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Monday message board

April 2nd, 2007

Although I’m still on break, it’s time once again for the Monday Message Board. As usual, civilised discussion and absolutely no coarse language, please. Any topic at all, but I imagine people will have something to say about the David Hicks case.

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  1. melanie
    April 2nd, 2007 at 20:14 | #1

    Wow! That took forever.

    I’m taking up the Hicks cue. Who among us can possibly believe that, given Downer’s announcement some months ago that Hicks would be home before Christmas, the thing was not a political fix? Those (like Andrew Bolt) who try to suggest that now he has pleaded guilty he really should be locked up are simply expressing a willingness to abandon legal process in favour of locking up people they don’t like. I imagine there will be no end of lawyers willing to try to get him out as soon as he’s on Australian soil (after all retrospectivity is not an accepted legal principle in this country) and they’ve already flagged that the gag order is unconstitutional.

    The government is doing a great job of turning Hicks into a local hero. If they’d got him out when the British got theirs out, we’d all have forgotten him by now.

  2. mugwump
    April 3rd, 2007 at 00:02 | #2

    Who among us can possibly believe that, given Downer’s announcement some months ago that Hicks would be home before Christmas, the thing was not a political fix?

    The left execrated Howard for not getting Hicks out of gitmo. Now you are claiming his return is a conspiracy? That’s about as dumb as turn-out-the-lights-hour.

  3. wmmbb
    April 3rd, 2007 at 13:47 | #3

    The Hick’s legal proceeding have transparently been a sham, as legal observers have duly observed. The need for legality is no less a requirement than in its absence. Apparently this principle applies to the torture programs of the Bush Administration, premised on the notion that extreme measures are required to contend with the extreme behavior of terrorism. However, as one of the commenter’s on the ABC Four Corners program, The Hicks Story, Coll Lawrence Wilkinson, mentioned last night:

    I have actually had military officers whose views I respect tell me that we have gotten virtually nothing out of the interrogations at Guantanamo. And that is just damning, if that ever comes out, that we really didn’t get very much meaningful intelligence from these people.

    Implicitly, the Hick’s case calls into question the political judgment and morality of the Australian Government. The portion of the interview between the Australian Federal Police and Hicks re-enacted and available in the transcript does not depict Hicks as a war criminal. He did not seem to have much potential as a terrorist either – for example, any of us without an airline ticket can turn on the television and go to “Philistene”.

    So the problem raised by Hicks might not have been the lack of laws as the lack of evidence, and that he was captured and sold by The Northern Alliance on that chaotic battlefield, and further that unlike his then companions he neither escaped or was British. We might take small consolation that while we are bound as signatories to same international conventions relating to the rules of conflict as the Americans, our Government has not yet found itself able to fix the evidence. That is the next small step.

  4. Lobes
    April 3rd, 2007 at 15:50 | #4

    Making someone sign a statement so they can get out of a place like Guantanamo is plainly coercive and no one who watches the Iranians extract ‘confession’ after ‘confession’ from British sailors can give this deal any credit.

  5. Hermit
    April 3rd, 2007 at 17:39 | #5

    Yesterday our leaders trotted out their preferred climate fibs. From Roxby Downs the PM assured us we were ‘on track’ to meet Kyoto targets. Mind you administrative decisions helped that result; to allow Australia an emissions increase not a cut and a major revision of the tree clearing estimate. Others claim Australia is some 30% over a proper Kyoto allocation. Then from the Queensland coalfields with a vexed Peter Garrett in tow Rudd assured us clean coal would solve everything. If that’s so I’d suggest we write forward contracts for power generation with stiff penalty clauses. At least Bob Brown had the cojones to tell the coal miners to their face they’d eventually have to find other jobs.

    It seems our choice is between the Laberals or the Coal-ition. Either way nothing changes.

  6. melanie
    April 3rd, 2007 at 19:29 | #6

    Mugwump: Did I mention anything about the left in my comment? But I suppose believing that thíng like independence of the judiciary, due process, and even respecting your own laws, amounts to being on the left these days.

