ABC story here. The government thinks the plea-bargain is just fine and dandy, though Alexander Downer is indulging in hand-wringing over the delays in the trial process.
There are a million observations that could be made about this debacle. But one that strikes me is that for all the aberrations of this process, the end result of the trial is all too common in the US criminal justice system, at least as I understand it. A guilty plea, in the face of draconian penalties from a guilty verdict on the original charges, with the promise of a radical sentence reduction. And thus we will never get a satisfactory legal test of Hicks’ actual guilt or innocence.
One other question – what should Labor do if Hicks is in an Australian prison when a Rudd government (cross fingers) comes to power later this year, or early 2008?
UPDATE: in comments, Atticus links to a long but informative law review article that argues that the plea-bargains struck in military tribunals are unconstitutional because of their unfairness. Interesting, though I wonder about the implication that the normal operation of the plea-bargaining system in the USA is actually fair…
If Hicks is brough back to Australia, a signatory to the Geneva Convention and The International Court in The Hague, then wouldn’t Julian Burnside and Co. get medieval on the High Court’s arse to have him released from the moment he lands on home soil. Any deal that Howard(to save electoral bacon) has done with Bush would be rendered irrevant in International and Australian Law, wouldn’t it Robert?
Five years chained to the floor of a cell and tortured, who wouldn’t cop a plea to get out of hell on earth? By definition, it’s impossible to get a fair trial in a kangaroo court. Even the new Pentagon chief, Myers, told Bush he should shut it down.
It is hard to take this plea bargain seriously.
The argument against the use of plea bargaining in “enemy combatant” cases was ably set out by Carl Takei in his article, “in the Boston College Law Review (available via SSRN). Here is his conclusion:
Although I am not in a position to evaluate his argument about the legality of these plea agreements, Takei’s case against the efficacy and justice of the plea bargaining system in such outrageous circumstances is difficult to fault. I urge you all to read the whole article.
I would think so…and the spectacle of such a court case would be, um, rather distracting for a government in an election mode.
For more reasoned legal opinions, maybe one of the other LPers will weigh in.
It’s disappointing but how else would defence counsel advise? Put yourself in Major Mori’s shoes.
The Military Commission is a ‘our way or the highway’ process, and if David Hicks didn’t plead guilty, he would have faced a hostile prosecution and his sentence would have been lengthy. And he can’t count on political relief coming from a change of government in Australia, or the US.
- Guilty verdict is literally ensured.
- Bizarre rules of evidence laid out in the manual (a good article at Eureka Street on the manual for military commissions, subscriber only, which outlines that time served is not ordinarily part of the sentencing provisions)
- inadequate defence compared to a well resourced prosecution
- inhuman conditions in Guantanamo Bay, and after five years, who can blame him.
But still it’s a shame he has pleaded guilty. Once he pleads guilty, then he surrenders the moral high ground, and submits to the process, despite the fact that the retrospective charge, commission process and process of interrogation are patently illegal and immoral.
Still, who can blame him.
All this law-talking is missing the real story here – Hicks has put on weight! What a mystery! I’ve been racking my brain about this one. Does anyone know if snouts and entrails tend to be lean or more to the fatty end of the meaty spectrum?
A question.
Hicks’s case is settled through the plea bargain and he returns to Australia.
The US Supreme Court subsequently decides that the military commissions are once again unconstitutional.
Is Hicks still a convicted terrorist?
The regime for international transfer of prisoners is, perhaps not surprisingly, governed by the International Transfer of Prisoners Act 1997 (Cth).
No transfer can be made while the conviction or sentence is subject to appeal in the US: s 15(1)(a). As Hicks is striking a plea deal, it is unlikely he would appeal, so this won’t prevent his return.
The sentence must also have a fixed term (including the parole period): s 15(1)(c). This won’t be a problem.
A transfer can only be made if the acts constituting the offence in the US would have constituted an offence in Australia: s 15(1)(b). There may be some argument about this, but s 15(3) allows the Attorney-General to “determine that the requirements of subsection (1)(b) … need not be satisfied in a particular prisoner’s case”. It is almost inconceivable that the A-G would determine otherwise in Hicks’s case.
The A-G may decide whether the prisoner will serve their sentence as close as possible to the way it would be served in the transfer country, or (with the transfer country’s approval) the A-G may “convert” the sentence to one of a different length and method: s 42. The sentence the prisoner serves here must not be “harsher” than the original sentence: s 43.
As far as Enemy Combatant’s question goes, the answer lies in s 45:
So it is unlikely that any High Court challenge would be successful.
There is, however, the possibility that Hicks could be pardoned or have his sentence commuted under s 49(1):
That, I would think, is Hicks’s best shot, but it’s still not a great one. It is unlikely that the Government would concede that the Military Commission process was flawed by pardoning Hicks or commuting his sentence.
It is far more likely that he will be released on parole and made subject to a control order. Whether this happens before or after the election will depend on the Government’s assessment of the relative political cost of either locking Hicks up (which will certainly lead to protests) or releasing him (which will increase his access to the media).
Yes – but other detainees are appealing the unconstitutionality of the military commission and they well could be successful in having the commissions scrapped.
Grubby asks what happens if the Military Commission process is subsequently struck down as unconstitutional by the US Supreme Court. Assuming that Hicks’s conviction was nullified or quashed as a result, that is covered by s 49(2)(b), which relevantly provides:
I’m sure the Australian Governtment would love that.
It’s not Mori’s job to conduct Hicks’ defence in the way that maximises the political embarrassment toi the Howard government, however viscerally satisfying that may be to many people. It’s Mori’s job to do the best he can by his client. And he probably has done just that.
Rudd won’t do anything to go back on the deal. If he did, the next Australian to be caught up like Hicks would be locked up and forgotten about not for five years but for the rest of their life.
Given that his legal team were trying to delay the case as late as last week, any cries of delayed justice ring very hollow, as even the ABC itself notes:
BTW, I bet no-one here would question the genuineness of a guilty plea by Scooter Libby. No, it would be full-steam ahead, next stop Jonesville Virginia. Well, from Hick’s own lips is good enough for me. On the bright side for St. David, it looks like he’ll have lots of conjugal visitors.
The Hicks’ guilty plea was the top story on the radio news here in Austria this morning.
I was unaware that “Scooter” had been imprisoned without charge, subject to torture, and had to face a “court” designed to find him guilty of whatever could be dreamed up by Bushco.
Please enlighten me, Craig Mc.
Robert Merkel, Atticus and All:
Quite apart from giving great encouragement and assistance to terrorist organizations through this persistence with kangaroo courts, especially in the face of so much professional military advice …… there is one good thing likely to come out of this unholy mess:
People on both sides of the Pacific will now be driven to re-examine their laws on treason.
If American military personnel swear their oath to uphold the Constitution of The United States …… then how stand those American military personnel who have chosen to give their allegiance instead to a Monarch – whether that monarch be called “president”. “king”, “fuehrer”, ‘ayatollah” or whatever? Are they guilty of treason – even though they may have committed such a crime with the noblest of intentions?
How stand those Australian politicians who have deliberately and persistently chosen to serve a foreign ruler to the detriment of Australian people, Australian laws and Australian defence? Are they then guilty of treason and should we condemn them as traitors? We are entitled to ask.
Long after David Hicks himself has been forgotten the Pandora’s Box opened by this case – and its consequences – will be known and remembered by everyone.
Come on, Craig, let’s be serious.
The biggest delay was due to the fact that the Supreme Court found the Military Commission process was illegal, and forced the US Government to start again. That can’t be blamed on Hicks or his team. It is plainly the fault of the US Government.
After that decision, there was further delay as a new Commission system was designed. Then we waited for the charges to be announced. Then we waited for the charges to be approved. All of this delay was due to the US Government.
Remember, during this time Hicks was facing several charges, including attempted murder. The prosecutors were forced to drop all but one of the charges. As soon as they did so, Hicks pleaded guilty.
How on earth can you blame Hicks for the delay?
And on the validity of the plea bargain, why don’t you read the article I quoted and linked? It shows why it is totally illegitimate to compare the normal, run-of-the-mill plea bargaining process (which is not always fair) with the “enemy combatant” plea bargaining process (which is almost always unfair). What does Scooter Libby have to do with any of this?
By agreeing to incarcerate Hicks under the International Transfer of Prisoners Act 1997, the Howard Government would be conceding the legitimacy of the exercise in executive action embodied in the Military Tribunal Process.
I notice that about half this Act is comprised of provisions that apply only to US Military Tribunals:
Thus, uniquely, executive action by a US President is accorded a status equal to real judicial processes in other jurisdictions. Were, for example, the French President to establish such a tribunal, its sentences would not be recognised under this Australian legislation. Perhaps even a Star Chamber established under the aegis of Queen Elizabeth of Great Britain would not be recognised.
What public interest is served by singling out the executive authority of one Head of State among hundreds for juridical recognition by the commonwealth of Australia?
Might not this act breach other treaty obligations and therefore be unconstitutional?
“And thus we will never get a satisfactory legal test of Hicks’ actual guilt or innocence.”
Bwahahahahahahahahahahahahahahah! That really is priceless. Why do lefties continue to back lost causes. The guy was as guilty as hell right from the start and blind freddy could have seen that. Now that he openly admits it, they still can’t see it. There are unknown truths, known truths, yada,yada and then there are lefties. Bwahahahahahahahahahahah!
He pleaded guilty.
Thus the American version is now the authentic version of what he got up to.
It came from the lips of the man himself.
It isn’t Hallowe’en is it?
So why are the usual RWDB hobgoblins so frisky this evening?
Let’s put it in short words even they understand.
The question isn’t guilt or innocence. The issue is the process of proving guilt.
Y’see, Obby and SATP could be crocodile clipped to a Tucker telephone and asked many questions.
In the end, they’d plead guilty to anything to make the pain stop. They may even plead guilty to stuff for which they are guilty.
But it’s hardly a reliable process, is it?
Real courts of law minimise the opportunity for torture or coercion to be used.
That’s why Hicks should have been found guilty in a proper court of law.
The guy is a three time loser. Fought with the KLA in Kosovo, boasted to his father that he had shot hundreds of rounds at Indian troops from Kashmir, caught with hundreds of rounds and a few hand grenades in Afghanistan.
If the Americans lacked integrity, they would have shot him upon capture.
Pleading guilty has one huge benefit for the guilty one.
The evidence never makes it into public.
“He pleaded guilty.”
If it comes to that, so did Zinoviev at his show trial in 1936. He was also charged with terrorism offences.
“Pleading guilty has one huge benefit for the guilty one.
The evidence never makes it into public.”
That’s true, but this thread is about David Hicks, not Scooter Libby.
Please! Not a typo. Frequently used. What is so difficult with plurals and apostrophes?
Or am I just a pedant?
As for SATP
SATP, torture will make anyone say anything the torturer wants the tortured to say.
Please!
Katz, the provisions in 4A were added in 2004. At the same time, the definitions were changed so that Guantanamo Bay was treated as a part of the US for the purposes of the legislation. You might be interested to see that both Labor and the Greens raised concerns similar to yours, but did not oppose the Bill because it would facilitate the return of David Hicks to Australia.
As to your question about whether “this act [might] breach other treaty obligations and therefore be unconstitutional?” A law breaching a treaty obligation does not make it unconstitutional; if that was the case, much of WorkChoices would have been chucked out by the High Court.
some rather heavy grade denial going on tonight.
Hicks-pleaded-guilty-deal-with-it
Spiros:
Thought nobody would ever get around to mentioning Mr Josef Stalin’s entertaining show trials. [All RWDBs, just face reality: Mr Bush and his accomplices have now turned Commie].
Basically, people have dealt with it, and realised that the guilty plea doesn’t change anything. You still believe what you already belived, and people that questioned the legality of the process still question it.
If Dolly and Howard think they’ve defused a ticking electoral time bomb, they’ve made another of those mistakes that have become so common over the past few weeks.
Well, plainly there was a charge, because Hicks just plead guilty to it. Now I’ll take the various boys who cried torture more seriously when I see some physical evidence of such. Perhaps the Afghani Candidate was brain-washed into confessing by being given the apparent super-size me diet.
You claim that the system is rigged for guilty verdicts, well that claim would fall apart on the first dismissal, wouldn’t it? I’m patient.
So much hyperbole, such an unworthy beneficiary.
A Crown Solicitor under riding instructions from a Labor Attorney General might argue this point less insistently before Their Honours.
I wonder which part of the rule of law the above wretched commentators do not understand.
And why do they persist with the delusion that this is about David Hicks when a moment’s reflection should provide the realisation that this goes far beyond one unfortunate individual?
Fact is, Larvatus Prodeo gang, the MSM still beats you hands down on crucial matters.
Evidence: Alan Ramsay, SMH columnist, December 2005 and your written record on this:
Craig Mc
With the Amerikans freely acknowledging the use of “waterboarding”, sleep deprivation, continuous solitary confinement, what other evidence of torture is required ?
Oh, I forgot, Bushco. have changed the definitions of torture – to exclude the above treatments – surely a move reminiscent of the great Stalin.
Then, in a further demonstration of of their devotion to “Justice, and the Amerikan way”, said cabal also found that the only charge they could sustain had to be applied retrospectively to Hicks, and even that seems pretty suspect, given that Hicks was supposedly spying on an embassy which had been closed for around 12 years.
Rather reeks of desperation to me.
If the tribunals were not set up to find the captives guilty, why use such a (flawed) mechanism at all ? Any alleged crimes committed could be tried according to the established principles of transparency, freedom from torture, right to adequate defence, a fair trial, etc., as included in the justice systems of all civilised nations. That the Bushistas chose this method clearly illustrates their ongoing contempt for such principles, and clearly places them among the enemies of freedom.
