Home > Oz Politics > Hicks and treason

Hicks and treason

February 18th, 2007

Peter Costello makes the plausible point that, if the charges against David Hicks are true, he could have killed Australian soldiers. But the same story in the SMH goes on to say

Australia has steadfastly refused to ask for Hicks to be released from Guantanamo because he could not be tried for his alleged crimes in Australia.

How can this be true? Under the Australian Criminal Code,

“A person commits an offence, called treason, if the person:

….
(e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
(ii) specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or
(f) engages in conduct that assists by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed hostilities against the Australian Defence Force; or

I can’t see how the alleged crimes for which Hicks is to be tried in the US are not covered by this crime (note, by contrast, that it is not necessarily a crime for an Australian to fight against the US, which explains the constantly shifting charges brought against Hicks there).

This has been tightened up a bit since 2001, when the relevant section of the Crimes Act read

(d) assists by any means whatever, with intent to assist, an enemy:

(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

(ii) specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth;

….

(f) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act;

but it seems clear that if Hicks agreed to fight with the Taliban against a Coalition including Australia, as claimed in the charges against him, he’s guilty of treason.

The only meaning I can impute to the government’s position is that Hicks could not be convicted of treason because the evidence the American prosecutors plan to use (confessions extracted under torture, hearsay and so on) would be thrown out of an Australian court.

Categories: Oz Politics Tags:
  1. Hermit
    February 18th, 2007 at 10:52 | #1

    This kind of legislation perhaps shows the need to declare ‘war’ against a stronghold of possible terrorists. Thus an Australian can be guilty of treason supporting groups in Afghanistan but not for vandalising a High Commission in Ottawa or Wellington. Unless other legislation applies. A further difficulty is opposing the ADF in Howard’s term but going to trial under a later PM like Rudd who may have withdrawn the military.

    To me the obvious point is that charging someone with treason in Australia is to immediately put the boot on the other foot. In other words it puts the government on trial. Critics will ask what the government did to reconcile with the Taleban or whomever. Then we’ll get interminable claims of political persecution. Somebody charged with treason would have to have done a bit of child molesting on the side for the government to get majority support.

  2. February 18th, 2007 at 11:22 | #2

    “Those people, whether they be in the United States, United Kingdom, Australia or in any other part of the world, people who are arguing that we withdraw from Iraq, to abandon the Iraqi people, to ignore the requests of the democratically elected Iraqi Government – those who argue that we should do that before the Iraqi security forces are in a position to essentially look after their own security, we will by definition hand victory to those al Qaeda and other terrorist networks who see it as important” said Brenden Nelson on Lateline.

    If they brought back Hicks and nailed him for Sedition, he might not be short of company in jail. Over half the population could be caught up in the net, if our Brendan is throwing it. Sedition is widely enough drawn to be anything the Liberals think it is.

  3. Hal9000
    February 18th, 2007 at 12:29 | #3

    My reading of the statutes you’ve so kindly provided Prof Q, in either pre or post 2001 form, is that you either have to have a proclamation under subsection (d), which you don’t, or you have to prove intention under subsection (f), which would be difficult I’d reckon. You need to formulate an intention to betray in order to cop a treason rap, and the evidence suggests that chief among Hicks’s follies was failure to pick up on the nuance that back in Adelaide his Koran-bashing mates had shifted from being anti-Russian and anti-Serb good guys to being the latest incarnation of Nazi black hat wearers.

    The Fairfax press is saying today that Howard is going to arrange for Hicks to be brought back if no conviction can be obtained by mid-year, suggesting that the Libs’ focus groups are identifying the issue as a vote-changer. I look forward to the logical and rhetorical gymnastics Gerard Henderson will be called upon to perform in order to frame the propaganda copy supporting that particular backflip.

  4. February 18th, 2007 at 12:40 | #4

    Sedition would include any who spoke against the Vietnam War. Going to be awful crowded in jail. At least the average of common sense among the free citizens will undergo a sudden and dramatic rise.

  5. Brian
    February 18th, 2007 at 13:29 | #5

    The amendments to the Crimes Act are not applicable because they were made after Hicks’ capture in late December, 2001.

    There was apparently no Proclamation (of an enemy).
    What about jurisdiction? Isn’t the Crimes Act only for Australia?

    Were Australians in the exact location where Hicks *is thought* to have been on or about 9th Nov 2001 – the only possible time for combat, and could Australia prove troops were there?

    Did Hicks actually DO anything at that location in Nov, 2001, and could Australia prove it, or prove he was there?

    Could Hicks have been reasonably expected to know that Australians were on the front line where he is alleged to have been for a few hours – or if Australians were involved in the invasion at all?

    Did Australians suffer any disadvantage or damage if they were in the same front line as Hicks in Nov, 2001?

    In Item (f) (1) – There WAS no “other country” because Australia did not recognise the ruling Taliban government, so it could not be in conflict with “Afghanistan” (or the government of Afghanistan).

    In Item (f) (2) – It might have been hard to prove that an “organization” was assisted, or even existed. [The Americans referred to "terrorists"].

  6. February 18th, 2007 at 13:36 | #6

    3% of the vote(IMHO) 10% if he dies

  7. Brian
    February 18th, 2007 at 14:32 | #7

    Further to my earlier comments, it appears that the only time Hicks got close to combat (on or about 9th Nov 2001) he was facing Northern Alliance tanks – not Australian military. That would mean treason was impossible because there is nothing in the allegations that could involve the Australian military.

  8. pseudonym (econowit)
    February 18th, 2007 at 15:11 | #8

    Hicks to be home ‘by year end’ no matter what…

    Foreign Minister Alexander Downer says.

    http://www.smh.com.au/news/national/hicks-to-be-home-by-year-end/2007/02/18/1171733599832.html

  9. February 18th, 2007 at 17:53 | #9

    “He was there as a devotee of al-Qaeda, he’d been through terrorist training camp with al-Qaeda and ………” also says Peter Costello in JQs link. Looks to me like Costello is another ex-lawyer and part of the government team who seems incapable of leaving matters even to kangaroo court to ponder and decide.

    He is undoubtedly privy to information that the general public isn’t, but hey. It would be just a little bit fair that he did not line up with the prosecution team with such comments. They all seem not to give a damn about all the legal principles they were trained up for, like ‘the presumption of innocence’ for instance and they have the audacity to call themselves “conservatives”.

  10. pseudonym (econowit)
    February 18th, 2007 at 20:12 | #10

    The executive of the Howard government has become judge and jury in the Hicks case, corruptly assuming the role of the judiciary who is suppose to interprets the laws; Howard has stated in his own words “he can have Hicks released at any time�.

    This is clearly an exercise in absolutism by ‘the rodent’. He should be asked to define the doctrine of the separation of powers in the Westminster system? If unlike Bjelke-Petersen he understands it, then he should be asked why he has chosen to disregard the whole of Chapter III of the Constitution (Judicial Power of the Commonwealth) and Section 71 in particular?

    The three branches of government: legislative, executive and judicial acting individually, helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights.

    ‘The rodents’ treatment of Hicks is certainly a case of ;

    ” All power corrupts; absolute power corrupts absolutely”

  11. February 19th, 2007 at 00:48 | #11

    While being in combat against Australian troops would be definitive, it is not an essential feature – just a convenient test.

    I think that where the matter could fall down is the retrospectivity – unless the legislation was explicitly retrospective, or purportedly clarified something that was purportedly implicit in existing legislation. So whoever argues it might get round that, if the dice fall their way, and I wouldn’t put money against that.

    If you look at the nature of the tests involved, it should be clear that proclamations (like declarations of war, of which they are watered down variants) only recognise and announce a state of affairs, after the fact, not create them. As such, they inherently cover some earlier period. Who forbids the proclaimers from making a suitable proclamation tomorrow, covering events all the way back to before 11.9.01?

    You may also like to see some relevant parts of the Australian Constitution, the ones that say that it is irrelevant whether Hicks ever disavowed Australian loyalty if he still did things that brought him the benefits of Australian citizenship. This is what got Lord Haw Haw, since he used a forged British passport on occasion. (I always thought they made that up to get the result until I found that the principle was around before, for instance as embedded in the Australian Constitution.)

  12. Brian
    February 19th, 2007 at 05:50 | #12

    [P.M.Lawrence wrote]

    (re: Proclamation of enemy)
    “I think that where the matter could fall down is the retrospectivity – unless the legislation was explicitly retrospective, or purportedly clarified something that was purportedly implicit in existing legislation. So whoever argues it might get round that, if the dice fall their way, and I wouldn’t put money against that.”