    On another topic, I heard a great piece of Howard logic today. First, “we’re on track to meet Kyoto targets”. Followed by: “if we’d ratified Kyoto we’d have committed to targets that would damage the Australian economy”. Ergo, we’re on track to damaging the Australian economy?

  7. jstrocch
    April 4th, 2007 at 14:51 | #7

    With Hick’s confession to being an accomplice to terrorism we can now draw several hard conclusions about the kind of person he and his defenders are.

    No doubt his status as an enemy prisoner of war should have been clarified from the start. Or his trial should have been expedited much sooner. And he should not have been subject to physical duress under interrogation.

    But recent Supreme Court decisions strengthen the case for extraordinary judicial treatment and lengthy, even indefinite, imprisonmentto even minor war criminals. Military commission and stockades are suitable for the administration of justice are appropriate in these cases.

    But these are debates over formal process errors. Common sense and reason dictate they should be trumped by the substantive facts of his case.

    Fact: Hicks was a self-confessed militant supporter of the Taliban/AlQueda when the Australian govt was at war with that movement. Oran’s Dictionary of the Law (1983) defines treason as: “…[a]…citizen’s actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation].” That makes him a traitor.

    Fact: Moreover the Taliban was no ordinary state-like organization. It was a fundamentalist party seeking to establish and expand Sharia law despotism accross central Asia.

    Fact: The Taliban enlisted the support of terrorist organizations like Al Quaeda for that project. The latter were responsible for a campaign of jihadism which include terrorist war-crimes such as the WTC bombings.

    Hicks and his defenders knew all this. He has admitted this and it is indisputably true given circumstantial evidence, independent corroboration and a verified document trail. Yet he continued to give aid, comfort and support to Taliban/Al Quaeda.

    So Hicks was a traitor on behalf of terrorist war-criminals seeking to promote thecratic despotism. This is the kind of man that the Wets have made a cause celebre over the past few years.

    If the Wets had any common decency they would now be rushing into print to admit their error and acknoweledge that Hick’s abominable and deviant behaviour.

    Dream on. But then it is always more important for the Wets to quibble about process and score points against Right wing politicians than it is to prevail in the battle against barbarism. The http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=54297“>Great liberal Death-Wishers sub-consciously want to destroy the real substance of liberalism whilst preserving a phoney form for PR purposes.

  8. jstrocch
    April 4th, 2007 at 14:56 | #8

    Hicks is a self-confessed traitor.

  9. swio
    April 4th, 2007 at 23:11 | #9

    “So Hicks was a traitor on behalf of terrorist war-criminals seeking to promote thecratic despotism. This is the kind of man that the Wets have made a cause celebre over the past few years.”

    “If the Wets had any common decency they would now be rushing into print to admit their error and acknoweledge that Hick’s abominable and deviant behaviour.”

    You still can’t tell the difference between defending principles and defending a person.

    “But these are debates over formal process errors. Common sense and reason dictate they should be trumped by the substantive facts of his case.”

    The value of basic principles of modern western civilisation are expendendable subject to the facts of the case? I would have thought you would value these European contributions to the modern world more highly than that.

  10. April 5th, 2007 at 10:59 | #10

    I’m sorry, Jack, but under such circumstances, if I felt the only way I could get out of them and back to my family was to confess, I would probably get the best deal I could and take it. It would probably not matter if I was guilty or not.
    On to your substantive points. Even if genuine, Hicks has not confessed to attacking Australia or Australians. From memory, the only attack he has confessed to being involved in was against India in disputed territory (Kashmir) and there is not even any evidence that it was more effective than my attempts to shoot bunnies – I do not think I have ever hit one.
    This was much more than just some “…formal process errors…”. Much, much more. This sort of behaviour from a government, any government, goes right to the heart of the power that governments have over us. The simple idea that the executive government, on its own initiative and without reference to the judicial function, can lock up a person in any legal limbo for an indefinite period scares the cr@p out of me.
    If there was evidence he should have been tried ASAP and locked up – possibly with the key thrown away. Without evidence they should not have been able to hold him. This has not been a judicial process, Jack – it has been an abomination.