In the interests of life maintenance, I would suggest that you do not attempt to hold your breath while awaiting a dismissal – after all kangaroo courts are not known for acquittals.
Bridie, if you have a point, I fail to grasp what it is. Perhaps you should have contacted the MSM instead.
We need to be clear that Hicks only pleaded guilty to belonging to a terrorist organiation (Al Qaeda) but not gulty to committing any terrorist act as charged. This was according to his US defense counsel (not Maj. Mori) as interviewed on the 7.30 Report.
I don’t get it either. What’s our “written record on this” which is being compared to Ramsay’s column?
Everyone:
Given all the circumstances, any admission of “guilt” is meaningless. Whether David Hicks was guilty as sin or as innocent as a newborn baby irrelevant too.
What is important, meaningful and relevant is that the Americans had so much contempt for Australia that they did not hand David Hicks over to Australian authorities immediately he was captured and that they continued to detain him and mistreat him. This continues to be a deliberate insult to Australian sovereignty and an insult to Australian service personnel risking their lives in the fight against the terrorists; it shows complete distrust and scorn for Australians.
Those fools who are gullible enough to believe that a “guilty” plea under duress will mean that David Hicks will ever get back to Australia had better start thinking of what excuses they’ll make if – or when – David Hicks is executed.
Hicks to be executed?
Optimistic of you Graham Bell.
Alas we’ll probably have to settle for his return to Australia.
GB – If the Americans wanted Hicks dead, they hed the perfect opportunity at the time of capture. They are, on the whole, too decent to take that approach.
Consider the upcoming moral dilemma for the left: Australia will have to make pretty solemn agreements to detain Hicks for the term he is sentenced for before the Americans release him for detention in Australia. What’s the bet that when he arrives, his cheer squad will agitate for him to be released prematurely?
Will you be supporting them? Would you have released the Rainbow Warrior murderers if you were France?
Yes, we need to be clear. I didn’t see the 7:30 report, but Hicks wasn’t charged with committing any terrorist act in the first place. He was charged with providing material support for a terrorist organisation, such “support” including, amongst other things, spying on the US Embassy building in Kabul, which had been abandoned by the US in 1989 after the Soviet invasion.
Lets put into perspecting ANYTHING which comes from Hicks’s lawyers.
Pablo, after hearing for some time (via Hicks’s legal team – including Major Mori)that David was losing weight, going pale without sunlight, etc etc, I now read reports from today that he fronted court with a complexion matching that of Major Mori and considerably overweight.
Oh, I forgot, Bushco. have changed the definitions of torture
Difficult to forget something you never knew, Pterosaur. Care to provide any evidence in support of this assertion?
Arrgh! Abandoned by the US in 1989 after the mujahideen takeover.
Graham Bell – we all live in hope.
If you polled the population of a jail the vast majority would tell you tht they are innocent, too.
His legal tam and supporters have been shown to be liars – he was getting fat at Gitmo – not losing weight. He also has a tan showing the lie of not seeing sunlight for extended periods.
You Hicks supporters are a treat – there is clear public evidence of his particpation in terrorist activities, even before the prosecution produced what they have discovered. And now he has pleaded guilty. You guys are unbelievable.
These sorts of comments are pointless, Bridie. The fact that we weren’t writing about him doesn’t mean that our concern for the issue isn’t sincere now. Blogs aren’t newspapers – they don’t pretend to be journals of record covering every issue and because they tend to be reactive to the news agenda, they tend also to pick up on what’s currently in the public eye and in the public mood. But the whole MSM v. blogs thing is silly. We aren’t trying to claim we’re “better”.
I realise that for you wingnuts what daddy Howard and uncle Bush says has to be true, otherwise you’d look like a bunch of gullible idiots.
But the evidence is almost overwhelming that Howard and Bush are profound liars. So your opinions carry about as much weight as those of people who say they can communicate telepathically with aliens.
I know that this may be difficult for you Razor, but if you try really hard you may be able to work out the difference the ‘vast majority’ of the jail population and David Hicks.
SJ I have no idea what you mean by that. What have Howards and Bush go to do with this case? Have you not heard Terry Hicks reading his son’s letter boasting of shooting hundreds of rounds at Indian Troops? Or referring to the worldwide Jewish conspiracy?
The guy is a bad egg – and now he’s pleaded guilty
Thanks for answering my question Kim.
I’m really amazed at the lunacy of some comments here that see the Bush commissions as having legitimacy – one person even advocates updating treason laws! (In Britain you have to go back to the 14th century to find them). It really shows how effectively people have been hoodwinked by talk of Hicks being a ‘terrorist threat’. Wasn’t he simply volunteering to fight for a government, albeit a repressive one which i have no sympathy for?
And the idea that the defence was assisted by ‘evidence’ not being presented. What a joke. Wasn’t the lack of evidence the whole reason for these Commissions? As i see it, the new Commission regime even more blatantly contravenes the Geneva Conventions than the old one, and so will eventually be struck down, and Hicks’ conviction will be quashed. Of course you can’t have justice after five years of torture and under a show trial regime dreamt up by Pentagon busy-bodies.
Free David Hicks!
Free Khalid Sheikh Mohammed!
No probs, Bridie.
If I wrote blog posts about everything that got up my goat, I’d never have time for anything else and I’d probably end up spending far too much of my day steamed up!
Wasn’t he simply volunteering to fight for a government, albeit a repressive one which i have no sympathy for?
You haven’t been paying attention Will. Hicks went to three different countries to shoot at people. Could be that he just likes killing.
It amazes me the confidence of some peoples attitudes to Hicks and what he may or may not have done.Recently I have been visiting You Tube and I have found videos political on matters Habeas Corpus.There seems little left in the American Constitution that would bring a comfort to Australians as a right at Law.Any depiction of Hicks an Australian citizen frightens me.Even Mori has been tested and to resist had to counter with his own test.I accept Hicks unhappiness with losing lawyers,because after five years and a obvious mental condition,as expressed by rapid weight gain,the Hell hole justice as place and routine is getting to him.31 years of age and 26 when this nightmare started doesnt in my mind mean he is a conscious recruit to what he has pleaded guilty to,and any name calling in his other war experiences are pretty blind,when compared with the age of the strange case of a gun killing some one off duty in Iraq,and the endless discovery of bastardisation in the Australian ranks.
There was a time for the strong, resourceful and never-wrong COW countries to deal with the prisoners in Guantanamo scooped up early in the WOT, but that time was years ago. Like most advantages briefly in the hands of the GOP, the value of effectively and transparently dealing with prisoners has been frittered away.
In Australia at least, the tactic of cow-towing to the every whim of the US administration is going to back-fire rather nastily for the coalition. Guilty in a plea bargain might convince the 3 members of the 101st Keyboarders above, but it’s a decreasingly small club.
If it looks like a tribunal of convenience, and sounds like a tribunal of convenience…
Q; Is the Howard administration the only one to leave a national at the legal hands of another?
In all this lawyerly talk, what about Hicks? Stuff the legalisms, I’m sure he’s tired of sleeping with the light on 24 hours a day. He just wants the nightmare to be over. I don’t think he cares to be a pin up boy of the latte sippers, or the Young Labor Lawyers while he stays rotting chained to the floor for the next 2 years, waiting for the niceties of what the fine print really means are worked out.
The military commission is a joke and this is even obvious to our milko and the ladies at the dry cleaners (they vote too). It can’t even function on its own terms – witness the attempted intimidation of his lawyer Mike Mori and the last-minute dismissal of the civillian mouthpieces. Moe, Larry and Shemp must have been truly desperate, because it looked bad.
After that Hicks twigged that he’s not even going to get first base with regard to even a skerrick of justice, so he pulled the pin. The late night set-up plea bargain was a lay down mazaire and a done deal favour to the Rodent and his mates arranged while the Halliburton Veep dropped by at Kirribilli.
Let’s face it, politically, the Rat can’t bring Hicks home without a guilty tag because he has to satisfy the lynch mob elements among his supporters, and it would look bad that he had insisted all this time for an innocent man to be tortured and kept in solitary confinement by our great and powerful friend. But the oprobrium around the Rodent and the Rodent Party will hang around them like a fart in a lift, rest assured Rat Party urgers.
In the end, Hicks will be back home to sleep in his own bed, go fishing, have a punt on Victoria Park mid-weekers and find a bit of love. Let’s hope he will find time and energy to tell his side of the story – so far we’ve heard it mainly by way of Alexander Downer’s pouty lips (and we don’t know where they’ve been). If Hicksie spoils the Lying Rodent’s return run to the Lodge by talking to the Women’s Weekly, Cleo, Ray Martin, Neil Mitchell, Good Morning Australia, Rove mcMannus, Eddie Maguire, whatevva, it’s the least he can do. I hope he talks and talks, even under wet cement. Go Dave, dig the Lying Rodent’s grave like he dug yours.
Hey Bridie — here’s a post from way back in November 2005. So LP was talking about Hicks before that Alan Ramsey column. Fancy that.
There were other posts throughout 2006 as well. Sure, we didn’t post about it daily, but that’s at least partly because there was nothing new to say on a daily basis.
What’s yer problem, anyway?
I like Sir Casingbroke’s analysis, but i think you’re being optimistic if you think that Hicks will be able to ‘lay it’ on Howard. They’ve staked so much on Hicks, and got it so spetacularly wrong. Surely he’ll be thrown in an Australian dungeon before the media can get so much as an artist’s impression. After all, this remains a political rather than legal process. The executive are after damage limitation.
When Hicks is transported to Australia it will be most interesting what Labor do and say (not much i suspect). They have loudly, and rightly proclaimed that the Commissions are a sham, so they will surely not be able to let someone convicted under them serve his sentence in Australia. But they do approve of the ‘control order’.. hey, perhaps re-trial after 5 years of internment and tortre, so perhaps that’s the future if/when Rudd wins.
Razor:
Whoa! Hold your horses!
I am a supporter of Australian sovereignty and democracy and the Rule-of-Law and of all our traditional rights, duties, protections and obligations ….. but that does not necessarily make me a “Hicks supporter” because you might imagine that I think David Hicks is such a nice chap.
It is that tyrrany is as bad as terrorism; that injustice is still evil no matter who commits it.
Make no mistake, I have a strong opinion of the conduct of David Hicks but I have even stronger opinions about the abuse of power, about our politicians crawling to foreign rulers ….. and about us all being put in great peril by political stupidity and military brutality.
At the time of his capture, he was of mild passing interest only to his Taliban pals and, in the hands of competent non-U.S. interrogators, a potentially valuable source of intelligence. Now, thanks to that bunch of Yank S&M perverts and Hollywood-trained interrygaters, he is useless to us as a source of useful intelligence but he has been made into a valuable propaganda weapon for al-Qaeda and their ilk. Wonder if Howard, Downer and Ruddock will get thank-you cards from Osama bin-Whatsisname for all their unintended but priceless help.
Madness!
of course, it is the principle not the fact that is important. The fact that he was guilty is irrelevant, lets talk about human rights!
On PM this evening Leigh Sales (?) gave a neat summary of what Hicks had been up to. My own feeling is that he hadn’t grown up and was having identity problems. Nevertheless that’s not an excuse.
But as SJ notes above he only pleaded guilty to “providing material support for a terrorist organisation”, which doesn’t make him a convicted terrorist. I understand there was a second more serious charge of providing material support to a specific terrorist act, which he didn’t plead guilty to and which may have been harder to prove.
Someone, SATP I think, mentioned his sun tan and putting on weight. Since when is the latter an indication of health? according to Terry Hicks he was scared to go into the exercise yard because the other inmates saw him as a CIA spy.
His sun tan could have had to do with his cell being open to the sunlight. It seems he grew his hair to provide shade for his face.
Also on PM Prof Don Rothwell commented on the legal issues. We’ll no doubt here more from Hicks’ lawyers after the sentence is handed down, but it seems clear that a bargain was struck and Hicks’ priority was to be anywhere rather than Guantanamo.
er, i think the other more serious charge was attempted murder, which is a crime in most places (even if that place happens to be American-controlled no-mans land on the tip of Cuba). ‘providing material support for a terrorist organisation’ is only a crime under the absurd laws that Bush rushed through before he lost control of Congress. ditto Howard in 2005. in fact, terrorism can never be a crime, because it is a political strategy. murder is a crime, attempted murder is a crime, conspiracy to murder is a crime etc. etc.
Interesting to see as many neocon trolls here as on the U.S. side of cyberspace. “Give ‘im a fair trial and hang ‘im in the morning.” Might as well be said by a pseudo-Texan.
No, the rule of law is really the issue. Bush & the Corruption Gang abdicated that a long time ago.
Guilt or innocence ought to be achieveable in an open court of law. For those who prefer the extra-legal approach, when it is your turn in the barrel, I will laugh.
Anyone willing to give Dubya a lapdance deserves nothing but scorn.
Nine major adminstration scandals and convictions thus far and more to come. This surely is the nadir of American history. Used to be a great place to visit but even I wouldn’t want to go back to live!
Brian, it was not suggested that massive weight gain by Hicks was a sign of “good health”, but that it contrasted with the post-visit reports from his lawyers that he was wasting away.
Likewise for the suntan, also a diametric reversal of his reported pallid complexion resulting from total denial of sunlight.
Lets see, what else has his legal team told us? … oh yeah… that Davo has been tortured.
will, I didn’t make it up. I heard it a number of times today on the ABC, including Mark Colvin on PM
I haven’t been following the issue blow by blow over the last 5 years, so attempted murder may have been in the mix at some stage.
Whatever, steve, I’m not in any position to arbitrate between the various stories. I’m sure it was no fun in Guatanamo. Did you see the film The Road to Guantanamo?
hi brian, it was only at the start of this month that the attempted murder charge was dropped.
steve would rather not see that film i expect. ‘well fed’? ’sun tan’? ha! what a distraction. what a gullible punter steve is.
