The program was full of priceless moments, such as an exchange whereby one of the arguments Ruddock advanced for having Hicks go before the military tribunal rather than be brought home without “testing the evidence” was that it afforded him the opportunity to “clear his name”, followed by unanimous derisive laughter. Phil also seemed to be taken aback that the Pee Em said he could bring Hicks back any time he asked.

This particular episode is worthy of a thread on its own. All the arguments we have bandied about here were ventilated by Williams (Anthony Mason Professor and Director of the Gilbert Tobin Centre of Public Law at the Faculty of Law, University of New South Wales), an expert in international laws and conventions and others.

Moe Davis, for the first time for the US side, seemed quite partial to (a) a plea bargain, (b) allowing for time served if Hicks is convicted and sentenced.

I think there’s been a sea change, folks.

I note in other news, that leading Republican candidate for president Senator John McCain said that Donald Rumsfeld (who?) aka Rumsfled, was the worst defence secretary in America’s history.

Shit, where does that leave Bill O’Reilly? link?

Is a red herring. Though I’m sure you did not intend it as such and would support the call for his release back to Australia provided he gives his parole.

I was just pointing it out, patrickm, since it came up in the discussion. Certainly I’d like to see Hicks back in Australia.

The logic of the Bush administration decision is fairly straight forward – the Taliban and Al Queada weren’t even close to qualifying for being considered under the GC, so why waste time establishing a tribunal?

Well, you ‘waste time’ doing things like establishing tribunals because you have respect for the conventions to which you are a signatory.

Razor, you simply don’t get it. If we, (the good guys), feel that our legal system, freedom, way of life, etc are worth defending, then to compromise on those very same principles in order to overcome the baddies is to surrender our values in the process?

Saddam Hussein offered many of his sectarian enemies a ‘fair trial.’ He read or delegated that the charges be read in a hastily convened tribunal with no due process, declared them guilty and shot them in the back of the head/hung them, blew them up, etc. Does that mean that we should apprehend Saddam, declare charges in a hastily convened show trial with questionable due process, find him guilty and shoot him in the back of the head, or hang him or something? (Oh sh*t, we’ve already done that.)

We must afford a fair process to the worst of the worst if we value fairness and justice, and our judicial architecture. If we don’t value these things, then we have much in common with some of the people upon whom we have declared war.

Finally, there’s a point here about properly constituted warfare that is perhaps worth making. To put the value laden WOT polemicism aside, let’s look at a hypothetical case:

If a wealthy, well appointed military force declares war on a country whose government has been thrown out in a coup, and replaced by a poorly armed militia, then what is the obligation of either force under the Geneva convention? Should the poorly armed force choose to defend itself, it will contravene the GC on properly constituted warfare. If the invading force operates on Razor’s modus operandi, “they don’t come close to qualifying under GC, so why bother establishing tribunals,” and detains, tries and executes ‘unlawful enemy combatants,’ then doesn’t this set a messy precedent.

It creates an apparatus for genocide and flaunting of the GC. It gives places like Iran, Syria, Sudan, North Korea a very handy precedent. Razor will no doubt respond… ‘It would be completely unreasonable for any of these nations to take such actions. It’s only right when it’s being done in the name of Freedom by the leader of the Free world!’

Free no more.

The Taliban were only recognised by Pakistan and Iran and one other country…

Is a red herring. Though I’m sure you did not intend it as such and would support the call for his release back to Australia provided he gives his parole.

David Hicks is a POW and comes under the GC because;

4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

are POW’s

And Razor;

4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

are POW’s

Those in this category, who do not respect the laws and customs of war (such as by killing captured soldiers and so forth) simply become war criminals and liable to be dealt with accordingly.

Now I do not claim in depth study here but as I understand the situation;

Professional soldier David Hicks was living as a result of his Taliban income (we ought to ‘follow the money or the supplies’ because we know he has to eat). He was returning to his ‘post’ because a state of war was upon his army and he was captured by the Northern Alliance and sold to the US forces. Inhabitants are people that are present when you turn up to overthrow the regime and he was present and preparing to form up and take up arms. Absent any crime (and that could have been dealt with long ago if there was evidence that could stand a trial) he ought to be free.

It really is hugely damaging to the war effort to have any number of people confused by this issue and organizing for Hicks, when they ought to be organizing to defeat the bombers of universities and market places in Afghanistan and Iraq. (Note to Karen those are the people that are damaging the interests of the Iraq masses!)

It is inexcusable that the debate is sidetracked into an area where such basic rights and duties have to be explained and once more fought for. But that is the nature of united fronts. We unite with right wingers like Blair, Howard, Bush and Maliki to defeat fascists like Saddam, Al Zarqawi and Sadr.

It is only the fact that Hicks is Australian (also an abandoned Brit so no marks for Blair here) that sees him in this horrible state. If he were a natural born Iraqi or a local ‘brown skin’ Muslim he would have been free long ago. This is a case of racism.

His treatment is not only wrong in principle (and that is sufficient reason to set him free on his parole – just like any good German or Japanese soldier there is no endless WOT he was captured in the war against the Al Qaeda protecting the Taliban government of Afghanistan) but it also clearly harms the total world wide war effort. This is completely inexcusable bungling that allows the likes of Rudd, Garrett and Brown to make propaganda gains.

The ALP support the war in Afghanistan, so does Mark I think, but their leadership are as daft as any peace activist who chanted ‘no blood for oil’ when it comes to a strategic policy to deal with the region that gave us 9/11.