    “If you look at the nature of the tests involved, it should be clear that proclamations (like declarations of war, of which they are watered down variants) only recognise and announce a state of affairs, after the fact, not create them. As such, they inherently cover some earlier period. Who forbids the proclaimers from making a suitable proclamation tomorrow, covering events all the way back to before 11.9.01?”
    ~~~~~~~~~~

    An accused person would be incapable of forming intent to commit treason if a Proclamation was issued afterwards. In any case, treason is for significant harm – even though it’s not mentioned in the Act.

  13. February 19th, 2007 at 08:28 | #13

    I don’t think there is much point seriously arguing this issue, given that the government is clearly not serious about it. This is just spin, spin, spin…

    Of course, you need to be able to define “the enemy” in order to proclaim a war, and Howard cannot even define the “war”. Costello says Hicks “could” have fired on Aussie troops. By the same logic, Costello “could” be a pedophile (and I “could” have privy access to secret information on that matter… of a quality equal to or better than the US government’s “slam dunk” WMD intelligence).

    Basically, Costello should either provide some evidence or shut up. But don’t expect moral behaviour from anyone in the Howard government. If there were one single person in cabinet who was not tainted by association with a full decade of scandal, the rest of them would be contemplating dumping Howard as leader and putting them forward (enter Mal Turnbull?).

    This is what happens when you habitually turn human lives into political footballs. You become insensate to human suffering and – dare I say it – evil.

    “Hicks to be home ‘by year end’ no matter what… “

    Don’t bet on it. Downer’s offer is actually dependent on two things:

    1. a guilty plea by Hicks, and

    2. no legal challenges from Hick’s (or presumably others’) lawyers (Downer and the Bushites have frequently blamed such legal appeals for the delays in Gitmo cases, ignoring the fact that the Supreme Court ruled the appeals valid).

    Thus Hicks will become a self-confessed criminal (“the worst of the worst”) and the US Military Tribunal system will also be justified. Most importantly for the spin-meisters in Canberra, this damaging election issue will be dead in the water, whether or nor Hicks comes home. That’s all that really matter to them.

    So basically, as Hicks’ father predicted a few weeks ago, a politically convenient plea bargain is being offered to Hicks. The question is: will he take it?

    Well, would YOU?

  14. February 19th, 2007 at 08:49 | #14

    PS, steve at teh pub, I am still waiting to hear you articulate a plan for victory in Iraq.

  15. February 19th, 2007 at 10:16 | #15

    There are other elements that have been sidelined in the rhetorical clamour. At the outset the USA’s executive decision was to not permit “unlawful combatants” to be recognised and treated as prisoners of war under the provisions of the Geneva Convention. If they had then the legal remedy for trying and convicting “unlawful combatants” would have had to proceeded under a specific War Crimes tribunal such as was convened in Nuremburg in 1945 to cover the European theatre of world war two, or following the Hague’s model in dealing with Slobodan Milosevic and other war criminals.

    In those jural systems the normal rules of evidence and cross-examination procedures ensue. Now the Nuremburg example did involve the retrospective factor of covering atrocities committed between 1939-45, but without denying the accused the opportunity of being fairly treated by way of legal defence.

    However with the “war on terror” a new legal fiction that is unparalleled in US legal history has been instituted. While it can involve the retrospective element (and that of itself need not work against the accused), the fundamental difficulty is that the proposed system for trying the charges prevents the accused from receiving the kind of fair treatment that the Nuremburg trials allowed. And in the case of Nuremburg it must be remembered that the procedures were of an international tribunal — it was not French law, British law or US law applied.

    Since there is an international “coalition of the willing”, it is indeed curious that the US takes the privileged role of deciding to try the accused and excluding from the proceedings her allies (like England and Australia). While one can engage in conjectures till the cows come home, one wonders whether the current regime of treatment and proposed legal remedies would even exist had the card deck included equal representation from the coalition partners.

    If we look at the UN Universal Declaration on Human Rights (1948) [a document that Australia ratified] there are several articles in it that David Hicks is entitled to:

    Article 5 “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”;

    Article 6 “everyone has the right to recognition everywhere as a person before the law”;

    Article 7 “All are equal before the law and are entitled without discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”;

    Article 8 “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”;

    Article 9 “no one shall be subjected to arbitrary arrest, detention or exile”;

    Article 10 “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”;

    Article 11 “(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence” (2) “No shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”

    Under these provisions David Hicks would have to receive a fair and impartial trial in Australia. As the US has bracketed international laws and covenants from applying to “unlawful candidates” they in effect are being treated as legal lepers or non-persons on an ad hoc basis. Instead of our Westminster-based common-law rules and rights applying to David Hicks, he is instead being treated under provisions one traditionally associates with dictatorial regimes that negate democracy altogether. The appalling thing then is that the USA as a paragon of democratic freedom (and Australia by extension) has denied David Hicks the kinds of protections and rights that kick started that nation’s declaration of independence and founding constitution.

  16. February 19th, 2007 at 10:37 | #16

    No, Brian – the intent involved is not to commit treason, but to do certain kinds of harm. So what if the harm is not yet detailed and categorised? It’s like saying that a person can’t commit a crime if the formal charges haven’t yet been prepared when he does so.

    The point is, the whole procedure is constructed to allow that sort of retrospectivity, at least up to a point. Abusing that is distinct from not having that at all.

  17. pseudonym (econowit)
    February 19th, 2007 at 11:05 | #17

    “Well, would YOU?”

    He has not for more than 5 years. It would hard to hang much longer.

    It is the opposition’s job to point out deficiencies in government policy and to score political mileage out of it. (Howard has stated in his own words “he can have Hicks released at any time�.)

    The opposition should be pressing hard for his return as there is no hope of a fair and just trial under the military commissions.

  18. February 19th, 2007 at 11:57 | #18

    Whether it is the total abandoning of moral and legal principles of justice and human rights or the pig headed obstinance to ignore the facts about environmental degredation, our leaders, of all persuasions have failed us.

    However, the shame is ours if we continue to let them behave in this way without santion.

    How long is the average consumers memory seems to be the only concern of our political system today. When the men and women who less than four months ago so chided or denegrated anyone who called for action on HIcks or climate change, now hold themselves to be the only ‘true believers’ in reform, will we fall for it? This is an intelligence test for the Australian population!

  19. Brian
    February 19th, 2007 at 13:34 | #19

    Gandhi asked”

    “So basically, as Hicks’ father predicted a few weeks ago, a politically convenient plea bargain is being offered to Hicks. The question is: will he take it?”

    “Well, would YOU? ”
    —–

    It’s impossible for me to imagine being in Hicks’ situation and answering that question because it involves imagining one’s self as a terrorist. It’s also impossible to imagine being allowed to talk with a lawyer to discuss the offer without the following things:
    (a) A Gitmo guard preventing free communication.
    (b) Taping of the conversation by prison staff.
    (c) Concealed microphones in his overalls.
    (d) Shotgun microphones aimed from a distance.
    (e) The potential for revenge by the meat-heads at Gitmo.

    If I was Hicks I’d be saying to my lawyer – “What am I supposed to admit to – the legal stuff that I did, that is being called illegal? and also “Will it still bring down the Liberal government if I get out a bit earlier – or should I wait until the Liberals are completely crushed as a political party by the angry voters?”

    The lawyer might say “They’re buggered either way now – so why not rely on the Aussie people to get you out of Yatala jail after you get home or when the U.S. Democrats give you a pardon in Jan 2009 and ask Australia to release you?”

    I’d say “Nah, I can hack it for a bit longer after hearing the good news – lodge the appeal against the legality of the military commissions, because the Aussie people or the U.S. Dems will get me out before the appeal is ever decided. The appeal will also give everyone else in Gitmo a fair trial”.

    I’d then say “Any chance of getting my case held over so that one of the other defendants is put on trial first. If you can arrange that, then THEIR lawyers can launch the Supreme Court appeal first and we can’t be blamed for my own imprisonment and then THEIR lawyers can finish the job after I’m out.”.

    “So in summary, tell ‘em back home I’m NOT pleading guilty to anything, because I might not be able to make any money out of my books and interviews if I get convicted, but don’t tell ‘em that I feel like an accidental hero and that I smiled for the first time in years when I found out that I was sort of responsible for:
    * Demolishing the Aussie Liberal Party
    * Demolishing military commissions
    * Demolishing Gitmo (literally)
    * Exposing shonky U.S. activities
    * Causing problems for the Republican party.”
    * People learning about Islam and prisoner’s rights.