“The Road to Guantanamo” is by no means an investigative, authoritative or even an authenticated film.
The filmaker took the uncorroborated word of 3 releasees from Camp X-Ray, and turned it into film.
Have not seen the film, so cannot comment on the artistic, cinematographic, etc merits of it.
However, as a representation of life inside Gitmo, it would be less accurate than “Neighbors” is of life inside Melbourne.
I do not think Hicks is a bad egg. But even if he was he is entitled to due process. I find it almost incomprehensible that an Adelaide son would leave the beautiful beaches and start toting a gun for burqa wearing – but there you have it – he was well and truly sucked in to God and for that we have religious conservatives of every hue to thank.
I think it is very unfair to select the part about the bullets to Kashmir from what Terry Hicks read of his son’s letters – I think it was clear that Hicks was a bit deluded and was having second thoughts just prior to him being captured by the Northern Alliance. BTW if Hicks had been Afghani or other non-Westerner it is likely he would have been held and questioned and told not to do it anymore and sent home.
I will look at the reports in more depth in the next few days but I think it is almost inevitable given the ‘process’ that has just occurred that this issue will be decided in the Australian High Court. How can this plea be seen as anything other than duress?
Let’s face it, that horrible US tyrannical system employed Major Mori to do the best he could for Hicks. He knew damn well he had a snowball’s chance in hell of fighting his client’s case on the facts so he did the only thing left for his client. Delay proceedings as much as he could and fight this thing politically, strumming every heart string he possibly could. Naturally the game was up the moment his client realised he was to get his day in court and face up to the cold hard facts. End of game play, but give Mori and the US system their due, Hicks was given his best shot at skinning out of it all by skinning the usual suspects like roos. The echo effect of that campaign here at LP is ample testament to that. So much for two minutes of fame of another useful idiot of the left. Next!
American in Oz:
Start chuckling. It is poetic justice that those who smashed Habeus Corpus for political AND COMMERCIAL? convenience are now at risk of being ruined by the very legal system they perverted and crippled.
I wonder what will become known in Jurisprudence in future as the “Howard Excuse” and the “Ruddock Denial”? Whether David Hicks lives, has an unfortunate accident or is executed ….. the writs will roll ….
PhilipTravers and SirHenryCasingbroke:
Excellent points.
Bridie, you may have missed my post here as well.
http://larvatusprodeo.net/2006/06/30/guantanamo-military-tribunals-illegal-us-supreme-court?/
Obby sez
As distinct from useful idiots pushing Ratty’s barrel of ordure. Next!
For other purveyors of kangaroo courts and star chambers who seem to be flocking here, you might like to consider how and why we evolved away from that and then justify in non-ideological, non-fearmongering terms, why there is a need to return to it?
I do not think Hicks is a bad egg.
IY on what do you base your faith in Hicks? He boasts of his terror tourism to his father. Don’t you believe him?
I think it is very unfair to select the part about the bullets to Kashmir from what Terry Hicks read of his son’s letters
I didn’t select it. Terry Hicks chose to read it out in front of a camera. Also the part about the Jewish conspiracy. Do you think the Indians will apply to extradite Hicks to face charges pertaining to his Kashmir adventures?
I think it was clear that Hicks was a bit deluded
Er yes – at least. Lots of criminals can make that claim.
will be decided in the Australian High Court
As I suggested above – the Americans are not going to give Hicks up without guarantees from Australia that he will not be released prematurely. They will probably also want to know what the alternative government’s view is.
This will be one of those hard decisions that the Left avoids at all costs – either commit to keep Hicks locked up in order to secure his repatriation – or leave him to serve the remainder of his sentence overseas. What to do?
How can this plea be seen as anything other than duress?
Why is this plea any different to other pleas? Criminals make pleas after significant terms of imprisonment. Criminals often claim they are under duress. Criminals lie.
None of which should be taken to indicate that I support the delay in justice to David Hicks. I just find it astonishing that so many on this forum cannot separate the “justice delayed” issue from their need for Hicks to be innocent. Hick’s murderous intent is pretty obvious.
No, not really PeterTB.
http://larvatusprodeo.net/2006/06/30/guantanamo-military-tribunals-illegal-us-supreme-court/#comment-105238
(Professor Robert Goldman Washington College of Law)
War between lawful combatants necessarily includes “murderous intent” so your only argument can be that Hicks was an unlawful combatant and/or guarding a tank at Kandahar while serving with the Taliban was a war crime.
A domestic so called “anti-terrorist” law made in 2006 and applied retrospectively to 2001, to a foreign national in another foreign country, fighting for a de-facto but partly recognised government, does not cut the mustard in international law.
That common article 3 of the Geneva conventions is flouted as well in the sham trial process is what disgusts people everywhere. Innocence or guilt is not the point at all, it’s the process and compliance with international law that is at stake. If we OTOH want to throw all that away then we jump into the same gutter as the real terrorists, as distinct from one stupid young man caught in the wrong place at the wrong time, the subject of this discussion.
And for those who seek comfort and vindication in Hicks’ plea bargain, one of the indictments John Howard may be facing one day, (among so many others too numerous to mention) ie denying Hicks’ rights under Common Article 3 by acts of commission or omission, (as an accessory or otherwise), IS ITSELF a war crime.
Further thoughts on Atticus’s comment:
Under the Australian Constitution the High Court has the power to monitor Australian governments’ compliance with treaties. Presumably the High Court also has the power to declare illegal certain government actions and legislation deemed to be in contravention of treaties.
As far as I know, WorkChoices was never challenged on the basis of non-compliance with any treaty. Rather it was challenged unsuccessfully on the basis of the reach of corporation powers.
No doubt, there have been decisions in which this power of the High Court under S.75 has been defined, refined and hedged.
Is there any accessible literature on this question?
What would prevent Hicks from being successful in taking action against obnoxious provisions of the International Transfer of Prisoners Act 1997 (Cth), especially those which recognise the executive authority of one and one only Head of Sate?
For PeterTB
US Torture Definition Amendments
Hint : google is your friend
search term – America, torture, definition
Katz, you are quite right. The argument about WorkChoices was based on the corporations power. Since it was upheld on that power, there is no need to consider the external affairs power.
The only time compliance with a treaty is relevant is if there is no other basis for Commonwealth legislation. Moreover, this is really only true when the legislation affects purely domestic issues. However, the international transfer of prisoners is quite clearly within the ambit of the external affairs power, regardless of whether a treaty is involved, because it directly involves Australia’s relations with other countries.
The issue is far from resolved politically, although Howard would like this to be so. From the Daily Telegraph this morning:
The Terrorgraph is being very disingenous too, in the stark difference between the hard copy paper and its online edition. The paper paper has a 140 point banner GUILTY! splash with a kicker above that says: “Hicks admits to being a terrorist”. For students of the media, this issue is worth keeping as an example of propaganda masquerading as news. We’ll now see the government going all out to kill this as an electoral issue. The Tele front page is the first shot that may have been over the top, hence the climbdown.
So we bid a fond farewell to the left’s favourite minority of one, Dawood Muhammad and leave Peter Kemp to look forlornly for his beloved Howard with Hair to make some sort of consoling statement for the faithful.
If it’s any consolation, I as a South Australian, will no doubt have to contribute to keep this miserable excuse for an Adelaideian at Yatala, whilst putting up with the usual ‘Free Hicks’ rentacrowd. Bad luck Baxterites in future, as Adelaide’s Yatala moves more logistically conveniently to centre stage for the Hicksian mindsets and their Centrelink budgets. Come to think of it, we could always stick Dawood in with Von Einem and give Bevan back his Viagra
Von Einem who? Here
http://en.wikipedia.org/wiki/Bevan_Spencer_von_Einem
and here
http://www.news.com.au/adelaidenow/story/0,22606,20782302-2682,00.html
Thanks Atticus.
Am I correct to infer, therefore, that under this doctrine a treaty can only extend the powers of the Commonwealth government vis a vis other other levels of government?
In other words, a treaty cannot restrict the powers of the Commonwealth government w/r/t other levels of government.
And perhaps more crucially for individuals, such as David Hicks, a treaty cannot restrict the powers of the Commonwealth government to behave in various discriminatory ways.
Thus, Australian signatures on such instruments as the Universal Declaration of Human Rights aren’t worth the ink expended in forming them, at least in respect to restricting the scope of action of the Commonwealth Government.
Of course both the Oz and US governments have been working towards a sleazy plea bargain for some time now, as I’ve pointed out in several comments threads over the last few months. The risible “attempted murder” charge was an obvious attempt at a bargaining chip.
One reason the Oz government want him convicted of something – anything – is to hobble any defamation suits back here in Australia (several ministers have been unwise enough to make palpably untrue claims about Mr Hicks outside parliament). Whether a conviction on this retropspective offence by a rigged foreign tribunal will be recognised by civil courts in Austrlia is another matter, of course.
You can bet the terms of the control order that will be slapped on him will aim at stopping him talking to journos and pursuing legal compensation rather than stopping him making bombs.
Graham Bell
Not even once has Australia ASKED for Hicks to be handed over.
Methinks the lefties are a bit upset that this issue will be well and truly over come election time in Australia. David Hicks has now pleaded guilty and will detail his activities to the court in the next day or so (let’s see what he has to say). I suspect he will be given about a 10 year sentence, he will return to Australia to serve the additional 5 years or so. His family can visit him regularly (but why they would want to I don’t know – I bet his wife and kids think twice).
The really interesting thing will be to see what David does when he gets out – will he live happily ever after (and stand for the Labor Party in a safe seat) or will he continue his fight against the non Muslim world.
Interesting times …..
Katz
I am quite stunned you did not know this already. One of the more lamentable intrusions into political debate (both national and international) over the past 20 years has been the increasingly shrill invocations of “international law.” Most UN pronouncements, treaties, and Resolutions that are not passed by the Security Council are no more than piss and wind.
If any Australian government ever intends a UN treaty, Resolution, Convention, etc. to be law in Australia they must present it to the parliament and have it enacted as legislation.
Quite right too. Who wants our law-making process subordinated to the abominations that make up the majority of UN membership?
au contraire, BeeF. this is simply the start of another chapter, and i really doubt whether the Libs, or for that matter Labor, have finished with demonising the errant backpacker.
here’s a scenario: Hicks is found guilty by a Commission regime that contravenes international law and which the Labor party does not recognise. He is transported to Australia to serve whatever sentence they cook up for ‘providing blah blah blah’. The Labor party win the next election. Unless they change their minds about the Commissions, they will have to free him (no doubt put him under house arrest or use some other authoritarian step)
Far from being over, i think Hicks will continue to be used as a political football. and the “lefties” (those that support the rule of law) will continue to agitate. Labor better tread carefully cos otherwise they’ll screw it up over Hicks like the Libs have.
Katz, you are quite right. Treaties have no legal effect in Australia until they are received into domestic law by legislation. The High Court in Teoh said that in certain cases citizens could rely on a “legitimate expectation” that ratified treaties would be honoured, but the Commonwealth Government quickly knocked that on the head.
I note, however, that in today’s Financial Review, Laura Tingle writes that “as soon as Hicks comes home, lawyers can commence habeas corpus proceedings to have him released.” I’m not sure on what grounds they would bring those proceedings, and there is nothing more in the article. If anyone can enlighten me, I’d appreciate it.
If Hicks gets a sentence that exceed time already served and is subsequently repatriated to Australia to serve out the balance under the US-Australia agreement he will be given home detention and not do time in Yatala as suggested by the meedja. That’s because the SA government is Labor and it will be sensitive to its constuency. And it is the state that determines the jailing conditions – in Australia there are no federal prisons, the states do the job for the Commonwealth. See also LINK.
I’m glad this saga is coming to some kind of conclusion. Hicks was detained for far too long. However, Hicks was caught in the ME on the wrong side of a war on terrorism. He made that choice. he could have stayed at bhome and ranted, but he opted for involvement as close to the front line as he could get. Caught in the ME! The US possibly saved his life by taking him to Cuba. It was never a civil case with civil laws. This was a captured enemy combatant, but not in a conventional war, but the new terrorist war, which has different rules of engagement, which we are still adapting to.
The US, of course, could have forsaken any kind of interigation process, to disccover how involved he was and what he knew, and handed him over to ME authorities for trial. In which case, where would he be today?
The problem with the length of incarceration is that it has given Hicks a voice and a bagful of sympathy amongst some elements of the Australian public, and, evidently, a cause for somee of the left. He seems to be reasonable articulate judging by comments made in court, so, should he be returned to Australia and released sometime in the near future, one could imagine he will be elevated to frontsman or spokesperson for some group with similar anti-Australian/anti-West political/religous convictions.
And I wonder who will win the race for his ’story’, and how much he and Terry will get out of it! The Australian Government would have been far wiser to have pressed for his return to Australia early on in the piece, as with the British detainees, so that they diminished his now celebrity status.
DD hits the nail on the head. This is a tawdry arse-covering exercise in using menaces to verbal a defendant, parading as a quasi-legal “process”; and shortly to be followed by a legal gag under ASIO legislation.
More to come too – Downer claims “fact statements” or detailed admissions will follow as part of the “process”.
Did someone say “show trial”?
will – an errant backpacker. I don’t think even David Hicks himself wouldn’t cop that description.
Also you say “Hicks is found guilty by a Commission regime that contravenes international law”. Can you direct me to the ‘international law’ that it contravenes (or at least give me some idea of your authority on the matter). It’s incredible that people can make such statements – I didn’t even know that ‘international law’ even existed and I wonder if David Hicks broke any of these so called ‘international laws’
Who wrote them and where are they?