Take Garrett who is a supporter of the ‘War on Terror’ (a stupid and misleading name that conceals the reality of the need for a revolutionary war for bourgeois democracy). Garrett now supports the US Bases in Australia (though he was weak as piss the other day and had to be sent out the next day to clarify his weak kneed position). He has stated that he supports the US bases because the WOT is primarily a war of intelligence gathering. He is a dolt. The current war is about changing the governments of the region from autocracies to bourgeois democracies.

Intelligence gathering is only a minor part of any war. We know what the enemy want and where and how they work. We know where they are coming from. The job is to stop them. That could never be achieved by endlessly killing the mosquitoes. The region is a swamp and must be drained.

Africa and most of the old USSR a-stans can’t be left behind either.

The old US policies of promoting stability and suppressing the struggles of the people against their autocrats is finished. It’s over.

Progressives ought to be discussing the next strategic step forward instead our ruling elites are so breathtakingly incompetent that we are still dragging them past their bungling Abu Ghraib scandals, CIA Extraordinary Rendition nonsense, Guantanamo Bay and torture scandals. Progressive forces must eventually lead. First we have to expose the pseudo-left and liberals for being even more reactionary than garden variety right wingers like Blair and Howard.

Razor says;

To argue that because of the harsh treatment of terrorists by the US and the Coaltion of the Willing, those forces are inhumane war criminals is outright hypocrisy and head-in-the-clouds idealism. The fact is that the vast majority of operations conducted by coalition forces is in accordance with the law of war – minimising civilian casualties, treating enemy casualties as your own, prosecuting our own troops who commit atrocities etc etc.

The whole point is the damage these activities do to the war effort. The war will be won by mobilizing the masses not relying on the delusion of Rambo.

Karen:

and the rights of nations to self-determination (iraq): both bourgeois democratic rights history shows nations, oppressed nationalities, and individuals will always fight for, often to the death, if necessary.

We live in the era when ‘nations want liberation, countries want independence and the people want revolution’ and the US had since WW2 basically been the biggest obstacle to achieving these. But the new US policies are reversing this. The liberation of Iraq (don’t you remember the three elections in 2005 that confirmed that the Iraqi people were liberated) is clear.

Progressives are at war with Baathists, Jihadists and the most reactionary Shia theocrats and nationalists in the Shia death squads. The pseudo-lefts are more right wing than even GWB. Rudd and the ALP are further right than Howard. Get used to the new world.

Since Robert describes himself as a Marxist on leftwrites I presume he is attempting to use historical materialist methodology here.

I say this is a nice example of vulgar, or crude, if you prefer, economic determinism, in that it ignores that the relationship between base and superstructure is dialectical, in that it comprises two related poles that may at times come into contradiction. Further, Robert’s misguided application of Marxist methodology has lead him to not see the wood for the trees (always strategically bad) or acknowledge that even a cursory glance at history (try the 60s for starters) proves his reductionist thesis to be untrue.

If the dominant ideology of society, as Marxists have it, is the ideology of the ruling class, the reason the three issues referred to are “gaining tractionâ€? has less to do with the economic pain suffered by the masses, than the fact that cracks and divisions have appeared in the ruling class over these issues, and among their ideological and superstructural servants: scientists like Stern, Pentagon lawyers, state attorney-generals, capitalist politicians, etc.

In the case of Hicks and the Iraq War, one could also add the hoary and contradictory ideology of nationalism. Nationalism is quite possibly a major, certainly welcome and progressive factor in the growing unease in sections of the ruling class about continuing to passively kowtow to American political and economic dominance, given the US government’s dangerous disregard for elementary human rights (Hicks) and the rights of nations to self-determination (iraq): both bourgeois democratic rights history shows nations, oppressed nationalities, and individuals will always fight for, often to the death, if necessary.

As for the pugilistic aspects of this debate, Bush apologists are beyond convincing, having ensconced themselves the Impregnable Redoubt of Conviction.

Razor, for example, has above contradicted himself in consecutive posts. He is clearly not oblivious of that fact.

But when it comes to an article of faith that Bush is right and that Bush will prevail, mere evidence and argument count for nought.

Under Convention 5 of the GCs an apprehended person is treated as a POW by default until a “competent tribunalâ€? decides that s/he does not merit being accorded GC protections.

Katz – under Protcol 1 – assuming Hicks is not assessed as a POW by a competent tribunal (which the CSRT’s may or maynot be – ) but even if he had been:

Under Section 45
3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol.

reading Article 75 – especially this paragraph, it seems this is the paragraph that the Supreme Court ruled against in respect of the Military Commissions….

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and REGULARLY CONSTITUTED COURT respecting the generally recognized principles of regular judicial procedure.

The Supreme Court set aside its decision in respect of the CSRT’s because:

“Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubtâ€? whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.â€? . Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13th Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.”

Interestingly, ” James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT “do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of “enemy combatant. Determining whether a captive should be classified as a prisoner of war is the purpose of a “competent tribunal.”

Article 75 – should have been the first and last words even for illegal/unlawful/enemy/belligerent/combatants – excepting that this whole farce started with this order:

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
signed: GEORGE W. BUSH
THE WHITE HOUSE,
November 13, 2001.

http://www.au.af.mil/au/awc/awcgate/whitehouse/13nov2001militaryorder.htm

Round 2, ding ding…..

Big Gitmo Brother. Just wack webcams into Hicks and co’s cages, let the public watch and decide and then vote ‘em out or in.

OK, a interpanopticon carnival like that may be impractical for technical and security reasons, so why not instead pick by random ballot 12 average viewers, put ‘em in a room with Hicks and everyone arguing for and against him, then send them out to decide on his future. It sounds crazy I know but it just could work.

The logic of the Bush administration decision is fairly straight forward – the Taliban and Al Queada weren’t even close to qualifying for being considered under the GC, so why waste time establishing a tribunal?