  20. Razor
    February 19th, 2007 at 13:58 | #20

    The ADF did not commence operations in Afghanistan until after the Taliban were defeated. The law you quote is in relation to assisting enemies of Australia. The Howard Government’ legal advice that he would be unlikely to be convicted of Treason under the laws that existed in 2001 is correct. The Taliban where not an enemy at war with the Commonwealth when Hicks was captured.

    It’s not that hard to understand. So, because the law was inadequate, do we just let him come back to Australia and continue on his merry way? What a marvellous idea! Not!!

    On a related note – none of the Hicks boosters have yet been able to adequately explain how, if the Geneva Convention is to be followed, Hicks should be treated. The Geneva Conventions define combatants and civilians. Hicks does not fall into either of these categories, he is therefore an illegal combatant and the Geneva Conventions don’t apply. However, if they are applied and heis considered a POW, then POWs are able to be held indefinitely, until the end of hostilities, without trial. Hostilities with the Taliban and Al Queda continue – therefore no release.

    There is no legal consistency from the Free Hicks supporters.

  21. jquiggin
    February 19th, 2007 at 14:48 | #21

    Razor, the category of unlawful combatant is one invented by the US. Hicks could reasonably be treated as a POW, but if so the US has violated the Geneva conventions in many different respects in the way it has held him.

    As regards his alleged crimes, there’s no obvious requirement for ADF forces to be in action. Moreover, as Ken Parish pointed out over at Troppo, the facts alleged against him appear to involve numerous crimes under Australian law. The big problem is they can’t be proved because the evidence is tainted.

  22. Brian
    February 19th, 2007 at 14:53 | #22

    Razor wrote:

    “The ADF did not commence operations in Afghanistan until after the Taliban were defeated. The law you quote is in relation to assisting enemies of Australia. The Howard Government’ legal advice that he would be unlikely to be convicted of Treason under the laws that existed in 2001 is correct. The Taliban where not an enemy at war with the Commonwealth when Hicks was captured.”
    ~~~~~~~~~~

    Does this make any difference:

    A search of Google Groups for Sept 2001 displayed a post which said:

    - – - – - – - – - – - – - – -
    [19th Sept 2001]
    By IAN McPHEDRAN and agencies
    Herald Sun 19sep01 page2

    Australian troops set to fight

    THE Government has given the green light for Australians attached
    to American military units to go into action in the US and abroad.

  23. Brian
    February 19th, 2007 at 15:04 | #23

    jquiggin wrote:

    “Razor, the category of unlawful combatant is one invented by the US. Hicks could reasonably be treated as a POW, but if so the US has violated the Geneva conventions in many different respects in the way it has held him.

    As regards his alleged crimes, there’s no obvious requirement for ADF forces to be in action.”
    ~~~~~~~~~

    Whether you’re right or wrong, all of that makes perfect sense to me. It does however raise the question – What sort of treason could be committed by a foot soldier with a rifle in Afghanistan if Australians weren’t there, and Australia had not made a Proclamation wich stated who the enemy was?

  24. February 19th, 2007 at 15:11 | #24

    Folks,

    Any discussion of the Geneva Conventions assumes that you buy into the US Govt line that this is a “war”. Back in the 1970′s, terrorists were terrorists and there were plenty of laws available to deal with them! The whole “war on terror” hoax is just a political vehicle for endless spin, and a legal vehicle for endless detention.

    Rather than declare some phoney war (which even Donald Rumsfeld admitted does not really exist), we should be bolstering international law and worthy institutions like the International Criminal Court (ICC). Indeed, a fully-supported ICC would have been the best way to deal with Saddam (and even Hicks, for that matter), and it remains the best way to deal with other war criminals like Bush, Blair and Howard.

  25. Brian
    February 19th, 2007 at 15:23 | #25

    I heard that the U.S. has declared war only twice for more than 200 “wars”

  26. Brian
    February 19th, 2007 at 16:10 | #26

    http://www.smh.com.au/news/national/costello-points-the-finger-at-hicks/2007/02/18/1171733612758.html

    Can anyone here interpret this news item:
    ———-
    “THE federal Treasurer, Peter Costello, says David Hicks could
    easily have killed Australian soldiers in Afghanistan – even though
    the US says Mr Hicks fled the battlefield before Australian forces
    had begun action there.”
    ———-
    Does the above text mean that:
    (a) Mr. Costello didn’t know Hicks was not there when he made the statement, or
    (b) He DID know Hicks was not there but Hicks could still have somehow killed Australian soldiers who were not there, or
    (c) Hicks could easily have killed Aussie soldiers if they HAD been there?

    Is Hicks supposed to be a marksman or are our Aussie soldiers supposed to be sitting ducks? Geez, the Talban have a hell of a problem getting ANY Aussie soldier in their cross-hairs, but Hicks could (according to Costello) do it easily.

  27. Razor
    February 19th, 2007 at 16:42 | #27

    JQ – yes, Hicks could be treated as a POW – whether or not that is reasonable is open to debate. Given that the Geneva Convention does not apply to either the Taliban or Al Queda, why exactly should captives of operations against these organisations be treated according to the Geneva Conventions? If the Genva Convention were applied, Hicks should have been summarily executed on the battlefield? Are we able to pick and choose which parts of the Conventions to apply? Only the nice parts???

    As for your assertion: “As regards his alleged crimes, there’s no obvious requirement for ADF forces to be in action.” That is a question of law for interpretation by a Judge. The risk, probably clearly identified by the Australian Government, is that an activist Judge (that the left is so fond of) would probably say that the Taliban were not the enemy of the Commonwealth at the time, therefore no case to answer – off you go Mahmood. The Australian Domestice legal system, designed for civilian peacetime is poorly suited to cope with international assymetric warfare, as we have seen with the Jihad Jack case.

  28. February 19th, 2007 at 16:52 | #28

    Razor,
    From that analysis the correct way to deal with an inadequacy in Australian law is to acquiesce in the indefinite detention overseas by an Australian citizen while a foreign power decides whether its law has the power to try him for a crime that may or may not have existed at the time he is alleged to have to have committed it.
    Is that your argument? If so, pardon me for not being convinced.

  29. Brian
    February 19th, 2007 at 16:55 | #29

    http://www.news.com.au/perthnow/story/0,21598,21250534-5005361,00.html

    (NEWS STORY}
    US ambassador Robert McCallum said
    “I’m always kind of surprised that those who view things from a perspective that is favourable to Mr Hicks are allowed to talk about whatever they care to and make whatever allegations they care to,” he said.

    “But Mr McCallum said when he spoke on behalf of the many American citizens traumatised by the September 11 terrorist attacks it was viewed as prejudicial.”

    “(We are told) we cannot talk about anything because it might prejudice the case,” he said.”
    ~~~~~~~~~~~~~
    Is the U.S. Ambassador right?

    (1) Can we prejudice the case against Hicks by talking about it?
    (2) Is it illegal in the U.S. or Australia to talk about the case?

    I thought it was ok to talk about any case without limitation up to the point when charges are actually laid.

  30. Brian
    February 19th, 2007 at 17:03 | #30

    Razor wrote:
    “As for your assertion: “As regards his alleged crimes, there’s no obvious requirement for ADF forces to be in action.â€? That is a question of law for interpretation by a Judge. The risk, probably clearly identified by the Australian Government, is that an activist Judge (that the left is so fond of) would probably say that the Taliban were not the enemy of the Commonwealth at the time, [...]

    It wouldn’t matter what sort of Judge assessed the case. The Taliban was not a declared enemy in any Proclamation. Does anyone know if they have YET been declared an enemy?

  31. Razor
    February 19th, 2007 at 17:30 | #31

    Andrew Reynolds – in the case of Hicks – yes! Let him rot! You can get your moral high horse, but that fact is he wanted to kill US and Australians if he got a chance. He needs to be punished severely for that.

  32. February 19th, 2007 at 17:40 | #32

    Brian,
    The case is in the US, so we can talk about it all we want, unless US law now applies in Australia. Oh, wait…

  33. February 19th, 2007 at 17:44 | #33

    Razor,
    So you say. Personally, I would prefer that a judge or a jury said it before he was convicted. He has not yet had the benefit of being able to say what he wants or defend himself in a court of law – or even face a committal hearing. The evidence on him has not been tested. We do not even yet know what he is accused of – although some drafts of the charge sheet have, after too many years, finally been released.
    No moral high horse, a simple fear of the power of an executive arm of government able to escape the scrutiny of the judicial.