“The Australian Government would have been far wiser to have pressed for his return to Australia early on in the piece, as with the British detainees, so that they diminished his now celebrity status.”
Agreed Facelift.
As is often the case when grandstanding beckons, one can always rely on the govt for un-wise action. They’ve given Hicks a fast track to celebrity, and have made an eloquent statement on their determination and rigour when confronted by the wishes of the US govt against those of an Australian citizen.
“Labor” will release Hicks?
Labour also have a constituency who are actual labourers.
The pro-Hicks screeching is mostly coming from people who whose only contact with labour (the verb) is by reading it in the dictionary.
The actual “labour” contingent of the ALP have little or no sympathy for Hicks.
However, the issue is unlikely to change the blue collar vote. Thus the “Latham’s tourists” set will find the ALP panders to them a little over Hicks, but if the issue is pushed too far, the “tourists” will find that the ALP will not dare risk the “resident” vote by appearing soft (or even screwball) on national security.
Hicks is a political issue and has been for a while, his actual deeds/opinions matter little. Either jailed, or released under a control order, he won’t be allowed to endanger Australians again, not by a party wishing to retain mainstream voters.
David Hicks’s recreational killing of humans is over.
Hi BeeF, I suppose my main authority on the matter is that in June last year the US Supreme Court ruled the first Commission regime (not classifying detainees as POWs) to be illegal – the case of Hamden v Rumsfeld [pdf].
The courts decision was that the Commissions contravened both US and international law – the Uniform Code of Military Justice and Common Article 3 of the Third Geneva Convention.
The new commission regime – which also included laws that allow torture and was rushed through before Bush lost control of Congress – is pretty much the same, if not worse than the old ones. In due course it is also likely to be struck down.
So will – you are relying on the Geneva Convention so I guess I have to assume that you are classifying Hicks as a POW. If so, the Geneva Convetion states – Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
I guess (under your rules) he could have been held for a lot longer than 5 years.
You are also only assuming that the new commission regime will be struck down. If it isn’t, I guess your whole argument falls over.
Steve at the Pub said:
Correct me if I’m wrong, but even those who condemn David Hicks don’t claim that he ever killed anyone.
And what he terms the
is coming from people who have been reluctant to see our government acquiesce in the trampling of due process and basic legal`rights, not from people who are sympathetic to attempts to impose sharia law at the point of a gun and an RPG. Regardless of what David Hicks may or may not have done, the least he deserves a fair open and transparent trial. And I don’t think that he got that. In the end, his coping a plea after 5 years in Gitmo doesn’t really indicate that he is guilty of anything.
Anyway. Perhaps now the whole issue will drop off the radar – until someone else gets banged up and deprivde of their rights. Oh, I forgot. There are hundreds of people still in Hicks’ position.
Cheers…
The conversation between Katz and Atticus is most interesting and some sort of informed summary would be welcome in due course. I too want to know what can happen when Hicks is returned and I would have thought on first principles that the High Court has the constitutional right to consider a case for his immediate release, despite a treaty agreement that apparently privileges US law over our own law (if I have read the above thread right, given all the distractions).
Pity about the usual pack of cowardly bedwetters who have swarmed this blog and others today. Apparently we should be very very afraid at the prospect that Hicks might move in next door to one of us on his return. Are these wingnuts that afraid of one young man with long hair, a suntan and a weight problem? He sounds more like a silly bloody hippy to me. Soooo scary!
Yes grace, wonderful exchange Atticus and Katz, and great stuff Sir Henry.
American lawyer H. Candace Gorman writes in Huffpo:
“So yesterday, after two of his three attorneys were removed from representing him and the prosecuting attorney was attempting to intimidate the third, Hicks asked the military judge for additional counsel to help level the playing field. That request was denied… leveling the playing field is not what the military had in mind. The writing was clear on the glistening red, white and blue walls of the commission hearing room and David Hicks did the only thing that could possibly make sense in this abhorrent proceeding. He pled guilty to something that was not even against the law when he was arrested. Hicks’ only hope is that he will be sent to Australia to serve his sentence and that perhaps, in time, a court in Australia will agree that pleading guilty to a crime that did not exist when he was arrested should be considered a nullity. Only problem is, Australia does not have a constitutional prohibition against ex post facto laws… I wonder if that is how the phrase “kangaroo court” first came to be?”
Article 5 of the Third Geneva Convention:
Hicks’ detention as a POW has been, however, completely legal, especially given the Taliban’s attack on VP Cheney a few weeks ago.
It’s the
kangaroo courtmilitary commission that is a problem under international law.Having said that, I think Hicks should have been released years ago but watched closely by the security police. He did take up arms with a malignant, reactionary group that wants to take society back to the Dark Ages, and cannot be completely trusted.
My understanding of hippies is that they are for love and peace, grace, even the silly ones!
Thanks for that info Atticus.
Grace, the second of Atticus’s links in his previous post is a very clear exposition of the status of the treaty power.
As is his wont, JG gives vent to his customary bombast in his discussion about the influence of treaties on domestic law. What he says is now true (if one overlooks the barrackroom advocacy of a certain position). But it is clear that until 1995 the position that JG espoused was less true. Indeed, in its twilight days the Keating Labor Governmet was moved to pass the Administrative Decisions (Effect of International Instruments) Bill 1995. To quote the above document:
If it had been such an open-and-shut case, then this legislation would have been unnecessary.
However, it would appear that there can now be no reasonable expectation that treaties will have any influence whatsoever on the framing or interpretation of domestic legislation.
Whatever the rights and wrongs of Hicks’ detention, there seems little doubt about his involvement in terrorism.
Yesterday’s ABC PM program got it pretty well right, IMHO.
David Jackman – I can see and read the Geneva Convention but I don’t know where this mystery ‘International Law’ (that people keep quoting) comes from. In fact I don’t believe that the US Courts knocked out the first commissions on that basis at all. From what I read (and it is very complicated and I’m no lawyer), it was a 5:3 decision and it was based on the Geneva Convention and the Uniform Code of Military Justice. No mention of ‘International Law’. There are very compliacted aspects to it such as an ‘amicus brief’ which appears to be contentuous (I know nothing about these but maybe you do).
What really gets me is the glib interpretation of a very complicated judgement as just ‘being against international law’.
There is no such thing and if there is – who wrote it and who abides by it?
BeeF, the Geneva Conventions are International Law.
Following on from the discussion about the effects of International Law on Australian jurisprudence: have anything like the Geneva Conventions ever been passed as domestic law in Australia?
And if not, what is the status of an Australian soldier who refuses to follow an order from a superior officer on the grounds that it contravenes the Geneva Conventions?
When this soldier is court martialed, what is the status of the Geneva Conventions in his case?
Katz – The Geneva Conventions are not ‘International law’. As their name suggests, they are a convention adhered to by those countries that are signatories (and I think a lot of countries aren’t). The original MCs were not knocked out simply because they were in serious breach of the convention, the reasons appear to be long and complicated and if you can fully understand (and interpret) all of the (8) judgements, you are obviously highly educated in matters of law.
I tend to agree that the Geneva Convention should have been the default position, rather than this ‘unlawful combatant’ business. But wouldn’t that have seen Hicks treated as a POW and not released until after the war was over – which it isn’t as of yet.
Just kidding Facelift. Wingnuts are deadly afraid of hippies…
Katz
You could have just said,
Of course, Rob, and this is the difficulty, because when can anyone say that a war on terrorism will end? The Geneva Conventions may have to be revised. Whatever happenss, the rules of engagement have certainly changed.
Katz
And what is “barrackroom advocacy?” It sure sounds cool!
I’m not sure that Sir Henry is right about the SA Govt having the power to give Hicks home detention. The States allow the use of their prisons for the detention of federal prisoners, but that doesn’t mean they can change the nature of the imprisonment. Home detention is unlikely to be on the cards.
Parole is a possibility, though, and a control order might be imposed that constitutes effective home detention. That is a matter for the Commonwealth, though, not the States.
BeeF is certainly wrong about the Geneva Conventions not being international law. The Geneva Conventions form a significant part of international humanitarian law. Even a bilateral treaty is a part of international law, though it is obviously not binding on non-parties. Having been ratified by 194 states — universal ratification — there is a strong argument that they should be considered to have the status of customary law. Customary law is binding on all states, regardless of their ratification status.
I think Rob is right that Hicks should have been granted POW status. However, even as an “unlawful enemy combatant” he is subject to indefinite detention without charge. This is why it is hard to accept the legitimacy of the plea bargaining process — he had the threat of indefinite solitary confinement hanging over him regardless of the outcome of the trial.
Beef
At the risk of getting into a very silly argument: treaties are a source of international law. As you say, they generally only create obligations upon those states which ratify them. However, the convention in issue in this case (Geneva Convention III Relative to the Treatment of Prisoners of War) has probably achieved the status of “customary international law” (ie binding on all nation states).
None of this is particularly relevant, as both the US and Australia have ratified GCIII.
The majority in Hamdan knocked out the first round of Military Commissions b/c they breached the Uniform Code of Military Justice AND article 3 of GCIII.
The enlightened response of the US government is to legislate to provide that a person before the reconstituted (some would say regurgitated) commissions may not invoke the Geneva Conventions as a source of rights.
Land of the not so free…
Atticus
Actually, David Hicks should never have thrown his lot in with the Islamofascists in the first place. May his example provide a sobering warning to all who might consider following his ill-advised steps.
Atticus, I’m not clear about this, but if Hicks was an ‘unlawful combatant’, weren’t the Coalition or the Northern Alliance entitled to just shoot him on the battlefield?
The law seems very messy. The Taleban were the army of the Afghan government of the day, yet they wore no uniforms, etc. The Conventions need to be re-examined with the realities of unconventional and asymmetric warfare in mind.
Purple Navel Lint
There is a very good argument that “enlightened responses” are the luxury of militaries facing “enlightened enemies.”
To wit, I do not think the United States owes its captives a hell of a lot.
Rob
I think it is a little irrelevant to be talking about “law” when we are talking about “war.” Surely, the latter implies the collapse of the former?
No. If he were killed in cold blood it’d be murder as a war crime.
This argument has done countless circuits of the blogosphere and the MSM.
Persons must be declared to be unlawful combatants only by a competent tribunal.
Untlil such a declaration is made captives are to be treated as POWs.
Katz, yes, I’m a bit slow on this one.
But if, as unlawful combatants, they are not entitled to POW status (and this article suggests not — no doubt there are conflicting views), what is supposed to be done with them? Not killed, but not properly captured either.
Perhaps they are held until a competent tribunal adjudicates. But what constitutes a competent tribunal in a case such as that of Hicks?
Also, what happens to them once declared unlawful combatants? Are they subject to execution or imprisonment (i.e. sentenced to a term of formal imprisonment), or do they become POWs as well?
Not stirring, just asking.
Katz
Wrong. The need for a “competent tribunal” only arises if there is confusion as to the captives status. Clearly with Hicks there was not, ergo, no need for “competent tribunal.”
The usual interpretation of the Geneva Conventions is that someone is either a combatant (and thus entitled to POW status) or a civilian (and thus possibly subject to criminal charges). The US began using the term “unlawful combatant” in an effort to create a third category — people who are not entitled to POW status, but who may nonetheless be detained without charge or trial.
Rob
The term “unlawful combatants” isn’t in the convention. The US made it up.
The consequence of being found to be a POW is that you get a number of additional protections. There is a presumption that a person is entitled to POW status (and thus those additional protections) until a competent tribunal determines otherwise (art 5 of GCIII). Hicks was never put through that process.
But even if found not to be a POW, the convention says that a person who is taking no active part in hostilities is entitled to certain basic rights (article 3 of GCIII).
Those include a prohibition on “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”.
They also include a prohibition on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
It was the latter prohibition which was relevant in Hamdan.
Atticus — thanks. Criminal charges under whose jurisdiction, though? In the case of Hicks, should it have been Afghan, US or Australian law?
There does seem to be a problem with the Convention. It seems grounded in the assumption that wars are fought by soldiers in uniform and orderly formations. It seems unable to deal with a case where the ’soldiers’ have neither the rank, command structure, uniforms or accoutrements of a regular military force, and yet are undeniably ‘the enemy’.
“when can anyone say that a war on terrorism will end?”
Well, maybe when the vast majority of Earth’s people no longer consider it acceptable to resort to acts of mass terror in order to achieve their ends.
When did the war on slavery end? Now there’s your classical ‘absurd war against an abstract noun,’ and yet it was won, yes? True, there’s still slavery in various obscured pockets of the globe, but it’s no longer considered an acceptable practice in most of the non-Koranic world. And yet there was a very long, very global war against slavery, not so very long ago, throughout the 19th-cent., fought chiefly by the British Navy, then by the US Navy, and later by the Grand Army of the Republic. Somehow, over the course of decades of fighting, slavery disappeared as a tolerated institution in the serious parts of the world. It did NOT happen without a fight, and yet we now find the precise borders of that fight a li’l difficult to adjudicate. Terror, in fact, may not actually go down that same pathway; but to claim that there are no precedents why it could, is silly.
The legal problems of Mr. Hicks are very much over my head. The only constant I can determine for sure is that he has always had an absolute right to be treated humanely; and that insofar as this right may have been breached, it was and is absolutely shameful. My unscholarly gut feeling is that he is merely a POW; and to my mind, POWs are not “guilty” of anything, they are simply the guys on the other side. The idea that Mr. Hicks can be “guilty” of anything is quite literally nonsense to me. It does not necessarily follow from that, that he should be freed; I simply do not know what the right answer is.
