Charles Falconer QC, Secretary of State for Constitutional Affairs and Lord Chancellor in Britain, delivered a speech at Georgetown Law School in Washington DC. It was delivered during an official visit he was making to discuss important policy issues with US leaders such as Attorney-General Alberto Gonzales.

I, of course do not know what he told Gonzales, but prior to his trip he had clearly stated publicly the view he held about Guantanamo and what was occurring there.

Quoted in the Washington Post on September 30, Lord Falconer said Guantanamo Bay was "an affront to the principles of democracy". Referring to Britain's experience of IRA terrorism in the 1970s and 1980s he advised the US to "keep your justice system as pure as you can. This is advice to a friend from the experience we have had."

He went on to describe the injustices that were done to individuals who were innocent of any wrongdoing during that period and the adverse effect it had on the efforts of the British Government to solve the Irish problem.

In the speech at Georgetown Law School he explained he and the British Government thoroughly understood the importance of the need to protect the community from terrorism and, further, the importance of the relationship between the US and Britain.

Nonetheless, as he made clear, sometimes allies disagree and on this issue Britain strongly disagreed. There are now no British citizens in Guantanamo and, of course, no Americans.

For me, it is embarrassing the Australian Government has made no such pronouncements. We seem to be the only country left that still supports Guantanamo.

The Howard Government has never answered the criticism of the military commissions beyond the glib observation that since September 11, we live in a different world where some bastardised criminal justice paradigm is now necessary. They seem to have made no effort to critically analyse either the earlier military commission regime established by order of US President George W. Bush in 2001 and condemned by the US Supreme Court in 2006 in Hamdan v Rumsfeld, or for that matter the new regime established by Congressional statute in 2006. In both cases Australia has blindly accepted what the US dished up to our citizen.

All the detainees at Guantanamo Bay are there in the first place because the Bush White House wanted to put them beyond the reach of the rule of law and independent judicial supervision. The President was advised, fortunately wrongly, that down there on foreign Cuban soil the US courts would conclude they had no jurisdiction to deal with applications by the detainees to enforce such rights as they may have had on the US mainland.

In 2006 a Republican-controlled Congress passed the Military Commissions Act, which takes away some important rights, such as the right to apply to the courts to challenge detention by use of the ancient legal remedy of habeas corpus.

It also nullifies the protections of the Geneva Conventions, which the US Supreme Court held in Hamdan v Rumsfeld applied to them.

Of course, this is legislation that would be most unlikely to have been passed by the Congress in its newly elected form controlled by the Democrats.

And we just stood by and watched. For three-and-a-half years, the Australian Government has been assuring us they have been applying "pressure" to the US administration to ensure Hicks, and originally Habib, were dealt with promptly.

Still there is no timetable and no trial date. The military lawyers are talking about another two years while legal challenges to the validity of the Military Commissions Act pass through the US court system.

The "pressure" has totally failed.

Apart from the injustice to David Hicks, which is considerable, the moral authority of Australia is being seriously compromised.

In recent years, this Government has opted for a pragmatic and flexible approach to the death penalty affecting people like Saddam Hussein, which I have criticised.

They have adopted a blinkered and unquestioning approach to the "fiasco" in Iraq as Washington Post journalist Thomas E. Ricks described it in his Pulitzer prize-winning book of the same title.

And their approach to Hicks' case is out of the same mould.

It is short-sighted, lazy and without critical analysis. For example, the present request by the Australian Government that the five years Hicks has spent in custody count as part of any sentence he is ordered to serve should have been made three years ago. Under the original Military Commission Orders pre-trial custody was never to count as part of a sentence.

Principles in isolation are meaningless. It is how they are applied in the hard cases that matter and the hard cases are often unpopular causes. As Lord Falconer has demonstrated, there is strength rather than shame in being critical of the US. The shame is that our Government lacks the independent fortitude necessary to make valid criticisms and demands for repatriation which would protect our citizen.

Melbourne barrister Lex Lasry QC has monitored the Hicks case on behalf of the Law Council of Australia.

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