  34. Brian
    February 19th, 2007 at 19:12 | #34

    Razor wote:

    “If the Genva Convention were applied, Hicks should have been summarily executed on the battlefield? Are we able to pick and choose which parts of the Conventions to apply? Only the nice parts???”

    I saw on the net something taht indicated that no prisoners are taken by the U.S. in Afghanistan because the Taliban do not wear uniforms and are not covered by the Geneva Conventions. It sounds unbelievable. Has anyone heard what’s going on there?

  35. February 19th, 2007 at 20:45 | #35

    It sounds very believable to me.

  36. melanie
    February 19th, 2007 at 21:09 | #36

    Brian, why does it sound unbelievable? Have you ever seen the video footage of US helicopter pilots blasting a couple of non-uniformed Vietnamese to smithereens? According to the soundtrack they must’ve be enemy combatants because they were running away!

  37. February 19th, 2007 at 22:06 | #37

    I can’t seem to find reports of Allied soldiers being taken prisoner by the enemy in Afghanistan.

    Gosh, perhaps none of our boys are surrendering?

    Does anybody find this unbelieveable?

  38. Razor
    February 19th, 2007 at 22:48 | #38

    I wouldn’t be letting myself get taken prisoner. Better to die fighting than having my head sawn off on video for the family and friends to watch.

  39. Jill Rush
    February 19th, 2007 at 23:01 | #39

    There are so many things wrong with what has happened to David Hicks that it is hard to know what is worst. However the assumption that he knew exactly what was going on is the first point of contention. This is not a part of the world which has a lot of English language services. It is very easy to be in this part of the world without knowing what was happening or that Australian troops had been committed to fight there. It would also be very difficult to escape alive if indeed there was that knowledge especially as if there was an escape from the Taliban there was always Al Quaeda, or the Northern Alliance or criminals. This is dangerous territory. We don’t know what the circumstances were at teh time as they have never been put to a court.

    As it is the evidence has been badly damaged by the amount of verballing that has occurred by our politicians anxious to support their actions. Politicians who asserted loudly and fervently that there were children thrown overboard to support a convenient fabrication.

    I cannot understand why he cannot be charged retrospectively in Australia but our leaders find that it is alright for the kangaroo court held by the USA to do so.

    There have always been charges that Australia could have laid against him. However the courts may not have found him guilty – that is why he hasn’t been brought back to face charges here.

    If things were not so bad in Guantanomo Bay however there would be greater access for visitors and for medical assessments by independent practitioners.

    There are those who are happy to have a fellow Australian treated in this way. That it breaches all standards of civilised behaviour won’t worry those who are unhappy with terrorists but fail to understand that abandoning the rules of civilised behaviour supports terrorism and its spread.

  40. February 20th, 2007 at 00:55 | #40

    “This is not a part of the world which has English language services…It would be very difficult to escape alive … if there was an escape from the Taliban there was always Al Quaeda, the Northern Alliance or criminals… This is dangerous territory.”

    .. Ummm… How did Hicks get there in the first place?

  41. Brian
    February 20th, 2007 at 10:04 | #41

    (No prisoners in Afghanistan?)

    Melanie wrote:
    “Brian, why does it sound unbelievable? Have you ever seen the video footage of US helicopter pilots blasting a couple of non-uniformed Vietnamese to smithereens? According to the soundtrack they must’ve be enemy combatants because they were running away!”

    No, I haven’t seen that footage.
    I feel sure there would have to be ~some~ prisoners taken by the allies in Afghanistan if the captives are considered valuable or easy to transport in the rugged terrain, but it seems unbelivable that the allies could be doing that without the journalists mentioning it if it’s standard policy to kill the wounded, the captives and the suspects because it was considered unsavory to do that in Viet Nam.

    http://www.law.umkc.edu/faculty/projects/ftrials/mylai/Myl_intro.html

    I could never understand the rejection of Viet Nam vets when they returned, but it’s just occurred to me that it may have been a conscious or sub conscious rejection of anyone involved in such a dirty war where *out of uniform* people – combatants and non-combatants, were killed at a high rate. They were of course, all ‘Viet Cong’ if they were dead – apart from the odd SNAFU like the My Lai incident where there were too many “women and kid V.C.” dead in the one spot.

    It sounds like Afghanistan is the same as Viet Nam – anyone who is dead and wearing traditional clothing (i.e. out of military uniform) is a terrorist and is therefore not protected by the Geneva Conventions. It looks like the millions of people in Afghanistan are between a rock and a hard place – everyone could wear a military uniform of some sort and get shot as a combatant – or not wear a military uniform and get shot as a terrorist.

    It would be good if the allies could do what they have to do and then get out of there ASAP, before 40 million residents get fed up with it and say the old Taliban government was better than getting shot at for year after year. I wonder how Australians would react if the Indonesian military came over and started shooting us for being either IN or OUT of uniform?

    Obviously ‘out of uniform’ people are not being shot randomly in Afghanistan because the body count is too low for that, but if there are too many Snafu’s it will start to add up.

    This brings me back to David Hicks and the various comments that I’ve seen in several places on the net that didn’t make sense to me (summary execution for being on the WRONG team – depending on who is pointing the gun). Yes, apparently he DID “get off lightly” by being taken prisoner. Still, that’s all water under the bridge now, and he must have a fair trial or be released because he’s not in Afghanistan.

  42. February 20th, 2007 at 10:32 | #42

    Brian #25

    “I heard that the U.S. has declared war only twice for more than 200 “warsâ€?”

    Wrong on every count. The US has declared was at least 5 times (Mexican American, Spanish American, War of 1812, WWI and WWII). Really the Civil War was effectively a declared war, and some form of congressional consent has accompanied many of our smaller actions.

    200 is also a ridiculous figure. Do you count a firefight as a war?

    The US does not declare war often because when we do we mean it. When we declare a war, we implicitly require of ourselves a formal declaration that it is over as well. Usually the butcher’s bill (in terms of what we inflict on/extract from the ‘enemy’) must be high before you can get explicit political agreement to stop fighting. It is remarkable to me that our declared wars usually end far worse for the opponent (large scale territorial loses for Spain and Mexico, total devastation and humiliation for Japan and Germany) than the undeclared ‘actions’. The sole exceptions that I can think of are 1812 (when we weren’t quite Rome yet) and WWI (the fallout from that peace was reminder to every President since that the American people expect a Roman style victory if they go to the trouble formally to declare war).

    Much better for our opponents in most cases to let the conflict die with a whimper. The trouble with declaring war is that you can’t weasel out of it later when you decide that you aren’t willing to beat the ever-living crap out of the society you are fighting to make it a politically persuasive victory. For instance, if we actually declared war in Iraq, our victory would be assured (even if we had to kill every last Iraqi to get it). As it is, it is better for us (morally) and the Iraqis (in every sense) that we haven’t backed ourselves into that political corner.

    This isn’t meant to seem like American chauvinism: it is, rather, a very frank assessment of our history. Kind of like Tactitus’ assessments of Rome.

    Ask the Japanese or the Germans.

    So all I am saying is to be careful about trying to hold the US up on some kind of technicality: there is a danger she just might oblige you.

  43. Brian
    February 20th, 2007 at 10:39 | #43

    Jill Rush wrote:

    “There are so many things wrong with what has happened to David Hicks that it is hard to know what is worst. However the assumption that he knew exactly what was going on is the first point of contention. This is not a part of the world which has a lot of English language services. It is very easy to be in this part of the world without knowing what was happening or that Australian troops had been committed to fight there. It would also be very difficult to escape alive if indeed there was that knowledge especially as if there was an escape from the Taliban there was always Al Quaeda, or the Northern Alliance or criminals. This is dangerous territory. We don’t know what the circumstances were at teh time as they have never been put to a court.”

    There are two versions of the events – Hicks’ version and the Prosecution’s.

    If Hicks’ version is proved, he is innocent.
    Lets suppose he DID train with various organizations and he DID intend to fight alongside the Taliban government troops if the country was invaded BUT was shocked by Sep 11th and DID make the quick trip across the border to pick up his things and get outa there BUT was hemmed in and forced to stay with the other trainees and follow Taliban orders and he DID finaly make his break to return hom. All of that was legal.