With regard to the broader ramifications of the Guantanamo detainees, though, I think people may be missing an important point. Not an absolute point, to be sure, but one which to my mind has not been given its due. War was initiated against the United States on 9/11/01 using extra-normative means. The aggressors and their accomplices were non-state-based, had no standing in international law, hid behind shadow states in a cowardly and unaccountable fashion, and claimed to act on behalf of an international body which has no actual legal standing. Their means of aggression was quite literally outrageous, and literally illegal, in every way. Furthermore, their philosophy and their training manuals explicitly sought to exploit aspects of Western and US standards of law for their advantage. In other words, they endeavored, through their own actions, to turn Western law into a battleground to their advantage. In short, they sought to weaponize another country’s institutions. It is therefore not in the least surprising that their enemies should have then sought methods to unhorse them on this field. It may well be that the body of seemingly bogus law surrounding Guantanamo and its related phenomena, is in fact a species of para-military weapon, designed to counter-attack a peri-legal enemy in areas that are not so easy for the layman to see. This could strike you in Australia as unpleasant; but then again you haven’t been in quite as many serious knife-fights as we have.
In any case, it’s simply speculation. I’d be interested in seeing whether or not it can withstand a few really hard kicks. Possibly not. And again, back to the original point: whatever else may be the case, Hicks has always deserved proper and humane treatment. Anything short of that must of course be condemned as barbarism.
A very sad outcome for Australia. Howard has deliberately abrograted human rights and has ignored the rule of both international and domestic law.
This is a fundamental and deliberate failing of process and justice.
Hicks’ guilt of otherwise is secondary to this. Hicks’ 5 years of illegal detention (much of it solitary) and a prolonged torture (oops, I mean coercion) make his pleading guilty quite understandable.
Shame on Howard and Downer (I think both should resign over this) and the Liberal party as a whole. And shame on Labor for being so late taking action to get Hicks fair treatment.
Good comment as always, j_p_z.
For mine, I remain to be convinced that Hicks was treated inhumanely or improperly. I’d point out that many detainees have been released from Guantanamo Bay — some of whom went on to commit further acts of terrorism — if the combatant status review tribunal was satisfied they no longer cleaved to jihadist ideology. Apparently, the tribunal was not satisfied in the case of Hicks, and regarded him as a continuing security threat.
Hicks’ detention as a POW has been, however, completely legal, especially given the Taliban’s attack on VP Cheney a few weeks ago.
You mean that taking Hicks into detention five years ago is justified because the Taliban attacked Cheney this year? Ridiculous!
JG is right there I think. I’m still not clear as to what the rules of war allow in such cases. The reading I’ve done on the subject steps carefully around the issue but the implication appears to be that summary execution was not disallowed (during WWII it was accepted that spies apprehended in combat zones were to be summarily shot, for example). But I’m likely to be completely wrong about that.
Rob’s fantasia on the Geneva Conventions;
As you can see, Rob, uniforms aren’t compulsory.
And further:
One of Hicks’s “crimes” was looking after a tank. Was it stipulated anywhere that Hicks was attempting to conceal that tank? If not, Hicks was plainly bearing arms “openly”, in accordance with his status of an “inhabitant …who … spontaneously [took] up arms…”
PNL:
Nevertheless Article 5 does entertain the possibility that beyond all those numerated in Article 4, there may be members of other categories, including a category that could be designated “unlawful combatant”.
Rob, your doubts regarding whether Hicks was treated humanely or not should be quashed by this memo from the FBI, detailing the abuses that agents witnessed.
If that’s what they saw, it really does beg the question, what didn’t they see?
Hey Katz – I don’t disagree that he could have fallen within art 4. We will never know. My point is that, in any event, he was entitled to a number of basic rights under the convention.
John Greenfield:
Well, maybe John, but the international instruments we are talking about were put in place in 1949 in the wake of WWII and the seriously enlightened Nazis.
JG’s reading of Article 5 is a disingenuous falsification. Here is Article 5:
The term “any doubt” means the merest scintilla of doubt. Indeed the Article entitles the detainee or his/her representative (usually the Red Cross) to raise the doubt.
Once the doubt is raised, then there is doubt, which must be settled by a “competent tribunal”.
Enough of this pettifoggery.
Well, let’s see:
“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.
You didn’t bold that last bit, Katz. Also, I don’t think that provision actually applies to the Taleban, who were, in effect, the armed forces of the state of Afghanistan, and still less to Hicks, who, from the information available, did not spontaneously take up arms against an invader, and was not an inhabitant of Afghanistan.
Which brings us back to:
GC Art 4 states:
“2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.”
Again, to what extent other than (a) — and from the charges against him even that seems disputable — are these provisions true of Hicks?
Apologies for pettifogging.
Oh dear, j_p_z. Just when I was beginning to expect better of you.
Now look here.
The war on slavery ended when jurisdictions took legislation legalising slavery off their statute books, when the ownership of slaves became illegal.
Did that mean that every slave was thereby actually released? Probably not.
Did that mean that anyone caught holding slaves illegally was prosecuted? Probably.
Can you point to a jurisdiction that legalises terror? (Well actually, I can. Most nation states train and employ agents of state terror). But no state legalises 9/11-style terror.
Therefore, in the absence of forcing regimes to pass and to police sanctions against terrorist activities, all that is left for the COWs of this world is to go off tilting at abstract noun windmills.
Is being quixotic a good thing?
1. I repeat, Hicks was bearing a tank. How much more open can you be??
2.If the following is true, then Hicks is even more eligible for POW status:
Thanks for strengthening the argument against Hicks falling outside the aegis of POW status, Rob.
Katz, either you’re confused, or I am. I don’t think your argument under Art 6 holds water (in relation to Hicks) because he did not spontaneously take up arms against an invader, and because he was not an inhabitant of Afghanistan. Obviously the framers of the GC had in mind the French or Norwegian resistance movements, for example.
My point about Art 4 (which prescribe the circumstances in which in irregular or resistance force can be eligible for POW status) was that Hicks would seem not to fall within them. As you will note, it is an a b c d thing, not c minus all the others.
I’m not arguing Hicks should not have been treated as a POW. Up the thread, I argued that he should have been. I was simply trying to find out what was permissible if someone who clearly fitted the bill of an illegal combatant was encountered on the battlefield.
Enough of this obfuscation
The evidence against Hicks is that he was trained as combat soldier and then took up arms as a true believer in a cause. There is absolutely no evidence that he was a terrorist, per se, despite of the lying front page splash in the Telegraph.
There are plenty of instances of Australians taking up arms for causes overseas, most of them sanctioned by the government – Boer War, WW1, WW2 in Europe, Korea, Vietnam, Afganistan, Iraq (sort of); but some not sanctioned.
Here is a non-exhaustive list, not necessarily in chronological order of conflicts unsanctioned:
1. Australians fought on behalf of the apartheid regime of Republic of South Africa in its bush war in the 1970s; indeed this precipitated the enactment of Foreign Incursions and Recruitment Act, 1978 – this is precisely the law that those professional liars Phil Ruddock and John Howard pretended did not exist in Australia and that is why Hicks had to be held in Guantanamo;
2. Australians fought in Israel (for Israel) in 1956, 1967, 1973, 1984, 1994;
3. Australians took part in the Karen insurgency in Burma;
4. Kosovo, not just Hicks;
5. Afghanistan, fighting with the mujahadeen against the Soviets;
6. Spain, on the Republican side, 1936
7. As mercenaries in myriad of dirty wars of the 20th century.
Not one of them was given the treatment from his own government that Hicks has received.
There is no evidence, none, zilch, zero, nada, nor even through coercion and via his own admissions nor through hearsay, that he committed terrorist acts, as defined by even the loosest definition of terrorism.
One does not have to agree with Hicks’ position – coming to the aid of a murderous, theocratic, arm-chopping nutcase sect like the Taliban, or taking up arms to defend their regime – to see that he WAS NOT A TERRORIST and that he was being fitted up to be one (as per the Telegraph front page). If there was evidence that he was a terrorist the military commission would have been very happy to lead it up front. But, here we are, bubkes.
It is hard to argue with this definition of terrorism:
The blurring of the lines lies in the fact that Hicks seemed to have attended training camps run by people who do support and are themselves active terrorists.
As a post script: I might add that a celebrated terrorist, by definition, who fought in a foreign war was Harry Breaker Morant. He was tried by a military tribunal and executed for terrorism on civilians.
ATTICUS : Sir Henry may indeed be right about the sentencing arrangements between the Commonwealth and the States. As Mr M. Rozenes indicates here this is a very tangled situation, especially in sentences of less than 10 years. Thus it may be that the Australian legal eagles whsipering in the ear of Gitmo “judges” may indeed ask for a sentence of 10 years and a day as a head sentence and then commute some of it and let SA put an anklet on Hicks for the balance.
Bloody South Australians
Good question Rob,
I’d infer from the GCs in totality that any belligerent capturing someone on or around the field of battle is compelled to treat them as POWs. That is, he should pass them up the chain of command for internment and a determination of status by a “competent tribunal”.
As an diverting counterfactual, let us say that the Good Guys captured an entire platoon of persons marching under the banner and wearing the uniform of “The First Brigade of Illegal Combatants”. Clearly, they have identified themselves as illegal combatants. Nevertheless, they are wearing identificble uniforms and do seem to be subject to some form of military discipline.
I think you’d agree that it would be illegal to treat these characters as illegal combatants. They’d have to be treated as POWs.
Case closed.
Let’s make a list. whoaa.
Katz, the Geneva conventions are regarded these days as customary international law, confirmed if my memory is correct in Hamdan v Rumsfeld however under the Treaty of Rome which set up the ICC, it’s provisions were incorporated into Oz domestic law under the Criminal Code Act 1995 Cth
http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html
Scroll about halfway down to
Chapter 8 — Offences against humanity and related offences
Division 268 — Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
…
268.2 Outline of offences
(1) Subdivision B creates offences each of which is called genocide .
(2) Subdivision C creates offences each of which is called a crime against humanity .
(3) Subdivisions D, E, F, G and H create offences each of which is called a war crime .
In many ways it is a domestic codification of much if not most of the Geneva conventions, although I haven’t personally done a point by point comparison.
Interestingly 268.21 Crime against humanity–enforced disappearance of persons
Like what the CIA does.
The guts of it appear to be here:
Look out Ratty, accessories are equally liable.
Sir Henry, Hicks pleaded guilty to the charge of providing material support for terrorism, not to a terrorist act, so I don’t know what you’re going on about. As far as I can see, the charge (and the plea) relied on Hicks’ association with Al Qaeda, including meeting with bin Laden, and his undergoing terrorist training in their camps.
Katz: amusing. But suppose they weren’t wearing uniforms obligingly marked, but were disguised as a group of little old ladies?
Ah, the pretend lawyer is back. Welcome, Peter.
Now don’t go all bitchy on me Pterosaur. I’m trying to help you here.
You made the statement “Oh, I forgot, Bushco. have changed the definitions of torture” and I asked you for evidence.
You provided the link which doesnt support your assertion at all. In fact, not only does the link fail to establish that the Americans have changed the definitions of torture, it actually references the Clinton administration – rather than either of the Bush administrations: “These provide a very convenient loophole for certain forms of torture and state terrorism. The Clinton Administration’s justification for these “understandings” is posted in Part II of the Report, from which I quote here………”
So Pterosaur, do you have any actual evidence for your original assertion? Or were you just making it up?
I am referring to the softening up campaign by the Telegraph to blur the lines, Rob. Please note also that was not the set of original charges but what ended up as a plea bargain of last resort. But even as “material support”, attending a training camp seems an odd charge. Perhaps the Yanks should have looked to the old NSW Act of Consorting.
Sir Henry, check out paragraph 22 and following of the linked Notification of Charges against Hicks. This is what he pleaded guilty to.
PeterTB “Hick’s murderous intent is pretty obvious.”
Peter Kemp “No, not really PeterTB.”
Peter Kemp (same post) “War between lawful combatants necessarily includes “murderous intentâ€? so your only argument can be…..
As I said – Hick’s murderous intent is pretty obvious.
quod erat demonstrandum
Rob the RAAF has this
http://72.14.253.104/search?q=cache:88nUMd3AEYMJ:www.defence.gov.au/raaf/airpower/html/publications/doctrine/aap1003/highres/Ch11.pdf LOAC disguised combatants&hl=en&ct=clnk&cd=4&gl=au&client=firefox-a
Disguising as old ladies would qualify as perfidy, but as we know this was far from the case. The US in particular had no problems recognising their enemy. (And bombed all others
as well, just to be sure, like the whole male population who carry AK47s like we pack mobile phones)
LOAC=Laws on Armed Conflict.
Thanks for that info Peter.
This bit is very interesting:
Hicks’s legal representatives in Australia may argue:
1. It has still to be determined whether or not Hicks is a POW, his case having not been examined by a competent tribunal. David Hicks is therefore ipso facto a protected person under the Geneva Conventions.
2. Either knowingly or recklessly, the Australian authorities have inflicted “severe physical or mental pain or suffering” on Hicks. To wit, they have incarcerated him as a war criminal when in fact his default status is POW.
3. This “severe physical or mental pain or suffering” has been perpetrated “in the context of, and is associated with, an international armed conflict”, to wit, the so-called Global War on Terror.
Therefore, it may be argued that the Australian authorities (John howrd and Phillip Ruddock) have committed a war crime, on David Hicks and all those persons who have obeyed illegal orders to that effect are accessories.
Sorry, try the link again (pdf)
http://www.defence.gov.au/raaf/airpower/html/publications/doctrine/aap1003/highres/Ch11.pdf
It is unwise to rely on the original charge sheet to determine what Hicks has pleaded to. The lawyers are still nutting out exactly which of the alleged facts he will admit.
That’s really going to be an electoral winner, Katz. Hicks goes down for providing material support for terrorism, and Howard goes down as a war criminal for helping him do it. Don’t think it will run, somehow.
True, Atticus, but it’s all we have at the moment.