  11. mugwump
    April 5th, 2007 at 11:23 | #11

    So melanie, you are of the right? A rusted on Howard supporter? Somehow I think not.

    jstrocch is spot-on. Had we had a labour government these past 6 years since 9/11 the whole David Hicks thing would have no doubt been soft-pedalled by the left-dominated media and academia in this country, and the outcome for Hicks would have been similar: long detention followed by confession.

    Is anyone else thoroughly bored of the lame political point-scoring by terminal Howard-haters?

  12. April 5th, 2007 at 11:44 | #12

    mugwump,
    I am not of what many would regard as being “of the left”. This is not, to me at least, an argument between the Right and the Left – it is between those who trust governments and those who do not.
    Some of those on the authoritarian left are indeed using this as a stick to beat the current government with. Those of us who tend to regard ourselves as belonging to the liberal right / libertarian group regard it as a fully legitimate, and very large, stick that the government has handed them. In my opinion, there is nothing good happening here. The damage that this sort of action has done to the reputation of the West amongst those we seek to persuade that the rule of law is important is incalculable.
    This is simply tragic. Nothing of credit to anyone here.

  13. mugwump
    April 5th, 2007 at 12:02 | #13

    AR, I think you and the authoritarian left (is that not a tautology – you have to be authoritarian to advocate taking away individual economic freedom, therefore all leftists are necessarily authoritarian) are overplaying this. I too am of a libertarian persuasion, but David Hicks sure ain’t no Mandela, Sakharov or Aung San Suu Kyi.

  14. April 5th, 2007 at 13:43 | #14

    mugwump,
    You may be quite right, Hicks may not be Mandela. Mandela was convicted of a recognisably criminal offence in a regularly constituted court and had an opportunity to be heard – in Mandela’s case at some length.
    “Authoritarian left” is not a tautology, just as “authoritarian right” is not. Those who trust the government enough to say that they should be able to lock people up without charge or trial for indefinate periods come from both the left and the right – as you have proved. To say that this even could be a libertarian viewpoint is something I would contest vigorously, however. To me, government powers should be strictly prescribed and the power of arrest and arbitrary detention limited to very short time periods – under all circumstances, not just those that suit the government.
    This whole thing with Hicks was just wrong.

  15. Tim
    April 5th, 2007 at 20:15 | #15

    Melanie

    “First, “we’re on track to meet Kyoto targetsâ€?. Followed by: “if we’d ratified Kyoto we’d have committed to targets that would damage the Australian economyâ€?. Ergo, we’re on track to damaging the Australian economy?”

    Cheers! I can’t wait to use that logic on somebody…

    (Maybe in 2012 we’ll have to instigate a mass burnoff or something to tip us over the 1990 emissions levels to avoid meeting those ‘harmful targets’… maybe a turn-on-the-lights hour??)

  16. mugwump
    April 5th, 2007 at 22:40 | #16

    “Those who trust the government enough to say that they should be able to lock people up without charge or trial for indefinate [sic] periods”

    Obviously the period cannot be indefinite. How long should it be in the case of POWs? The alternative is to take no prisoners, but I doubt Hicks would have been happier had the US followed that policy.

  17. April 5th, 2007 at 23:25 | #17

    mugwump,
    This brings up into the debate over POW vs criminal. If he were a POW he would have had certain rights under the Geneva Conventions. For a discussion of this, see skepticlawyer’s post at catallaxy, for anlysis far beyond my poor abilities on this.
    In short, if the US claimed they were POWs, they should have gone before a “competant tribunal” to determine their status. No such tribunal has even been convened, let alone pronounced on their status. If they were criminals they should have been charged. Either way, the failure to put them before any form of independent judicial process is simply illegal and wrong, and no bluster about what they are accussed of will rectify this simple truth.

  18. mugwump
    April 6th, 2007 at 00:54 | #18

    Interesting analysis at that link AR. I commend it to all the moral-relativists on the left who support David Hicks, terrorism against Israel and the US, and Islamofascism.