    If the prosecution’s version is proved:
    * He trained in al-Qa’ida and other camps.
    * He intended to support the Muslim Taliban government if Afghanistan was invaded.
    * He followed the trainer’s instructions and drew pics of a deserted embassy.
    * He eagerly went back to fight when he heard about the imminent invasion.
    * He Guarded a tank at the airport
    * He went to the front to fight but found a rife was no match for Northern Alliance tanks and retreated.
    * He did squib out and tried to go home when he knew they were overpowered.
    * He did tell the cab driver what he had been doing.

    All of that is STILL legal in REAL law. It’s only “illegal” in the (unlawful) military commission lore.

    If Hicks had not been captured and he was still there when Australian troops finally arrived in Afghanistan, he would have been in real trouble if it was proved that he had sided with any declared enemy of Australia. My guess is that (with his sort of pesonality) AND being an Aussie, he would have left before ever doing that because his ‘indoctrination’ and pride in Australia would have easily overridden his more recent indoctrination.

    The vast majority of al-Qa’ida and other similar trainees are obviously not terrorists because there are too many of them for that to be possible.
    Personally I think the average REAL terrorist keeps his head down and his mouth shut and does not go around broadcasting terrorist intentions in writing.

    [See this news report on the profile of terrorists by an ex CIA man and psychiatrist]
    “The report notes, “There is little evidence
    of overt compulsion. The extremists appear
    rather to rely on development of individual
    commitment, group bonding and solidarity”.

    http://www.theaustralian.news.com.au/story/0,20867,21246681-28737,00.html

    As it is the evidence has been badly damaged by the amount of verballing that has occurred by our politicians anxious to support their actions. Politicians who asserted loudly and fervently that there were children thrown overboard to support a convenient fabrication.

    I cannot understand why he cannot be charged retrospectively in Australia but our leaders find that it is alright for the kangaroo court held by the USA to do so.

    There have always been charges that Australia could have laid against him. However the courts may not have found him guilty – that is why he hasn’t been brought back to face charges here.

    If things were not so bad in Guantanomo Bay however there would be greater access for visitors and for medical assessments by independent practitioners.

    There are those who are happy to have a fellow Australian treated in this way. That it breaches all standards of civilised behaviour won’t worry those who are unhappy with terrorists but fail to understand that abandoning the rules of civilised behaviour supports terrorism and its spread.

  44. Brian
    February 20th, 2007 at 10:44 | #44

    ERROR!

    Last 5 paragraphs above were from previous poster

  45. February 20th, 2007 at 15:27 | #45

    Well said Andrew. It boggles my mind that people justify not charging Hicks because he’s guilty! Does that mean we only use the criminal justice system for innocent people? Who makes the initial determination so that we can have our mock show-trial? Oh, I remember. The government. Yep — we should trust them. Sigh.

  46. Jill Rush
    February 20th, 2007 at 16:36 | #46

    Steve at the pub – it is often easy to travel into a dangerous situation not realising how dangerous it is. However Afghanistan has few roads, has limited technology ( this was not as recent as the Taliban but they didn’t help) and the place is set up like a series of forts. David Hicks could travel there but it doesn’t override the basic contention that information was not freely available. Even in Australia there are plenty of people who have no idea what is going on as they have no interest, never read a paper and never watch the news. Nothing so far has suggested that David Hicks would be a big newspaper reader – even if he could find one in English or even if he had the money to buy them. TV and radio are in Farsi or Arabic and rare as well. It is a big and very convenient assumption that he knew as well as residents of Australia what was happening. But we don’t know as he has never had the opportunity to tell anyone apart from his lawyers, the High commission and the military. You may believe that you only need to hear one side of a story to know what happened but history suggests that one sided views can be partisan, inaccurate and ignorant. Not something that you would aspire to I am sure.

  47. February 20th, 2007 at 19:27 | #47

    So Jill, the “one-sided” stuff about him being a gun nut & deadbeat dad might not be true after all?

  48. February 20th, 2007 at 20:08 | #48

    Steve,
    I have not yet seen a situation where the accusation of being a “gun nut & deadbeat dad” mean that indefinite detention without charge or trial can be justified.
    Can you think of one?

  49. February 20th, 2007 at 20:34 | #49

    he is not locked up for that Andrew. He is locked up for siding with the enemy. Rather more serious.

    However, if there is an obligation to give equal consideration to “both” sides of a story, then I presume there is an alternative explanation to his fixation with high-powered weaponry and why he walked out on his kids?

    Other than he is a gun nut & deadbeat dad that is.

  50. Brian
    February 21st, 2007 at 00:35 | #50

    steve wrote:

    “he is not locked up for that Andrew. He is locked up for siding with the enemy. Rather more serious.

    In the years preceding his capture it was impossible for Hicks to know that Australia would, AFTER his capture in December 2001, become an enemy of the religious Taliban government of Afghanistan. We didn’t know ourselves.

    Does anyone here know when the Taliban became our enemy? I certainly don’t.

  51. Hal9000
    February 21st, 2007 at 09:02 | #51

    “fixation with high-powered weaponry” + “gun nut”

    Bit rich coming from someone who boasts of having a .308 and an ample supply of ammunition ready for when Hicks comes back to Australia, SATP. Most of us firearm owners quietly go about our business. It takes a special kind of ego to boast about having one ready for an illicit purpose.

    “Does anyone here know when the Taliban became our enemy?”

    From the Wikipedia article on the SASR: “1 Squadron arrived in Afghanistan in November 2001″ Hicks was captured on 9 December 2001. In terms of Hicks’s liability for a treason offence under subsection (f) cited by Prof Q, it would need to be shown he was both aware of this and intentionally aided the enemy following the arrival of Australian forces in the theatre. Hicks’s story is that he attempted to flee Afghanistan when he learnt of the impending international intervention, but was prevented from doing so. There may be an arguable case, but the prospects of a fair trial of the matter in Australia have been severely damaged by prejudicial comments and actions of the Commonwealth and its ministers.

  52. Brian
    February 21st, 2007 at 10:13 | #52

    Hal9000 wrote:
    “In terms of Hicks’s liability for a treason
    offence under subsection (f) cited by Prof Q,
    it would need to be shown he was both aware
    of this and intentionally aided the enemy
    following the arrival of Australian forces
    in the theatre.
    —–
    AND an enemy had been named by Proclamation.

    No one here has yey said if that’s ever been done. I assume it must have been, but if it hasn’t, then we would have a problem in charging any Australian Taliban supporter with treason.

  53. Razor
    February 21st, 2007 at 11:18 | #53

    Once the Yanks have finished with him, I hope they turn him over to the Indians. He has admitted to firing on Indian troops.

  54. February 21st, 2007 at 12:16 | #54

    The Indians will have a realistic attitude toward those who shoot at them. Faced with the possibility of being extradited to India to face the music, Hicks and his barrackers will be spontaneously overcome with a desire for him to remain at the (previously) evil Guatanamo Bay facility.

    It is up to Hicks to make sure he is not siding with the enemy, “ignorance” that his cronies were opposing Australian troops isn’t sufficient defence for siding with the enemy. He picked his team, he wears the consequences.

    Hal 9000, I “boast” of having a .308 & ammunition “ready for Hicks’ return”? Are you drinking or something? Grow up moron.

  55. Brian
    February 21st, 2007 at 13:11 | #55

    Does it make any difference if Hicks told the truth in his letter when he said it was quite legal in Pakistan? to accompany soldiers on the border and assist them *AND* that this authority was printed on his Visa?

    Wouldn’t it be the same as an Australian citizen being authorized on his or her American visa to assist THEIR border guards and fire warning shots over the heads of Mexicans crossing illegally into the U.S? Would Australia extradite such a citizen to Mexico in that case?

    Ray

  56. Razor
    February 21st, 2007 at 13:33 | #56

    Does it make any difference?

    Hold on, and I’ll think about that. . . .

    Nope!

  57. Bemused
    February 21st, 2007 at 14:06 | #57

    SATP think back through the boozy fog to late January …

    “steve at the pub Says:
    January 21st, 2007 at 9:13 pm
    Jill Rush: I have the skills to fix David Hicks. I can hit 5 gallon drum at several hundred metres every shot with a .308, Hicks will be no problem.
    jquiggin Says:
    January 23rd, 2007 at 9:02 am
    SATP, I’ll take the comment on Hicks (and a similar one previously) as silly rhetorical bluster rather than a serious threat. But apart from being offensive it’s completely derailed the discussion into the kind of meta-flamewar I try to avoid. So, anything more like that (or any backchat on this ruling) and you’ll be banned.”