No Rob, you misunderstand the argument.
Howard’s war crime is the pain and suffereing he imposes on Hicks by virtue of Howard’s willful or reckless misidentification of Hicks as an illegal combatant.
The point is that Hicks is still a POW because he has not faced a competent tribunal.
However, Howard could get out of this legal fix by establishing his own competent tribunal to determine Hicks’s precise status under the GCs.
I’d love to see Ratty try!
Certainly be an entertaining argument if it ever gets to court.
Of course, it would all turn on whether Hicks was a protected person under Article 4. I think that’s legally questionable, although it would have been far preferable (morally) if he had been. But then again, if he had, he’d be in custody for a good many years to come.
Guess we have to wait and see what the sentence is determined to be.
Do they still shit in a bucket in Yatala?
Well if they don’t when did they put the plumbing in that nineteenth century establishment?
No, PeterTB, I didn’t make it up
TRY THIS
Exactly Katz
Indeed Rob, but afforded in the case of a civilised nation the privileges of controlling with others their internal administration, access to a canteen, paid work if consented to, Red Cross food parcels, parole with guards for a walk around the neighbourhood, regular mail etc etc and basically decent humanitarian treatment that we for example offered our Italian POW’s.
He could have played Hogan’s hero’s with Sergeant Sixpack???
Well, you lead the case for the complainant in the relevant jurisdiction, Peter. And we’ll just laugh.
Well, I’ll try again
PeterTB – I didn’t make anything up
Antiterrorism Bill on Detainees, Geneva Conventions – Rushing Off …
Prior posting was spaminated.
2 comments spaminated
Maybe because of link ?
Anyway, for PeterTB
No, I didn’t make anything up – refer to
NY Times editorial Published: September 28, 2006
or, search in Google on
America, torture, definition
Search result No. 9
Yeah well Rob, with Howard or minions on the stand, it would be difficult as his ilk have their incredible memory lapses and like Manuel from Barcelona and Sergeant Schultz:
or (sounds better in German)
“….or (sounds better in German)”
The German quote means “orders are orders”, Peter. But you knew that.
Yes Rob, a consistent and pathetic plea at the Nurenberg trials as I recall, treated with the contempt such statements deserved.
I wonder what the American judge Francis Biddle would have said of the current lot of criminals if they were in the dock for crimes of waging aggressive war.
What, like Hicks, al Qaeda and such? I’m sure he’d say a mouthful.
Seeing that Rob is resorting to personal attacks on my professional reputation (again) here’s some mud in return: what he thinks of international law relating to summary executions, (presumably he still holds to it.)
http://larvatusprodeo.net/2006/04/28/vietnam-revisionism-wars-revisited/#comment-71972
Atticus,
How would you read s43 against the Chief Justice’s statement in PlaintiffS157 v Commonwealth:
It seems to me that it’s at least arguable that the s43 does not override our signature and ratification of various human rights conventions, or the jus cogens norm against torture. As Lord Hoffman said:
Lord Hoffman’s cost is probably not something that Howard would like to pay right now.
Are you really sure you really want to link to that thread, Peter?
Are you sure Rob you want to derail this thread?
I for one don’t, let’s leave the ad hominems and stick to the argument shall we?
I didn’t link to the other thread; you did. But I apologise for the (singular) ad hominem.
Accepted, and I apologise for (singular) linking and temporarily derailing.
Can I ask that Rob and Peter keep their squabbling off this thread? It was a really interesting discussion but now it’s become pointless bickering and crossed comments. Not much fun to read.
I think what Alan is suggesting is that the High Court can (and will?) read down the privative clause in the International Transfer of Prisoners Act to allow Hicks to seek his release when he arrives in Australia. That’s certainly possible, but I think it’s unlikely that a majority of the High Court would so decide. This is because Hicks’ right to appeal is preserved, so long as he does so in the US. Furthermore, as Katz pointed out, Parliament expressly endorsed the Military Commission process by amending the Act, so any challenge to the justice of that process has an additional hurdle to get over. It’s possible, but highly unlikely. As I said above, I’d love to hear the legal argument.
Sorry, Atticus, you’re quite right. And I started it , so it’s down to me.
Retires crestfallen.
That would be an improvement for Hicks. According to the FBI…
Rob,
You wilfully misunderstood the point that I made more than once. I will rephrase it, slowly:
The Telegraph led with a headline this morning which screamed TERRORIST. I was saying that the Telegraph, and no doubt The Australian, two of the rabidly pro-current neocon American administration organs, which like that other organ of Murdoch propaganda machine, the Fox Network, will now try to blur the line between terrorism and to what Hicks eventually pled guilty.
If you can’t follow that argument and possibly engage with it, don’t say anything because it makes you appear to be a dolt – which of course you are not.
Labelling Hicks as a terrorist is a ploy to get Hicks convicted over and over in the court of public opinion in Australia and thus save Howard’s bacon at the next election.
You can see the dead hand of Murdoch in Telegraph’s bloodthirsty editorials and its columnists in the lead up to this show-trial denouement. Take one Piers Akerman piece headlined: Damning Dossier on terrorist Hicks . And this was on March 10.
And here is the Tele again for tomorrow:
Here it is again: “self-confessed terrorist”. This is Moscow 1937, all over again, with David Penberthy as Vyshinsky. You yourself must see what a farce this is Rob, surely, as you strut the blog stage like some latter-day Solon.
Atticus: re our earlier discussion, from News Ltd site today:
And Amnesty Phil is “set to block self-confessed terrorist David Hicks from making millions of dollars selling his story”. How about that, Bloggin’ Lawyers!
I am the proprietor and commissioning editor of Master Bator Press Ltd based in Ulan Bator. I make a deal with David Hicks’ father mr Terrence Hicks to write a book based on his conversations with his son. The agreed fee will go to a numbered Swiss account. Hmmmm?
I daresay I’m naive, Sir Henry, but I don’t think a couple of newspaper stories are likely to play heavily in the court of legal opinion when it comes to the question of what it is that Hicks has (on the face of it) confessed to. And is there anything sinister in blocking Hicks from selling his story? There is legislation in place, as I understand it, to prevent criminals profiting from their crimes in this way. As someone said somewhere above, Schapelle Corby is finding this out the hard way.
I think the final word on this should go to our learned mate who sums the whole matter up so succinctly (compliments of AAP)-
‘Mr Rudd said there were at least three or four stages of the legal process to go before the sentence was handed down.
“One is the stipulation of the facts. The second, the determination of any sentence and if it’s any custodial sentence,� Mr Rudd told ABC Radio.
“Third, the question of appeal rights which exist under the relevant US statute and before the US Supreme Court, and finally the whole question of if a custodial sentence is imposed and the operation of the International Prisoner Transfer Act as it operates under Australian domestic law.
“We are, therefore, now in the midst of this quite complex legal process and for those sorts of reasons we ourselves are reluctant to comment,� he said.’
Says it all really.
John Greenfield , you said
You noticed that interesting omission too. ……
Everyone:
My questions [way back at 6:57pm 27th March] about treason remain.
Any questions about David Hicks’ guilt or innocence can be investigated by OUR competent, experienced police and, if necessary, determined by OUR competent, experienced courts. We don’t need, and we don’t want, any show trials or any other monkey-business cobbled together for the benefit of any American surrender-monkeys.
The Australian news media are forcing the Hicks case through their good-old standby, the Ayer’s Rock Dingo template ….. but these days the public are a bit more media savvy and it’s only the really gullible mugs who still swallow their guilty-by-news-media twaddle.
Atticus, you said
My oath! [Which is why a certain federal Attorney-General's excuse for not allowing legislation to outlaw anti-veteran discrimination was so risible
]
While that is correct I would add that international law does have an influence , despite the negating effect of legislation following Teoh:
Kirby would drink to that.
You are indeed naive, Rob, and what’s more, you do not take care to read the posts you reply to.
Court of public opinion, PUBLIC opinion. This not a “court” as such but is a phrase denoting the political climate that has already forced the prime monster’s hand to demand a show trial such that it was. And newspapers like the Telegraph are part of the suite of propaganda devices to spin the message for the government. The government itself can’t say these things because it would open itself to ridicule but rags like the Tele can scream their lungs out.
Point 2. I did not say there was anything SINISTER about Hicks selling his story but parodied the pointless posturing of Ruddock because ultimately he will not be able to stop Hicks selling his story, as per my boratesque scenario. It’s all in the wrist action, Rob.
On second thoughts-
‘Dennis Sparrow, the father of Hicks former partner, Jodie, yesterday declared Hicks had forfeited his right to act as a father to Bonnie,14 and Terry, 12. ( front page todays Adelaide Advertiser)
“He won’t see them again, over my dead body. I mean it,”he said at his unno Para home yesterday.’
“He pissed off from the kids when they were young fellas, so he has given up his right as a father.”
…………
‘Mr Sparrow was outraged when he heard Hicks, 31 was expected to return to Adelaide to serve out his sentence.
“I don’t reckon he should be brought back to Adelaide. I’d like to see him housed in Queensland or Kosovo or America. I don’t care, just not here,” he said.
“He’d want to watch his arse when he’s out and causing trouble- and that’s a promise.”
Well the left have had their beloved Terry Hicks but we have our standard bearer in Dennis Sparrow now. Let the battle of the real fathers and grandfathers begin eh? A week’s a long time in politics as they say.
Peter Kemp
I agree with you and her Honour. I look at “international law” as instruments for diplomacy and occasional opportunistic exploitation my member states for domestic political gain. The classic in this genre was Hawkie successfully invoking a treaty to stop the Tasmanian state government in the Franklin Dam case.
The West Wingnuts: Episode 26, “The Legacy”
Meanwhile, the Command Bunker in an undisclosed location in the Oval Office [behind the couch].
Bush: My historic mission! My legacy. It’s all gone to the shit.
Condoleezza Rice: No Mr President. It’s not your fault. You’re not to blame. It’s Rumsfeld’s fault. You had great ideas. A great vision! But Rummy stuffed it.
Bush: But the Congress. They’ve cut off funds for Operation Iraqi Freedom. And the people think I’m a laughing stock. I’ve spent all my political capital. Condi, I’m depressed. You know what they’re saying? That I’m the Worst.Prez.Eva. What do you have to say to that?
CR: Well, at least you stuck to your convictions…
Cheney bursts through the door.
Cheney: Mr Preznit! Mr Preznit! Great news! Hicks is guilty! We’ve nailed the bastard!
Bush: Hicks! That’s great. That’s just great! I feel a lot better. Dick. Condi. Ya know what? Maybe my historic mission and my legacy have been preserved after all.
Cheney and CR: Yes Mr Preznit. Of course, Mr Preznit.
Unless, of course, they are Chapter 7 Resolutions of the Security, which are the REAL deal when it comes to law. Y’all might be pleased to know that Israel has never had a Chapter 7 Resolution passed against it.
More like Bush saying- ‘David and Terry Hicks who?’ eh Katz? Dontcha just love the smell of burning antiheros in the morning?
Sir Henry, that’s precisely what I said. The Commonwealth Government (not the States) will “have a say on the conditions” of imprisonment — but that must be signed off by the US before he arrives. Once he’s here, he’ll have to rely on parole and good behaviour and the usual things to get out promptly. Unless he receives a pardon, which is highly unlikely, not least because it would piss off the US and jeapardise any future prisoner transfers.
No, no Obby.
Bush said, “Iraq and Iran where?”
But you were close.
Atticus, re: the last part of your contribution – it depends on who is the actual US Administration.
Also, Hicks will be released without any conditions if his conviction is overturned in the US Supreme Court if it finds that the military commission is illegal or its (or Hicks’) sentencing contravened the US Constitution. This is a legal minefield yet to be traversed.
As regards the condirtions of Hicks’ imprisonment, because there are no federal prisons in Australia, if the sentence is under 10 years, it is seems that the states have total control over the conditions of imprisonment. Such conditions include which prison, classification of prisoner: max, med or minimum or low level camp, work release or indeed home detention. Home detention is regarded as legal prison and the same as prison and I do not think the Commonwealth can veto that decision once Hicks has been handed over to the SA corerective department.
In thec 1970s, a conscientious objector to the Vietnam War, Geoff Mullen was sentenced by a federal magistrate under federal legislation to a term of imprisonment. He was subsequently a hot potato politically but it was the state government that kept shifting him around the prison system around NSW, because his imprisonment was disruptive (demos outside prison walls, etc. etc.). The federal government made some noises but said explicitly that Geoff’s imprinsonment was out of its hands (as it wrung them sorrowfully) when geoff was being shanghaied all over the state. When Geoff was beaten up in one stir, it was the NSW government that wore the shit rain.
I think we are very much in agreement, Sir Henry, but I am more pessimistic about the likelihood of Hicks’ early release.
Home detention schemes vary from State to State. Assuming that Hicks is imprisoned in South Australia (which is reasonable given his family connections there), it would be governed by Part 6A of the Correctional Services Act 1982. This means that any release would have to be within one year before the end of the non-parole period. Whether this is available will of course depend on whether a non-parole period is fixed, and its duration.
A Tale of three misfits
Hicks Kills 0
Bin Laden Kills 30,000?
George Bush Kills 600,000
Which shows that bad policy is far more dangerous than overt acts of war.
Brings up Mao greatest mass murder ever. Did it with a stupid policy called the Great Leap Foward.
Why are we so tied to the USArians?
Well, Atticus, the Herald today (front page) quoting “government sources” says that Hicks faces about a year in jail.
There are two matters that arise out of this:
1. The 12-18 months was negotiated with the Americans by Howard to keep Hicks banged up until after the federal election and hopefully incommunicado to the media thus preventing him from telling his side of the story, or, indeed, revealing anything that could be damaging to Ratty facing an oversensitised-to-this-issue electorate. Ratty knows this because the Libs have done some private polling and it looks ugly.