    FTA:

    “Despite repeated criticism of US misuse of the Jus ad Bellum (laws to war) in the lead up to Iraq, the US has stuck to the Jus in Bello (laws in war) with admirable care and control. Central to an understanding of international humanitarian law (IHL) is an appreciation of the importance of intent (mens rea at common law), something many laymen do not grasp. An airstrike may kill many more civilians than a suicide bomber, but the suicide bomber commits the graver breach of IHL, simply because of his disregard for the principle of distinction (b) above and his ‘intention to destroy’.”

    Most relevant for David Hicks is that neither the US nor France (don’t know about Australia) are party to “Additional Protocol 1″ to the Geneva Convention, hence they are not required to assume Hicks is a POW and all the concommitant rights (under the Geneva convention) that would confer on him. So I was wrong when claiming Hicks is a POW. The US designated him an unlawful combatant, and he has now admitted that. Unlawful combatants have very few rights at all. The US is not breaking their law by his detention.

    Is this such a terrible thing? Hicks was captured fighting out of uniform with no discernible chain of command alongside the backers of the September 11 attacks. I think he is damn lucky to have got off as lightly as he has.

  19. jstrocch
    April 6th, 2007 at 04:51 | #19

    Andrew Reynolds Says: April 5th, 2007 at 10:59 am

    The simple idea that the executive government, on its own initiative and without reference to the judicial function, can lock up a person in any legal limbo for an indefinite period scares the cr@p out of me.

    What about enemy prisoner of war camps during WWII? The allied “executive government, on its own initiative and without reference to the judicial function,…lock[ed nazis and nippons up]… in…legal limbo for an indefinite period” (for the duration). i dont see why Taliban personnel deserve any better, in fact worse considering their illegitimate terroristic status. And Hick is worse still given his evident treachery.

    The liberal-left have spent an extraordinary amount of time and energy fussing over the liberty rights of terrorist suspects and perps. And they have spent virtually no time or energy on protecting the security rights of the citizenry. In fact considerable resources have been dedicated to encouraging grievances and cultural seperation in at-risk ethnic communities.

    I can see your point in the general case of the Bush admin, which has been border-line war criminal in its war on terror. But Hicks case sems cut and dried to me.

    No doubt these folk should have immediately been presented to a competent legal tribunal to identify the correct juridiction. ascertain their proper POW status, proclaim their Geneva Convention rights, ensure speedy judicial proceedings here appropriate and constrain interrogation techniques. A lot of formal errors

    Hoard has in general behaved pretty fair and reasonably on civil issues relating to national secuirty. The hysteria about Hicks looks like Great Liberal Death Wish-ful thinking out loud.

  20. Ken
    April 6th, 2007 at 11:27 | #20

    As far as I know prior to 9/11 criminal acts committed by non-government people and organisations were civil crimes, no matter that they were political-, religious-, ethnic- hate motivated. I think it’s been a mistake for the US to make them into anything special, as if terrorism were something more than hate crime written big. Guantanamo and Iraq will not deter. It will only dirty their hands and teach that rules of law are there to be rewritten at will.

  21. mugwump
    April 6th, 2007 at 11:40 | #21

    9/11 was an act of war. Bali was an act of war. London was an act of war. The war the Islamofascists are waging against Western liberalism, freedom, and success.

    Hicks chose to fight with the enemy. He got far less than he deserved.

  22. Hermit
    April 7th, 2007 at 11:05 | #22

    I see the US is to hop on the ‘deforestation avoided’ bandwagon along with Australia. Already that hints of the odour of rat. The idea is that developed countries can continue to pollute with impunity so long as underdeveloped nations accept meddling in their forestry policies along with a pittance in cash benefits. However there is considerable argument as to the magnitude, the timing and the commercial veracity of tree planting or non-clearing as a carbon sink. See
    http://www.climnet.org/hotspot/Hotspot%2041.pdf for an EU perspective. Another example is that western Canada is backing off such claims for its conifer forests due to drought and insect infestation. No such misgivings seem to trouble Howard, Bush & co.

    The main answer to carbon emissions is to create less of them in the first place.