    Prof Q was rather kinder than others who saw your comment as a clearly implied threat or red-neck ranting.

    I think Hal9000 is owed an apology.

  58. February 21st, 2007 at 14:41 | #58

    You think wrong Bemused. I apologise only for wronging someone. I should not have used a very apt word in this forum, will agree with that.

    Commenters who see the statement you copy as “red neck ranting” mix in rather narrow circles and ought to get out more, learn that their opinion ain’t necessarily the ONLY opinion, the RIGHT opinion, nor the most moral, and furthermore they would learn that people whose opinion differs from theirs need not be wrong.

    Hitting a 5 gallon drum at several hundred metres is not exactly sharpshooting, stating that I am able to do it, and that it is what traitors deserve, cannot possibly (except by the most crazed of dull witted rednecks) be extended to saying I have the hardware stacked up especially for the return home of the most prodigal of unrepentant prodigals.

    Perhaps you are unable to make that distinction?

    Supporting capital punishment for traitors (in certain circumstances delivered summarily) is a political/legal position, NOT a stated desire to break laws.

    Perhaps you are unable to make that distinction?

    Hicks is a national disgrace, his demise would be no loss to Australia. Simple statement, nothing more to explore, end of discussion. If you continue, it’ll be without me.

  59. February 21st, 2007 at 14:53 | #59

    SATP,

    The Howard/Bush/Blair lies on Iraq, Hicks, the GWOT and other fantasies are falling apart by the hour.

    By your own logic, it is up to you to make sure you are not siding with the enemy, “ignorance� that you believe the Howard lies isn’t sufficient defence for siding with the enemy. You pick your team, you wear the consequences. At the moment, you, like Howard, are sounding extremely foolish.

    I am STILL waiting for you (and Howard) to articulate a vision for Australia’s role in Iraq that you would consider “victory” or any other meaningful objective.

  60. Jill Rush
    February 21st, 2007 at 17:20 | #60

    I have no opinion as to whether David Hicks is a deadbeat dad or a gun nut. Certainly there have been stories printed that suggest his ex took the kids and left with no further contact – however this is not relevant. I probably wouldn’t like him very much and I would be as wary of him as of someone like SATP – I certainly have little time for mysogonists who become muslims as a way of putting women in their place. However those things are not the point.

    Whether I like someone or not they are still entitled to have due legal process established over hundreds of years. Prisoners who have no ability to be represented in a fair court should not be verballed by Ministers of the Crown especially the Attorney General who has a responsibility to uphold the rule of law.

    I have always believed that anger clouds thinking. Rather than rush to solutions to assumed problems it is better to look at the context and the evidence without the emotion. Of course this is not possible if your mind is made up – the evidence is just an inconvenience and makes an angry person even angrier. There appears some evidence of this on this thread.

    The David Hicks case is very political and if he was guilty as charged he would have been charged much sooner, in a proper court, and not have the USA military rely on retrospective laws. If it looks like it is unfair – it probably is. Five years without trial is clearly unfair in a functioning democracy.

  61. February 21st, 2007 at 18:37 | #61

    Hear, Hear, Jill. Even guys who wander around Port Arthur with a semi-automatic weapon are accorded a fair trial. No matter what he is alleged to have done he deserves at least that.
    This whole thing sets a terrifying precedent. The US president can simply create a new category of alleged villany and then lock up people he and his government categorise as belonging to that category without judicial oversight.
    Very scary indeed. Who knows, owners of .308 calibre ammunition might be next.
    .

    First they came for the Jews
    and I did not speak out
    because I was not a Jew.
    Then they came for the Communists
    and I did not speak out
    because I was not a Communist.
    Then they came for the trade unionists
    and I did not speak out
    because I was not a trade unionist.
    Then they came for me
    and there was no one left
    to speak out for me.

    Should we replace Jew with Muslim in the first line?

  62. still working it out
    February 21st, 2007 at 19:40 | #62

    Growing up in Australia, the holocaust used to be literally incomprehensible to me. I could not understand why people would do what they did. Could not understand why anyone would want to do the things that were done to the Jews.

    Today I am sad to say that is no longer the case. Watching the politics of xenophobia play out its all too clear how it happened. As someone with a muslim background and lots of muslim family members and friends it worries me all the time. I used to think that the long and extremely successful period immigration from Europe, then Southern Europe then finally from the entire world with the end of the white Australia policy would provide an anti-dote to us leading down this path. But I recently learnt a surprising fact that has made me realise this is not true.

    Guess which nation was the best place to be a Jew in Europe prior to Hitler, had very high rates of inter-marriage and faced less discrimination than anywhere else in Europe.
    Germany.

    Let’s hope enough Australians agree with Andrew Reynolds that this period in our history turns out to be an aberration rather than the norm.

  63. frankis
    February 21st, 2007 at 19:54 | #63

    Australia’s ministers of the crown stand for no principles in the case of Hicks. They’re desperately hoping that the Australian voter will continue to not hold them accountable for anything meaningful, or to point them out and say “There, children, are the fellows who outsourced the governance of Australia to the dumb far right wing of America’s Republican party, and who still get away with it while billing us for their parliamentary “services”. Weep for our country”.

    Hicks has to be treated as an unperson because these grovellers don’t have the courage to stare down a drug-addled, lying prick like Dick Cheney.

  64. Brian
    February 22nd, 2007 at 04:17 | #64

    Throughout this Hicks saga it has been hard to find articles or comments that are factual. I realise that a large number of the facts were not available, but you’d think that we’d have more writers in our midst who had the ability to separate fact from speculation.

    It’s one thing to use the facts in a biased way, but it’s another thing altogether to bugger-up an article, report or comment by including false information and speculation that is not shown to be speculation – like historians are taught to do.

    The thing about it is that lots of people with reasonable intelligence can SEE the errors, lies and speculation but large numbers of people keep doing it anyway.

    After Hicks is released I’d like to see a movie made, which brings together all the known facts in the form of a mock trial – where all parties are provided with an opportunity to agree on certain evidence (and the way it is presented) and then argue about the rest.

    Such a ‘trial’ could easily resolve many of the questions that have been raised along the way. At the moment I have no idea how many there are, or which are the most important, but here’s a few to kick off with:
    * The issue of treason
    * When did Australia declare certain groups terrorists
    * What activities are illegal in relation to terrorist groups?
    * At what point could an Australian in Afghanistan breach our law by defending the Taliban government?
    * What were the penalties for all the allegations?
    * What evidence is admissable?
    * Did Hicks make up stories about SOME of his activities?
    * Did the people who claimed Hicks translated a terorist manual, (when he couldn’t speak Arabic) make OTHER allegations?
    * Was the U.S. embassy ‘spying’ job just an exercise? [Closed 12 years]
    * Did Hicks’ visa REALLY allow him to assist troops?
    * Was it REALLY illegal in India for Hicks to assist troops if his Visa said it was legal?
    * Could HIcks have won a medal from the allies for helping to stop ethnic cleansing of Muslims in Kosovo if he had not arrived late?
    ….. and much more.

  65. Hal9000
    February 22nd, 2007 at 10:42 | #65

    Brain “AND an enemy had been named by Proclamation.”

    No, Brian. Note the ‘or’ at the end of subsection (e). Proclamation is an alternative, not a necessary condition for subsection (f) to be deployed.

    SATP. If my memory is faulty, I apologise. I recall, however, an exchange some time back where you did indeed boast about possession of a firearm in .308 calibre ready for use, with plenty of ammo, in connection with a discussion of Hicks’s possible return. As I say, if I have this wrong I do apologise. If however I have it correctly, and I’ll search for the exchange, your ‘moron’ comment is clearly a reflexive reference.

  66. Brian
    February 22nd, 2007 at 11:32 | #66

    >>>Hal9000 wrote:
    >>>“In terms of Hicks’s liability for a treason
    >>>offence under subsection (f) cited by Prof Q,
    >>>it would need to be shown he was both aware
    >>>of this and intentionally aided the enemy
    >>>following the arrival of Australian forces
    >>>in the theatre.
    —–
    >>Brian wrote:
    >>AND an enemy had been named by Proclamation

    I disagree. No Australian citizen can commit treason if Australia is not at war OR an enemy has not been proclaimed.
    In Hicks’ case, as far as I know, the Taliban government and al-Qa’ida were not proclaimed enemies before Hicks left Afghanistan, and Australia was definitely not at war.

