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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.

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  1. Hal9000
    February 21st, 2007 at 09:02 | #1

    “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.

  2. Brian
    February 21st, 2007 at 10:13 | #2

    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.

  3. Razor
    February 21st, 2007 at 11:18 | #3

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

  4. February 21st, 2007 at 12:16 | #4

    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.

  5. Brian
    February 21st, 2007 at 13:11 | #5

    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

  6. Razor
    February 21st, 2007 at 13:33 | #6

    Does it make any difference?

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

    Nope!

  7. Bemused
    February 21st, 2007 at 14:06 | #7

    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.

  8. February 21st, 2007 at 14:41 | #8

    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.

  9. February 21st, 2007 at 14:53 | #9

    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.

  10. Jill Rush
    February 21st, 2007 at 17:20 | #10

    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.

  11. February 21st, 2007 at 18:37 | #11

    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?

  12. still working it out
    February 21st, 2007 at 19:40 | #12

    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.

  13. frankis
    February 21st, 2007 at 19:54 | #13

    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.

  14. Brian
    February 22nd, 2007 at 04:17 | #14

    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.

  15. Hal9000
    February 22nd, 2007 at 10:42 | #15

    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.

  16. Brian
    February 22nd, 2007 at 11:32 | #16

    >>>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.

  17. Hal9000
    February 22nd, 2007 at 14:49 | #17

    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).

  18. Brian
    February 22nd, 2007 at 17:40 | #18

    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?

  19. Hal9000
    February 22nd, 2007 at 20:21 | #19

    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.

  20. Brian
    February 22nd, 2007 at 22:08 | #20

    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.

  21. Brian
    February 23rd, 2007 at 00:50 | #21

    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
    ——————————

  22. Hal9000
    February 23rd, 2007 at 09:57 | #22

    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.

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

    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.

  24. Brian
    February 23rd, 2007 at 15:26 | #24

    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.

  25. Hal9000
    February 23rd, 2007 at 17:00 | #25

    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.

  26. pseudonym (econowit)
    February 23rd, 2007 at 17:28 | #26

    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.

  27. Brian
    February 23rd, 2007 at 18:17 | #27

    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.

  28. Brian
    February 23rd, 2007 at 18:31 | #28

    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.

  29. Brian
    February 23rd, 2007 at 18:44 | #29

    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.

  30. derrida derider
    February 27th, 2007 at 15:01 | #30

    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.

  31. Brian
    February 27th, 2007 at 21:01 | #31

    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.

  32. Sheilah Gaffe
    July 20th, 2008 at 15:17 | #32

    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.

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