  23. April 7th, 2007 at 11:35 | #23

    Jack,
    I would agree that the the “Hicks case se[e]ms cut and dried to me”. But that is the whole point – it only seems cut and dried. No one, anywhere has ever had to prove it. The whole reason that confessional evidence has been downgraded in our criminal system is that a good confession can normally be coerced out of anyone, for any offense, given enough time. This will raise doubts, add questions and has turned what should have been a cut and dried criminal case into a cause celebre.
    To me at least, it is the Right that should be getting all upset and hot under the collar that he was not convicted sooner, in a regular court and following the normal rules of evidence – particularly if the case was “…cut and dried…”. That he was not, and that guys such as you do not castigate those responsible for it at the very least disappoints me.
    .
    mugwump,
    Dignifying what the terrorists are doing as “an act of war” is giving them far more credit that they deserve. They are on a larger scale than the acts of the IRA and ETA, for example, but soldiers in a battle they are not. They are criminals and deserve to be treated as such. Making them out to be soldiers engaged in a war IMHO dignifies the undignifiable.

  24. john armour
    April 7th, 2007 at 14:14 | #24

    Melanie, Tim,

    Here’s another bit of Howard “logic” for you:

    “taking action on climate change will destroy Australian jobs”

    Like complaining to the captain of the Titanic that slowing the ship to avoid icebergs would delay disembarkation at New York.

    More worrying is that is shows Howard still doesn’t get it.

  25. jstrocch
    April 7th, 2007 at 18:23 | #25

    Andrew Reynolds Says: April 7th, 2007 at 11:35 am

    But that is the whole point – it only seems cut and dried. No one, anywhere has ever had to prove it. The whole reason that confessional evidence has been downgraded in our criminal system is that a good confession can normally be coerced out of anyone, for any offense, given enough time. This will raise doubts, add questions and has turned what should have been a cut and dried criminal case into a cause celebre.

    The case against him is cut-and-dried. The facts of his political identity and geographical proximity to the Taliban/Al Queada are not in dispute by anyone. What is particular dispute is Hick’s incarceration conditions and more generally the legal status of terrorist prisoners of war.

    IMHO, terrorist sub-state prisoners of war should have less rights than sovereign state prisoners of war. This is because the terrorist mode of warfare grants less rights to others, particularly innocent civilians. So locking them up for the duration of the conflict they were involved in is fine by me.

    I believe the authorities are entitled to subject terrorist perps and suspects to more grueling forms of interrogation than normal citizens or enemy prisoners of war, stopping some ways short of outright torture. This is because their secretive mode of warfare puts a premium on obtaining real time intelligence to counter their attacks.

    Andrew Reynolds Says:

    To me at least, it is the Right that should be getting all upset and hot under the collar that he was not convicted sooner, in a regular court and following the normal rules of evidence – particularly if the case was “…cut and dried…â€?. That he was not, and that guys such as you do not castigate those responsible for it at the very least disappoints me.

    FWIW, I have never hid my displeasure at the Bush/Howard govts dilatory dispensation of justice toward Hicks. I am a conservative modernist, generally believing that institutional process is best for individual progress.

    Hicks has not been the beneficiary of a liberal administration of laws. Bush seems to have run rough shod over crucial constitutional guarantees, political conventions and moral constraints in his haste to draw terrorist blood.

    But legitimate concerns about the state’s dicey legal form have been drowned out by the deafening silence over Hick’s monstrous political substance. This has been led by Great Liberal Death Wishers.

  26. April 8th, 2007 at 01:24 | #26

    Jack,
    The Geneva Conventions are quite clear on POWs and others arrested or detained on the field of battle – they have to be put in front of a “competent tribunal” to determine their status. Even during the whole of WWII, when IMHO our way of life was much more threatened than it is now, this principle was followed. The Bush team have done all they can to avoid such scrutiny. So, whether we believe all that has been said about Hicks or not (and I am inclined to believe it is true) this is not just a failure to follow some unimportant process that can be run roughshod over, this is basic safeguards to which we are all entitled that have been ignored.
    The danger is that, in this “war on terror” more and more safeguards are dropped until we get to the point that we are in more danger from our government’s attempts to stop “terror” than we are from the terror itself.
    Whether they are entitled to less rights than criminals or common POWs is moot if the government can invent new categories of prisoner at will and then define for themselves what their rights are. Every time I see this I am reminded of the old poem that starts “When they came for the Jews, I did nothing, as I was not a Jew…”
    If we stand meekly by and watch anyone be able to be detained at will it is not a path down which we need to, or want to, walk.
    This is basic stuff, Jack – basic protections against the tyranny of executive power are being eroded here. If the case is cut and dried, present it and convict him. If not – he walks.