2. Mike Rann, heading a Labor government, will probably want to frustrate Howard in the above regard and will use all the powers vested in him to allow Hicks access to the media, parole him before the federal poll, or at least, offer him home detention, during which he may be visited by the media.
As part of my continuing Goebbelsiana watch, I read with interest Miranda Devine’s column today. It is obvious that she and Piers Akerman plus Tele’s news editor have been issued with identical orders. Even the phraseology is identical – aren’t they allowed to stray from the script? Do they get an email from HQ? A mobile phone message? Or do they get summoned to a secret briefing in the basement at Kirribilli?
Here is the evil spawn, in all her black glory:
Finally, some details about Hicks’s actual legal strategy! Apparently the real story is here:
I will see if I can find out more about this agreement.
I know this was quite a way upthread, but I’ve only just come out from under my head-cold long enough to face this monster thread:
Oh ye of little research skills!
Seeing as how apparently the function of the box marked “Search” in the masthead area has escaped you, as has the concept that perhaps the category”David Hicks” is a recent addition even though posts on David Hicks have not been a recent addition, having previously been marked as “Politics” or perhaps “Foreign Policy”, I have actually gone through the archives and added posts discussing Hicks to the “Hicks” category tag, just to save you some typing and scrolling time, because I’m generous like that.
The earliest post on Hicks is from May 2005, comparing the public concern over him to the conern over Schapelle Corby. There’s been a steady drip since then until the recent cascade. I didn’t bother adding posts to the category that only mentioned Hicks glancingly.
Happy now?
I just want to pick up on Sir Henry’s points about federal prisoners in state jails. Yes, states do set the conditions of these prisoners, but from the evidence of remand prisoners charged under Australia’s anti-terrorism laws, it seems there is quite a bit of communication between state and federal politicians regarding the conditions (whether to use shackles, strip searches, orange jumpsuits, other humiliating tactics).
I just don’t believe that the state justice departments come up with this stuff autonomously. Corrections Victoria have clearly modeled their Barwon regime on Guantanamo – a kind of Guantanamo lite – in order to influence public perceptions (that all important court of public opinion again). But is it really the Bracks government who have thought up these things themselves. That reminds me of the line of argument after the release of some of the Abu Ghraib photos – that the prison officers were ‘bad apples’, and that they were not taught the meticulous skills of psychological and physical abuse from on high (the teacher’s name was Rumsfeld i believe, from the school of CIA torture).
The language Hicks’s lawyers refer to is part of the Convention on the Transfer of Sentenced Prisoners. Here is the relevant part:
It seems that this is intended to allow a manifestly excessive sentence to be reduced, or (for instance) a death sentence to be commuted to imprisonment.
It is not clear to me how this would allow a challenge to Hicks’s sentence not on the basis that it is excessive, but on the basis that it was imposed by the Military Commission. My scepticism is due to the fact that the Australian Parliament has expressly endorsed the Military Commission process in the context of the prisoner transfer legislation.
Here is Mr Walters, in the article I linked to previously:
The problem is that the legislation now deems the Military Commissions to be US Courts. This, it seems to me, is a pretty big hurdle to jump.
These appear to be the crucial grounds:
But the International Transfer of Prisoners Act 1997 (as amended in 2004) says this:
Now, it is true that when this amendment was enacted in 2004, it referred to a Military Commission regime that has since been abolished. Its current replacement was not in existence when this amendment became law.
Thus it may be argued that this legislation is in effect hypothetical legislation, laying down a process for institutions that did not yet exist in 2004.
However, notice that the amendment refers not to the Military Commission, but rather to a Military Commission.
The question is whether this represents a denial of natural justice. For if the legislation were meant to encompass any Military Commission which may as some future time be established in the United States, then in the event of a fascist or communist takeover of the United States, the Commonwealth of Australia would be compelled to respect the Star Chamber of some repressive regime or other.
Therefore, it behoves a judge to decide whether or not any new Military Commission established in the US after passage of the 2004 amendment represents a court of justice acceptable to the high standards of Australian justice.
Katz: “Oh dear, j_p_z. Just when I was beginning to expect better of you. Now look here. The war on slavery ended when jurisdictions took legislation legalising slavery off their statute books, when the ownership of slaves became illegal.”
This is incorrect in so many different ways, it’s practically cosmic in its stupidity; one scarcely knows where to begin. But since it’s not the topic of the thread, I won’t begin. As the Silver Surfer woulda said, To me, my board!
Not entirely sure what Walters said, but the constitutional argument might go like this:
If (as seems likely) he serves some sort of sentence here, it will be detention authorised by the A-G under s42 of the Act.
There is a respectable argument that such detention would be inconsistent with Ch III of the Constitution. Although a little unclear in the High Court at the moment, it is generally accepted that criminal punishment (at a federal level) can only be administered by a Ch III court – ie not the AG and certainly not by a foreign kangaroo (US marsupial equivalent? dunno) Military Commission.
There are recognised exceptions to that principle, but none of them appear relevant.
If that is right, the relevant bits of the Act would be invalid and any attempt to imprison him here would be unlawful.
Thanks, PNL.
The difficulty with that argument, as I see it, is that no foreign Court is a Court under our Constitution. It is surely up to the US to decide what is a legitimate Court under their system. They appear to have done that with the Military Commission Act, and our legislature appears to have endorsed that decision.
I suppose what I am trying to say is that while I can see how the High Court could release Hicks on the basis of the illegitimacy of the Military Commission process, I can see a whole pile of obstacles in the way. I am not optimistic that a majority of the Court would find their way past those obstacles.
Spot on Atticus, which is why there have been rumblings about the validity of the Act since it was passed (ie enforcing a sentence passed by any foreign court/tribunal may be a problem).
The High Court has, however, invented a series of exceptions allowing executive detention. Implementation of sentence by foreign court may be a further (as yet “undiscovered”) exception. If so, a distinction might still be drawn between regular foreign courts and a tribunal of happy go lucky colonels.
.
I’d have liked to have seen a tribunal of Christopher Pyne and his clones conducting the trial. It would have been finished in two minutes with Hicks cleared, and his reputation untarnished!
I see — what you’re saying is that the entire International Transfer of Prisoners Act is on shaky ground?
Detention under the Act is clearly executive detention, as it’s the A-G who is responsible for it. But at the same time, it may also be detention as the result of a legitimate trial by a legitimate court. So such prisoners have a foot in each camp, so to speak.
Given that the Transfer of International Prisoners Convention (which seems to form the template for the Act) has been quite widely ratified by many countries, and there are other bilateral treaties in similar terms, surely that gives some support for the view that the decisions of foreign courts should be recognised here?
What it then comes down to, as you say, is a case-by-case analysis of the constitutional basis of and procedures followed by the foreign court or Military Commission. That would, of course, be an unmitigated political disaster for the Howard Government if the case was heard prior to the election. It would also be interesting if the High Court said the Military Commissions were illegitimate, but the US Supreme Court upheld them.
In the wake of Al-Kateb, I’m not holding out much hope that Hicks will get up on a habeas corpus claim.
The Attorney General can commute and/or release Hicks on licence pretty much soon after Hick’s arrival in Australia. It can be for a multitude of reasons one of them being Hicks’s mental condition, see INTERNATIONAL TRANSFER OF PRISONERS ACT 1997 – SECT 44 – 2 (b).
Any number of qualified authorities will attest to the fact that anyone held in solitary confinement for lengthy periods of time plus torture and sleep deprivation will not be the full quid.
Again, because Hicks will be held in a SA prison, I am sure the SA government will do everything in its power to facilitate full psychiatric assessment of Hicks.
tigtog:
Actually, the first of the posts you have filed under David Hicks that elicits any comment whatsoever about David Hicks was in November 2005.
The subsequent posts mentioned the ALP just once, and the Greens not once. That former was this comment:
Joe2 – 8/2/07
Why the total silence, I wonder, on the issue of the ALP’s stance on Hicks on LP. And no mention of the stance of the Greens.
As I noted above:
Shorter Bridie 1: I reserve to myself the inalienable irrevocable unarguable right to declare what are crucial matters.
Shorter Bridie 2: When the Senate is being firebombed by Caligula, go and punch out your Uncle Claudius for sleeping.
Bridie appears to need some help with that constricting knickers-twist:
Observa:
You’ve missed the point.
David Hicks could well be the worst mongrel bastard in the whole wide world for all I know ….. and he may well have commited all sorts of monsterous crimes, even ones that have not yet been invented.
However, until such time as he has been thoroughly investigated by competent and impartial authority and then arraigned before a properly established court which has accessed to reliable, unmodified, verifiable and complete evidence and then judged by those actually competent to do so [not merely deemed to be competent] ….. we have no choice but to allow him the presumption of innocence and to allow him to defend himself against any and all charges.
Over the centuries, thousands and thousands of good people laid down their lives defending this cornerstone of our civilization against tyrant and terrorist alike!!! We will not tolerate having our basic rights, obligations, responsibilities and privledges smashed at the whim of dodgy politicians and incompetent military personnel.
Bridie – get your own fucking blog and show us how it should be done.
Anna Winter
Grow a brain and some manners and make THIS blog work. Kapiche, luvvie? I know you won’t publish this. That’s OK; it just confirms everything about you and your ilk’s “politics,” luvvie.
Now there’s the actual genuine voice of Larvatus Prodeo.
I have no idea why people come here just to bitch about how crap LP is. (Well actually I do…)
The “actual genuine voice” of LP is a lot more patient and kind than I am, but clearly that isn’t enough to get through to some people.
Bridie, clearly you feel strongly about David Hicks. So why don’t you make some kind of substantial contribution to the discussion about David Hicks that is happening here right now, instead of complaining that there isn’t enough of it?
I understand your concern, Rob, but I don’t agree! I never heard Mark deal with things this gutterish way! I prefer tigtog’s approach!
Good to see you again FL!
Go me!
How’s that petition that you allegedly started about FGM, Rob?
The “genuine voice” of Rob is sour conservatism and late night attention seeking trolling…
Just sayin…
Not that I would condemn that in every case.
Oh, Lordy, no.
Only when it’s in a tone of sour disillusionment.
back OT.
thanks Atticus, Katz and Sir Henry for yer work.
in relation to Hicks’s detention when he arrives back in OZ.
As he was granted British Citizenship – Amnesty Phil can just dump him on Nauru – he obviously doesn’t have a valid visa…..from unlawful combatant to illegal queue jumping immigrant in one fell swoop.
& much easier than dealing with some recalcitrant labor premier.
Everyone:
Is there an interval in all the diversions ? Okay; back on topic for a moment……
For all those who put so much faith in David Hicks’ confession of guilt ….. take a shuftie at the statement by Royal Navy sailor Faye Turney. They may indeed be her views on the War in Iraq; that is always possible, of course. But, that she, along with 14 other British sailors, is currently being held by the Iranian authorities may have influenced her decision to say such things. [I'm not starting yet another diversion here on whether those RN sailors strayed across the Iranian frontier OR were captured in a successful cross-border snatch operation].
b.t.w. Those with plenty of idle internet time might also care to look for those delightful photos, taken at different times both by the Imperial Japanese and by the North Vietnamese, of happy prisoners sitting down to dinner with full plates in front of them. Seeing is believing, isn’t it?
I have one word, the name of a malevolent ghost, for fellow Australians who are perplexed and disgusted at the descent by the civilized Americans [okay, only a very tiny handful of them] into viciousness and brutality such as seen at Abu Ghraib, at Guantanamo Bay and in “Rendering”; it may help them understand the inexplicable:
….. Andersonville.
John Greenfield, Rob, Bridie, etc. remind me of the bullyboys such as those of Mussolini and the German brownshirts who in the 1920s and 1930s armed with bludgeons went to break up leftists’ meetings and assault the attendees.
This thread has had 222 comments thus far, most of it reasoned and interesting debate, but here and there are a few grubs who cannot resist calling LP bloggers “luvvies” and suchlike, simply because they hold a different view to their own. Unable to make a convincing case, namecalling for them passes for counterargument. It is the equivalent of a knuckleduster to the face. It is the whiff of fascism.
A suggestion was made: ‘why come here to crap on us, why not start your own blog?’ Well, Rob links to one and we may presume it is his. It is called “The better part of valour” LINK. What is the average number of thread respondents per topic there? Three. It is a dull, lazy blog, devoid of contributors.
Not being able to do anything creative themselves, these individuals come to Larvatus Prodeo, a brilliant, vibrant, positive, life-affirming, democratic, award-winning blogosphere where the sparkling wit, enormous breadth of scholarship and wide knowledge across an amazing range of human activity makes it positively addictive to visit many times of the day and night. Its threads regularly exceed 100 responses. Even the Greenfields of this world cannot resist its welcoming, roistering community. It’s a great shame they come to spew abuse. But such is the price of democratic discourse. In the end, it’s worth it. And anyway, they condemn themselves out of their mouths and will be hoist on their contributions by the onrush of history. And here at LP we will be around to remind them what they said.
Well known leftie pest, Defence Secretary Robert Gates out there on the airwaves again suggesting that Guantanamo hearings lack credibility.
We’re lucky enough to have Obby & SATP’s inside information about the murderous Hicks, yet the information is clearly wasted on Gates.
Next stop after Sec Defense role: a position on LP, complaining about all the good things life has to offer.
That’s ‘murderous intentious‘ Hicks, via collins.
Bur why didn’t the Anna Winters and Kims and other ALP members or devotees on this site ever raise a squeak about the ALP’s disgraceful silence and lack of support for the human rights of David Hicks?
And why, most revealingly, when this is pointed out, they turn on the sarcasm, abuse and foul language and allude even to the “whiff of fascism”.