    >No, Brian. Note the ‘or’ at the end of subsection (e). Proclamation is an alternative, >not a necessary condition for subsection (f) to be deployed.

  67. Hal9000
    February 22nd, 2007 at 14:49 | #67

    Brian, sucbection (f) makes it the offence of treason to intentionally support “an organisation;
    that is engaged in armed hostilities against the Australian Defence Force”. Disagree or not, that is what the law says. There was no proclamation, and in your view “Australia was definitely not at war”, but the SAS Regiment was engaged in ‘armed hostilities’ against the Taliban for some weeks in November-December 2001 while Hicks was in Afghanistan. This triggers subsection (f) regardless of the absence of a proclamation designating the Taliban as an enemy, or a declaration of war.

    IMHO, the intentionality issue is likely to prove the stumbling block to a prosecution for treason under subsection (f). The lack of a proclamation merely rules out a prosecution under subsection (e).

  68. Brian
    February 22nd, 2007 at 17:40 | #68

    I see now. (e)(i) & (ii) are to be read separately from (f)(i) & (ii).

    Yes, if Hicks had been assisting an organization that was engaged in armed hostilities he would be guilty of treason – however he did not for a few reasons:
    (1) He didn’t fire a shot.
    (2) He only encountered the Northern Alliance tanks – not the ADF.
    (3) He was incapable of forming an intent to commit a crime because he didn’t know the SAS was there.

    Then we have the question of “hostilities”. Is self defence by the Taliban government considered a “hostile” action or a “defensive” action?

  69. Hal9000
    February 22nd, 2007 at 20:21 | #69

    1) Absolutely correct. This would be a major hurdle to overcome in any prosecution, since it lends credence to Hicks’s defence.
    2) Irrelevant, sadly. The fact that the Taliban were engaged in combat with Australian forces would be enough here.
    3) The prosecution would need to establish otherwise. This would be pretty difficult, absent the coerced and hearsay evidence (withheld from the defence for security reasons) likely to be adduced in Guantanamo, which is of the kind that could of course establish that Mother Teresa and the Dalai Llama were AQ operatives (heavy irony intended).

    Re ‘hostilities’ see 2) above. Wiktionary gives as definition of ‘hostilities’ ‘acts of war’, ‘war’ being defined as ‘A conflict involving the organized use of arms and physical force between countries or other large-scale armed groups.’ So ‘hostilities’ covers both the aggressor and the defender.

  70. Brian
    February 22nd, 2007 at 22:08 | #70

    Hal9000 wrote:
    “2) Irrelevant, sadly. The fact that the Taliban were engaged in combat with Australian forces would be enough here.”

    No there were two separate fights:
    (1) Taliban -v- U.S. and ADF, and
    (2) Hicks and Taliban -v- Northern Alliance (a separate fight)

    He didn’t actually assist the Taliban against the Northern Alliance near 9th Nov when he saw the tanks because of a lack of opportunity but he (allegedly) had an intention to assist, but that intention alone was not an offence.

    Even if he HAD assisted the Taliban against the Northern Alliance (other Afghans) it was not an offence because the ADF was not involved and no Australian was at risk.

  71. Brian
    February 23rd, 2007 at 00:50 | #71

    Hal9000 wrote:
    “Re ‘hostilities’ see 2) above. Wiktionary gives as definition of ‘hostilities’ ‘acts of war’, ‘war’ being defined as ‘A conflict involving the organized use of arms and physical force between countries or other large-scale armed groups.’ So ‘hostilities’ covers both the aggressor and the defender.”
    —————-

    Brian wrote:
    See a dictionary version of ‘hostilities’. f the dictionary is correct and ‘hostilities’ has a definite legal meaning, then ‘hostilities’ did not exist between Australia and the Taliban government when Hicks was in Afghanistan unless the Act provided it’s own special definition.

    http://www.thefreedictionary.com/hostilities
    n. pl. 1. a legal state created by a declaration of war and ended by official declaration, during which the international rules of war apply.
    We have showed ourselves generous adversaries . . . and have carried on even our hostilities with humanity.
    - Atterbury.
    2. acts of overt warfare
    ——————————

  72. Hal9000
    February 23rd, 2007 at 09:57 | #72

    Brian – you need to keep the text of the statute in the forefront. It reads in full

    (f) engages in conduct that assists by any means whatever, with intent to assist:
    (i) another country; or
    (ii) an organisation;
    that is engaged in armed hostilities against the Australian Defence Force.

    In terms of armed hostilities, the definition you cite gives ‘acts of overt warfare’ as an alternative to the legal declaration. Using the same dictionary, ‘warfare’ is defined as:

    1.
    a. The waging of war against an enemy; armed conflict.

    An ‘enemy’ is defined as:

    1. One who feels hatred toward, intends injury to, or opposes the interests of another; a foe.
    2.
    a. A hostile power or force, such as a nation.
    b. A member or unit of such a force.
    3. A group of foes or hostile forces.

    And conflict is defined as:

    1. A state of open, often prolonged fighting; a battle or war.

    We can go into the individual terms here ad infinitum, but I don’t think you are arguning that Australian forces were engaged in combat with some other force that was in no way related to the Taliban. What was going on in Afghanistan in November 2001 was therefore, in terms of the statute, armed hostilities with the Taliban, as the dictionary definition you have provided makes perfectly clear. Whether Hicks was on the same front as Australian forces, or whether Australians were directly endangered by Hicks is not relevant here.

    Guarding a tank was conduct that could be characterised as assisting the Taliban, within the terms of the statute, ‘by any means whatsoever’.

    Whether or not Hicks was engaged in actual fighting with Australian forces is, as has been seen, not relevant to whether this charge would apply (although had he been, the case for the prosecution would have been a much easier one to make out). He may have been (and this would need to be established by the prosecution) engaged in conduct that assisted (with intent to assist) the Taliban. Presumably if Hicks had not been guarding it, another Taliban fighter would have, so absent Hicks the Taliban would have been one fighter weaker. The Taliban were ‘an organisation … that is engaged in armed hostilities with the Australian Defence Force’.

    As I say, in any case brought in Australia, the prosecution would need to prove intent and abide by rules of evidence that would rule out coerced testimony and allow the defence to cross-examine witnesses. The defence would also be able to rely on the unconscionable delay, well-supported claims of torture and extrajudicial cruel and unusual punishment, inadequate access to legal counsel, failure to provide consular assistance, and the statements of politicians to argue for the case to be dismissed on procedural fairness and prejudicial grounds. These are the reasons, I’m sure, why no such case would ever be brought, and not the technical grounds of definitions of ‘hostilities’ and whether or not the Taliban was engaged in them.

  73. Brian
    February 23rd, 2007 at 12:51 | #73

    Hicks was incapable of committing the crime of treason against Australia until “hostilities” (open warfare) broke out – whether it was done via a declaration of war or via a proclamation of an enemy (the Taliban) or by some other means – such as flags or insignia. Without some sort of announcement by Australia, there can be no treason.

    Yes, the guarding of a tank could be construed as a crime if he did it with intent to assist the Taliban against Australia, if it occurred during a time when open warfare existed between Australia and the Taliban, but it occurred much earlier – in late September or early October – when unidentifiable planes were dropping bombs from a great height.

    It wasn’t until later, on 28th October, that a ground assault was made by 250 airborne Americans, who only just escaped with their lives when they found out “how fierce the Taliban fighters were”. That invasion was kept secret from the media, so Hicks had no way of opposing Australia or any other Western force until some date AFTER 28th October.

    According to the allegations, Hicks had to go LOOKING for somewhere to fight, and he found it on about 9th Nov 2001, but he never got into combat. After that 2-hour window of opportunity he spent the rest of his time in Afghanistan running and hiding from the advancing Northern Alliance – not assisting “Australia’s enemy”.

    I think Hicks would acknowledge now that it was a very bad idea to get involved with terrorist training organizations, after he failed to get into the ADF ‘for excitement’, because it has been common knowledge for decades that there’s some pretty bad bastards amongst them who have bombed and shot civilians, including their own people, however as far as Afghanistan goes, he appears as pure as the driven snow.

    I think Hicks’ reputation in Australia from here on depends a lot on what he *actually* thought about Sept 11th. There’s conflicting evidence about that.

  74. Brian
    February 23rd, 2007 at 15:26 | #74

    Hal9000 wrote:
    “As I say, in any case brought in Australia, the prosecution would need to prove intent and abide by rules of evidence that would rule out coerced testimony and allow the defence to cross-examine witnesses.”

