Australian Guantanamo Bay Detainee, David Hicks, Determined to Fight US military charges

David Hicks, "an Australian son abandoned by the nation and his government has decided to fight the fabricated charges brought against him by the criminal Bush regime." reports the Cleaves Editorial team in a post to Melbourne Indymedia. Hicks has already rejected a plea bargain. Major Michael Mori, his military defence Counsel, has called for the Australian Howard Government to challenge the charge of 'providing material support of terrorism'. "It's a made-up charge, it has a really impressive name, but it never existed in the law of war, in any of the US law of war manuals, or in any Australian law of war manual," he said.

On 26 February Lawyers for David Hicks fronted the Australian Federal Court in Sydney in the ongoing case against the Commonwealth of Australia for failing to protect an Australian citizen abroad. Justice Brian Tamblin reserved his decision citing the complexity of the case.

Friday vigils in Melbourne, Australia continue to garner support for David Hicks, with recent speakers includingTasneem Chopra of the Islamic Women's Welfare Council of Victoria, Monash University law lecturer Patrick Emerton, well known Melbourne comedian Rod Quantock and a relative of one of the Barwon 13, and Terry Hicks, David Hick's father, who in true Australian fashion lambasted both the Australian and US Government saying "we have a Government that is right up the backside of that bloody Bush Administration." he said.

Previous speakers have included: Greens Senator Bob Brown, Brian Walters from Liberty Victoria, former Shadow Attorney-General Kelvin Thomson, civil libertarian lawyer Rob Stary, textile union official Michelle O’Neill, Democrats leader Lyn Allison, and Greens MLC Colleen Hartland.

On December 9, 2006 five thousand people rallied at Federation Square in Melbourne to express their outrage at the Australian government’s treatment of Hicks.

The 2007 Gay and Lesbian Mardi Gras in Sydney featured a 'Love Justice - Bring David Hicks Home' float. Vigils and protests in other cities and towns like Geelong and Brisbane are also raising the issue.

Since being arrested by the Northern Alliance in Afghanistan and sold to the American military, David Hicks has been interned without trial or charge for five years. He has suffered various methods of torture and sensory deprivation, and countless interrogations. He is currently held in solitary confinement, with the lights in his cell turned on 24 hours a day.

According to Civil Rights Defence "The Australian government has been complicit in this gross violation of human rights, refusing to call for Hicks' release, and continuing to express faith in the Bush administration's discredited military commissions, which are condemned by the Australian Law Council, the Red Cross and the British government among many others. Prime Minister John Howard, Attorney-General Philip Ruddock, and Foreign Minister Alexander Downer have shown contempt for the rule of law, failed in their duty of care, and have become involved in one of the most disgraceful human rights abuses of our time." they said in a public statement.

Internet activist site, Getup!, has outlined seven reasons why Australia must extract David Hicks from the US Military Commissions now that a charge has been announced:

1. The military tribunal is convened and selected by the executive

A fair trial includes a guarantee of independence and impartiality. However under the military commission process, the people who are responsible for convening the military commissions are also the ones who are calling for a guilty verdict. The very same individual who convenes and refers charges to the military commissions has a breathtaking amount of power over the establishment and proceedings: to select members who vote on guilt or innocence, to oversee the chief prosecutor, to approve or disapprove plea agreements, and to close commission proceedings. This is like, as Geoffrey Robertson has put it, a person charged with an offence against the police being tried by a jury of policemen selected by police, subject to review by the police. This is not the case in courts-martial.

2. Hearsay within hearsay

In Australia, hearsay evidence is not permitted as the person who made the statements is not present in court. The fact that hearsay evidence is permitted, without any opportunity to cross-examine the person who made the statement, is in itself enough to constitute a miscarriage of justice. But the military commissions even allow the introduction of ‘hearsay within hearsay’ – allowing the introduction of evidence twice removed from the witness – still with no opportunity to test and challenge the evidence.

3. Non-disclosure of sources, methods or activites used in obtaining evidence

Another fundamental right in our system of justice is to be given an opportunity to answer the evidence presented against you. The US Government says that the Military Commissions Act (MCA) safeguards against this, but the right to be present or to test the evidence is illusory. The military judge may protect from disclosure the sources, methods, or activities by which the United States acquired evidence, and exclude the accused from that information – information on which they may be convicted.

4. Evidence adduced through coercion/ evidence adduced through torture

The MCA bans evidence obtained by torture, but permits evidence obtained through ‘coercion’, as defined by the Detainee Treatment Act (2005) which allows many practices most other legal systems, including ours, would regard as torture. The MCA also creates a defence for torture by US actors if they were unaware at the time that what they were doing was illegal. Evidence to be brought before the UK courts in May will chronicle incidents of torture and mistreatment, which coincide with the interrogation times where David Hicks allegedly made statements about his time in Afghanistan.

5. No right of appeal to civilian federal court

The MCA allows for automatic review of all findings by the Court of Military Commission Review, which is established by the same authority that establishes the military commission (the Secretary of Defense). This is no review in a practical sense – it is by the same authority that made the original decision. Review is only permitted to the US Court of Appeals and then Supreme Court on errors of law – in other words if the commission has complied with the rules of the MCA. Again, this is nothing like an ordinary criminal appeal. It would present no new chance to the accused to answer any of the evidence presented to the original hearing, it cannot review an appeal based on the detainee’s actual innocence.

The Court of Appeal has already held that detainees have no right to challenge their detention, but the implications of this go further. The executive branch of the government (the same that convenes the commission) determines the status of people. They can determine a permanent resident or foreign national to be an enemy combatant and lock him up indefinitely without the opportunity to challenge detention. The only means to appeal this is the Combatant Status Review Tribunal, but there is no statutory requirement to use this tribunal.

6. The charges

One of the two charges has now been abandoned for the second time with no ‘probable cause’ to justify it, leaving only "material support for terrorism” before the military commission, a charge never seen before in the US or Australian manuals on the laws of war.

The charge was created in October 2006 referring to alleged acts in 2001, a full five years before its retrospective introduction. It is unacceptable that retrospective legislation can be applied to an Australian citizen under a military commission process, and at the same time be given as the reason why David Hicks cannot be charged under Australian law.

7. Time – over five years in detention without trial

The overwhelming majority of the Australian people have made it abundantly clear that after five years of detention, they want the Australian Government to bring David Hicks home. Last December’s GetUp Newspoll found that 73% of Australians want David Hicks home even if it means that he is returned as a free man. This includes an extraordinary 67% of Liberal voters unambiguously calling for his return.

Other Sources:

• ABC Radio - 2 March 2007 - Hicks's US lawyer say charges 'thin'

Background:

• Fair go for David
• Bring David Hicks Home
• Civil Rights Defence
• Cage Prisoners