Shorter Bridie: pathological hatred of the Greens and craven, uncritical support of the ALP = really bad politics.
Head.
Wall.
Repeat.
Sorry about the Off topic, but….
I don’t know about (or like) kitten piles much, but can’t help but think that the above pic would benefit from the addition of a fox terrier to the pile : D
The ALP has been disgracefully silent about Hicks all this time and has only piped up when it may be to be to its electoral advantage (this makes Arthur Calwell’s opposition to the Vietnam War in 1966 all the more principled even though it led to a landslide vistory for Liberal Country Party Coalition. And let me say, the ALP has lied about, and been complicit in, the cover up of the murders of Australians in Balibo by the Indonesia military junta. I have no problem saying it.
On the other hand, admission that the ALP is choc-a-bloc with venal, self-serving political operatives is not a logical argument for denying Hicks legal and human rights nor a reason to shamelessly lie how and why he has been “convicted”.
The LP bloggers don’t actually march in lockstep on anything, although we share broad philosophical positions.
I don’t pathologically hate any leftist or centrist party and I don’t uncritically support any leftist or centrist party either. Over the years my vote has swung between Democrats, Greens and the ALP depending on both the personal merits of my local candidates and the issues of the day, and I expect it will continue to do so.
What Sir Hank said.
To those of you who know who they are.
There’s a difference between disagreement and disagreeable.
And for God’s sake, try to be as least as amusing as Obby.
SirHenryCasingbroke:
The coyness of the Australian Labor Party on the treatment of Mr Hicks, Mr Habib, Mr & Mrs Danes, the Australian yachtsman and his pregnant partner shot by our neighbours, the Australian journalists executed at Balibo, etc,. etc. ad nauseum is very easily explained: Australia is a de-facto one-party state. Confusion arises because of the use of the word “party” and because the general pubic will need an expensive TV ad campaign to change to using the more appropriate terms “Australian Labor Faction” and Liberal Faction”
The ALP – sorry “ALF” – will not be encouraging an civil suits by the Hicks family any time soon either.
Kim
what is with the main democrat prez candidates not co-sponsoring S.576 The Restoring the Constitution Act of 2007 into the Senate – ie. Obama and Clinton and Biden http://www.washingtonwatch.com/bills/show/110_SN_576.html
the accompanying bill the H.R. 1415: Restoring the Constitution Act of 2007 – was introduced into the house on March 3, 2007
http://www.govtrack.us/congress/billtext.xpd?bill=h110-1415
is there any reason why so few democrat presidential senators are supporting these bills?
Kim – and if they passed (??) – what is the process after that?
my comment isn in moderation – but it should say – “so few Democrat Senator Presidential candidates”…hmm……you know what i mean!
Sky News just asked AG Ruddock if $3ook provide by Federal Govt had been drawn down by Hick’s legal team.
Ruddock confirmed that it had and that Aust does support Australians with legal costs when in trouble overseas.
I find this very generous as I consider that Hick’s gave up his Australian Citizen ship the moment he picked up a gun and was prepared to kill for an organisation other than the Australian Government as a soldier.
Bush propable regrets ever organising a bounty on the Taliban/Alqida fighters.
The Northern Alliance would of dealt with Hicks as another foreign fighter.
I’m no fan of the ALP’s human rights position, and i think at Federal and State level they have been disgracefully complicit in the introduction of the Howard govt’s ill-conceived anti-terrorism laws.
But since Rudd took the reigns, they have taken a more principled line on Hicks, probably sensing the Australian electorate’s disgust at their government’s complicity in Gitmo.
I have campaigned with Civil Rights Defence for over a year, and we have had several Labor speakers at our David Hicks events including the former Shadow attorney-general Nicola Roxon and federal MP Maria Vamvakinou. As shadow foreign minister, Rudd made some very strong statements on Hicks including: “It is a national obscenity that David Hicks has remained in Guantanamo Bay for five years without a trial and furthermore, when it comes to the prospect of him obtaining the most rudimentary forms of justice, he’s not going to get those under a US military tribunal.� Much stronger than Bomber. But now, silence.
I expect Labor to maintain its line on the illegitimacy of the Commission Sham.
As for other parties, we have had strong support from the Greens (speakers including Bob Brown) and the Democrates (speakers including Natasha Stott Despoja and Lyn Allison). We have purposely asked all political parties to speak including Liberal and National party politicians – none have from either of those two. So in our Melbourne campaign at least, we have been as inclusive as possible.
In terms of towing the party line on Hicks, when Federal MPs were polled at the end of 2006 whether Hicks should be released from Gitmo, 66 said yes – of those only two were Liberals – Danna Vale and Alexander Somlyay.
Allan – for you
Link didn’t work.
Oh well.
Oh yes it did. This is confusing to me.
Re tigtog’s kittenpile.
Grownups keep tabs on lazybums.
Thank you for the image of the distinguished grey feline.
Not quite sure I grok you grownups/lazybums line, but it’s a nice moggy.
No suz, not ridiculous at all. At least, my original statement, which you have misunderstood, is not ridiculous.
Hicks’ original detention as a POW was completely legitmate. He was a combatant, according to the laws of war. The red herring that he never fired a shot is irrelevant to his status as a combatant.
The attack on VP Cheney demonstrates that the war in which Hicks was fighting on the side of the Taliban still continues, and that his continuing detention would still be legitimate, although unwise and unuseful, IMO.
In a world where anyone with Internet access can set up a blog for free, demanding that other bloggers follow one’s own agenda is ridiculous and pointless.
Ah, Sir Henry, what you say about my poor blog is all too true.
You could get used to the idea, though, that not everyone in the world agrees with you.
They say he has kids , god bless em for what they have to go though for the pleasure of our leaders we elected
http://news.yahoo.com/s/afp/20070329/pl_afp/usattacksguantanamo_070329185904
No shit Sherlock!
They would “lack credibility”!!!!!–well FFS, why this “disgraceful silence” from the Right and “lack of support for the human rights” of President Bush to lock up anybody, anytime, for 5 years without trial at Guantanamo Bay???
Allan:
Of course Attorney-general Ruddock would “confirm” that the $300K had been drawn down by that legal team; I’m amazed he didn’t snout it from the rooftops ….. because it fits in so elegantly with the campaign to demonize Hicks.
Will, you said
My oath they have!! The presence of a few ALP members who support your cause does not imply wholehearted support from the whole party.
This is the Tampa Mk II. So it has now come to pass to save Ratty’s political hide that:
Hicks will be jailed until after the federal election, with a specific clause where he is not able to speak to the media, written into the sentence especially to protect John Howard. Is this what they call the Rule of Law in this fair brown land? How does that serve the public interest?
Hicks had to confess to terrorism in a self-criticism session before a Yank military tribunal that could not obtain legitimacy even in the US proper, even though he is convicted on a charge of materially aiding terrorists – a charge that was invented after the alleged offence took place.
How does Hicks’s non-combatant service with the Taliban for a week compare to AWB REALLY materially aiding (to the tune of $300 million) the terrorist regime of Saddam Hussein, whose reign was of such a danger to the world that it had to cost half a million lives and a destruction of a country?
Will Kevvie will just sit this one out under the table?
THIS IS AN OUTRAGE!
The more I read about it this morning the closer I get to apoplexy. John Howard says he is “pleased the case is resolved”.
Quoted on the ABC site this morning, the truly execrable Lying Rodent says: “the facts speak for themselves [lie no. 1], despite criticism levelled at the Government for its handling of the case.
“I had wanted him to face justice [lie no. 2] and the only way [lie no. 3] that could happen would be for the military commission hearing to take place [lie no. 4] because it was not possible for him to be tried in Australia,” [lie no. 5] he said.
And here is what Kevvie has got to say for himself:
“We in this country, whether we are the alternative government or the government, are bound by Australian domestic law… It underpins the intergovernmental agreement which the Australian Government has entered into with the United States. As an alternative government, our responsibility is to honour the law and that’s what we propose to do.”
I thought I was dreaming, hearing in “this country”, the nauseous, mealymouthed abrogation of its responsibility from a pseudo-Opposition. Until I heard from Bob Brown: “This is an astonishing political fix between the Howard administration and the Bush administration.
“This is carefully choreographed to have Hicks shut up until after the election.
“That’s because they know that this is an illegal process. It breaches Australia’s standards of democracy, human rights, civil rights.”
Good on ya Bob. A voice in the wilderness. Shame on the parliament of this country. Go and boil your bottoms, I blow my nose at you, so-called prime minister and leader of the opposition, you and all your silly parliamentary k-nnnnniggets. Thpppppt! Thppt! Thppt! I fart in your general direction!
Does anyone know if Hicks’ confession has been, or is going to be made public? and where to find it?
The BBC reports that the plea deal also involves Hicks saying he has never been mistreated in custody.
Real 1984 stuff.
Well, also like the 1930s Stalinist show trials Orwell was riffing off.
Thanks for the summary , Sir H. WHAT IS KEVIN RUDD TALKING ABOUT???? Of course the prisoner exchange laws are legit, but has he now U-turned on the military commissions? If he has, then I think we have to ask what else he is going to say he is doing, and then do the opposite. I feel a bit of deja vu, as in, Blair 1997.
yes, Kim, quite right, you reminded me of how Jeff Sparrow started a recent post on another torture-extracted confession;
B.Brown,
“That’s because they know that this is an illegal process. It breaches Australia’s standards of democracy, human rights, civil rights.�
Now if he’d been addressing Hicks’ and his al Qaeda mates’ actions, he may have had a point!
So folks,
torturedoutrageously pampered David Hicks cannot speak to the mediauntil after the forthcoming federal electionfor one year aboutan utter perversion of justicethe fair and open application of the ancient tenets of jurisprudence.Just imagine what Ratty doesn’t want you to know. It’s probably worse than you are capable of imagining.
Think about that when you line up at your children’s school to vote.
What happens if he talks to his father who talks to the media?
Come to think of it, what happens if he does talk to the media, from his South Australian jail cell? What is the Government going to do, ship him back to Guantanamo?
Indeed, if might be in Howard’s interests if Hicks did talk to the media. He is something of a loose cannon, after all. If he says he was tortured, Howard will respond, “he would say that”, and most of the general public will agree. If Hicks something like, “long live Osama”, and he might, Howard will respond, “see, we were right about him all along”.
Rudd’s moral cowardice in responding to the Hicks fit up reminds me of The Wizard of Id character, Sir Rodney. Kevvy is as weak as piss.
Bob Brown’s Senate candidates will benefit from Bob speaking truth to power on the Hicks stitch up. Might even get his party balance of power at this year’s federal election. At least this time Bob wasn’t flying-wedged by Howard’s heavies as he was when he tried to present Bush-The-Imbecile with a written petition on the floor of parliament.
In the meantime Sir Rodney Rudd is busy breaking his “spear” into even smaller pieces lest voters think he should show a bit of ticker in regard to Hicks’ show trial and its aftermath. Yesterday’s Alan Ramsay piece in the SMH showed how hard Rudd is prepared to fight to save his hagiography. It is a great disappoinment that Rudd doesn’t display a bit of the same mongrel over David Hick’s treatment.
PS Good on you, site techies, for getting LP rolling again. There’s no Oz based blogsite to match it.
‘we will never get a satisfactory legal test of Hicks’ actual guilt or innocence’.
Uh, he pleaded guilty. Innocent people do not plead guilty.
Sandbox wasn’t that what Lubras did to make the hard thing hard work?Anyway don’t plead guilty someone may just believe you.
wake up sandbox. anyone with a bit of nous knows that ‘guilty’ actually means ‘get me out of here’.
anyway, as this amusing YouTube comp shows, Alexander Downer has also pleaded guilty, repeatedly.
Bob Brown is speaking at a Free David Hicks rally in Melbourne on April 21.
Outcry against Hicks’ slap on the wrist–Gitmo prosecutors. Somehow I don’t think the issue will neatly disappear for John Howard, something is bound to come back and bite him on the bum, later rather than sooner–maybe. Perhaps it is the fact that he appears to have broken Division 268 of the Criminal Code, denying a protected person under the Geneva Conventions a fair trial?
Alistair Nicholson seems to think something stinks, in the land of malodorous Ratfinkdom, the deal stitched up could have a whiff of caveat emptor in its odiferousness.
http://www.theage.com.au/news/opinion/our-own-laws-condemn-hicks-trial/2007/04/01/1175366072889.html?page=2
One thing is for sure, deals made under duress are not worth the paper they’re written on: this Stalinesque show trial in its aftermath has a long and and slow burning fuse.
This Sunday Age story is an interesting insight into the social dynamics of Gitmo by Mandoub Habib.
According to Habib, Hicks was more susceptible to torture and to ill-treatment than the general run of Gitmo inmates.
Moreover, in an interview Terry Hicks mentioned that his son David was vilified and ostracised by other inmates as an informer. Hicks may indeed have been an informer, the Gitmo authorities may have spread that rumour for their own purposes, or Hicks may hve been the victim of racist attitudes among other inmates.
It could well be argued that Hicks was therefore the perfect first defendant for these Military commissions. Offer Hicks a deal in return for a coerced “confession” and he’ll jump at it.
This morning it was revealed that Hicks’s plea bargain was stitched up in the Pentagon over the heads of the prosecutors. This may or may not be a good cop/bad cop routine.
However, the bottom line is:
a. The military commission process has had its first case,
b. Other inmates now know that it is possible to get a soft result.
c. An importunate John howard has been mollified.
d. The RWDB choir will believe the veracity of Hicks’s “confessions”.
e. Most importantly, the Hicks process provides a convenient way of minimising the continuing scandal in US domestic politics of Gitmo and the Military Commission process.
I’m about to close this thread folks, as it’s got very lengthy and is taking ages to load. There’s a new Hicks thread open [here].