    Brian wrote:
    Yes, if Hicks had actually DONE anything bad in Afghanistan – after Australia commenced open hostilities against the Taliban government, but he apparently didn’t do ANYTHING to harm Australia. If he had, someone would be saying what it was by now.
    It would be a bit silly if the prosecution claimed that Hicks “guarded a Taliban tank” before open conflict began. The only penalty would be for the prosecutor – getting demoted or sacked for incompetence.

    Hal9000 wrote:
    “The defence would also be able to rely on the unconscionable delay, well-supported claims of torture and extrajudicial cruel and unusual punishment, inadequate access to legal counsel, failure to provide consular assistance, and the statements of politicians to argue for the case to be dismissed on procedural fairness and prejudicial grounds. These are the reasons, I’m sure, why no such case would ever be brought, and not the technical grounds of definitions of ‘hostilities’ and whether or not the Taliban was engaged in them.”

    Brian wrote:
    We know torture has been committed and is STILL being committed every day, and we have good reason to believe Hicks’ old claims that he was tortured viciously in the early years (because of stream of evidence and the U.S. Administration’s own admissions) but as you say, evidence gathered via those means is useless in an Australian Court.

    You could easily be right about a Treason case being chucked out for the reasons you’ve presented, but I cannot imagine Hicks’ lawyers bothering with that when they know they can win easily anyway with the available evidence. I assume that Hicks’ lawyers will be suing a few people and bring a lot of the facts out AND clear Hicks’ name (to a certain extent) at the same time.

  75. Hal9000
    February 23rd, 2007 at 17:00 | #75

    Yes that’s an interesting issue Brian, and one beyond my competence to assess. Certainly Howard, Downer and the rest have made any number of defamatory comments causing assessable damage to Hicks. I wonder whether they have any legal fig leaf to hide behind, eg qualified privilege relating to their role as ministers of the crown? It never seems to stop politicians suing each other, so perhaps not.

    BTW, I should have added to the list of legal disqualifications above the illicit monitoring of Hicks’s communications with his legal advisers.

  76. pseudonym (econowit)
    February 23rd, 2007 at 17:28 | #76

    The main issue is Hicks is innocencent. They have had in excess of 5 years to convict him and they have not. So he is presummed innocencent. Conversely, in many authoritarian regimes the prosecution case is, in practice, believed by default.

    http://en.wikipedia.org/wiki/Presumption_of_innocence

    Bush and The Rodent seem to be adopting an authoritarian modus operandi.

  77. Brian
    February 23rd, 2007 at 18:17 | #77

    Talking about incompetence – everything contained in this thread is beyond my competence to assess properly, but notwithstanding that, I think that the lawyers involved with the Australian government’s handling of the matter and the politicians who have legal qualifications who have commented publicly, had a responsibility to be more factual, but collectively they failed to do that unceasingly, although I’ve noticed that they appear to have stopped doing it very recently.

    If a man is accused of being a serial killer it might be ok for politicians to refer to him repeatedly for five years as a “suspected serial killer” – even if he hasn’t been charged with a series of murders. If it *IS* ok, then it might have been alright to refer to Hicks as a “suspected terrorist” if he had been accused of a “terrorist act” but as far as I know he hasn’t been. He doesn’t appear to have “terrorised” anyone or lobbed any bombs at anyone.

    Another thing that was wrong was (for qualified lawyers) was to keep saying “WHEN he is convicted he will serve his sentence in Australia”.

    Another error by lawyers in politics (who know better) has been the repeated mention of outlawed organizations that have been labelled “terrorist groups” AFTER Hicks was captured. The failure to mention that some of his activity which was associated with those groups was in fact legal for an Australian citizen travelling abroad.

    It now seems that the “al-Qa’ida member” allegation was a lie, and that Hicks was never a member of that group at all, but he (and a bunch of other religious students) were merely trained by sub-contractors who happened to be al-Qa’ida members who were employed by the Taliban religious organization in Pakistan. In any case it was still legal in Australia for him to be trained by them or to join their group as a member.

    I noticed in today’s news that Prince Harry was “over the moon” when he learned that he was permitted to go to Iraq (presumably to “kick butt” and stop the civil war) which is ALL called terrorism nowadays. That sort of thing wasn’t terrorism when George Washington did stuff, but it’s all terrorism now. It’s the same in Afghanistan – all Afghans without a military uniform are terrorists or potential terrorists. If they’re DEAD then they were definitely terrorists, unless they were toddlers.

  78. Brian
    February 23rd, 2007 at 18:31 | #78

    pseudonym (econowit) wrote:

    “The main issue is Hicks is innocencent. They have had
    in excess of 5 years to convict him and they have not.
    So he is presummed innocencent. Conversely, in many
    authoritarian regimes the prosecution case is, in
    practice, believed by default.

    http://en.wikipedia.org/wiki/Presumption_of_innocence

    Bush and The Rodent seem to be adopting an
    authoritarian modus operandi.
    ~~~~~~~~~~~~~~

    Both systems look ok to me (adversorial and inquisitorial). In the English system both sides are EXPECTED (or have a duty) to “fight like dogs”, although I’ve never quite understood why anything more than the facts were required.

  79. Brian
    February 23rd, 2007 at 18:44 | #79

    pseudonym (econowit) wrote:

    “in many authoritarian regimes the prosecution case is, in practice, believed by default.”

    Sorry, I got sidetracked with my previous reply.
    Yes, that’s very bad- having “guilt by default” laws.
    Now THAT is a good enough reason to conquer a country if you’ve got the might. It’s what the British used as an excuse.

  80. derrida derider
    February 27th, 2007 at 15:01 | #80

    That’s an interesting point about the defamation. It’s another reason that Howard will want him convicted of anything by any means.

    I reckon the deal will go thus:

    - they’ll offer a “generous” plea bargain which gives him a short prison sentence (long enough until after the election’s over, though), to be served in Oz. If Hicks is well advised he’ll accept it. But the conviction is all that’s needed to stop him suing (both here and in the US) and also stops him selling his story to the papers (proceeds of crime and all that). In fact he’ll have a control order on him which will stop him talking to any journos anyway.

    - If he doesn’t accept, they’ll have a doozy of a show trial which will paint him as an uber-terrorist. The defence will be crippled (“no you can’t see that evidence – national security”) and the prosecutor will put Vyshinsky to shame. The rigged bench will give him a really long jail sentence in keeping with that conviction. That will serve to keep him from talking too.

  81. Brian
    February 27th, 2007 at 21:01 | #81

    derrida derider wrote:

    “That’s an interesting point about the defamation.
    It’s another reason that Howard will want him
    convicted of anything by any means.”

    I reckon the deal will go thus:

    - they’ll offer a “generous� plea bargain which
    gives him a short prison sentence (long enough
    until after the election’s over, though), to be
    served in Oz. If Hicks is well advised he’ll
    accept it. But the conviction is all that’s
    needed to stop him suing (both here and in the US)
    and also stops him selling his story to the
    papers (proceeds of crime and all that). In
    fact he’ll have a control order on him which
    will stop him talking to any journos anyway.”
    ~~~~~~~~~~~~~~~~

    Brian:
    Hicks probably won’t be found guilty of committing any crime under Australian law, or Afghan law or American law, and I don’t think “Gitmo lore” in Cuba counts. In any case there would be a long queue of QC’s waiting for someone to lay charges against Hicks for making money out of publishing a book about alleged crime because it would provide the perfect opportunity to expose more of the truth.

    - If he doesn’t accept, they’ll have a doozy
    of a show trial which will paint him as an
    uber-terrorist. The defence will be crippled
    (â€?no you can’t see that evidence – national
    security�) and the prosecutor will put
    Vyshinsky to shame. The rigged bench will
    give him a really long jail sentence in
    keeping with that conviction. That will serve
    to keep him from talking too.

    Brian:
    I think Cheney gave us a clue recently when he referred to the Judge having to decide whether to accept the charges and proceed to trial. Personally I think the deal was made by Howard in January to release him without charges ever being officially laid. We are only watching theatre.

  82. Sheilah Gaffe
    July 20th, 2008 at 15:17 | #82

    Isn’t the point really that when Hicks went to Afghanistan the coalition of the willing were not at war with the Taliban? The fact that he was subsequently caught up in an invasion whilst serving in the legitimate forces of the country in which he resided doesn’t really seem to constitute any crime at all.

    On the other hand, if the charge had been just being dickhead, he would have gone to gaol for a very long time – along with a significant number of our political masters.

Comments are closed.