  27. jstrocch
    April 8th, 2007 at 18:10 | #27

    Andrew Reynolds Says: April 8th, 2007 at 1:24 am

    The Geneva Conventions are quite clear on POWs and others arrested or detained on the field of battle – they have to be put in front of a “competent tribunalâ€? to determine their status…This is basic stuff, Jack – basic protections against the tyranny of executive power are being eroded here.

    That sounds fair enough. The Luftwaffers were detained at His Majesty’s Pleasure for the duration on the say so of Churchill’s dreaded executive. They were interred under the conditions stipulated by the Geneva convention, as interpreted by HM Govt. Presumably that was a “competent tribunal”. The difference between UK c 1940 and US c 2001 is real enough, although it takes a sharp man to spot it.

    The problem with people like Hicks ie opportunistic third party participants to a war, is that they dont meet the definition of POW under the GC. Bush chose to unilaterally modify the US’s interpretation of the GC. This was an abuse of legal power and a grave political error.

    Andrew Reynolds Says:

    The danger is that, in this “war on terror� more and more safeguards are dropped until we get to the point that we are in more danger from our government’s attempts to stop “terror� than we are from the terror itself.

    This is a danger, paricularly when stuff like “extraodinary rendition” and “coercive interrogation” are institutionalised. But not one which seems to be pressing in Hicks case.

    Hicks is not really a victim of “executive tyranny”. More political expediency and bureaucratic convenience. He was held in a proper POW camp. And the interrogation methods he was subjected to do not seem to have been obviously torturous, although probably rougher than acceptable.

    Andrew Reynolds Says:

    Whether they are entitled to less rights than criminals or common POWs is moot if the government can invent new categories of prisoner at will and then define for themselves what their rights are. Every time I see this I am reminded of the old poem that starts “When they came for the Jews, I did nothing, as I was not a Jew…�

    THe GC makes no explicit provision for the treatment of free-booting members of terrorist militias. He was a member of Al Quaeda before he got involved with the Taliban. And he was not a member of that govt’s regular armed forces. This kind of “warrior” was not anticipated by Geneva Conventioneers in the era of great state warfare. It should be modified to make terrorist POW treatment an accountable matter.

    The treatment of war criminal POWs should be more stringent than for lawful POWs, for reasons I outlined above ie imminent threat, secretive MO. I dont have a problem with people like Hicks being tried by military commissions and incarcerated indefinitely in military stockades.

    Andrew Reynolds Says:

    If the case is cut and dried, present it and convict him. If not – he walks.

    And that finally happened, after sustained democratic political pressure. He has received a sentence, given time served, which just about fits the gravity of his crime. So justice has been delayed, but not wholly denied. Hardly the Third Reich.

  28. mugwump
    April 8th, 2007 at 22:21 | #28

    ““When they came for the Jews, I did nothing, as I was not a Jew…â€?

    Yeah, capturing Hicks on the battlefield fighting alongside the backers of 9/11, Bali, London, and global Islamofascism is entirely equivalent to ripping jews out of their own homes and sending them to the gas chamber.

  29. April 9th, 2007 at 01:52 | #29

    No, mugwump – it is not. Keeping our mouths shut as our rights as citizens and human beings are degraded is a start, though.

    Look, just to be clear. I have no problem with his capture or conviction, if it is done following due process. It was not. Once we start saying that due process need not be followed in this or that instance, though, where does it stop?

  30. mugwump
    April 9th, 2007 at 02:03 | #30

    Due process was followed. He was an unlawful enemy combatant; there are very few rights associated with such a depraved status, including as it does those who deliberately target innocent civilians (like the scum who use children to get past checkpoints and then blow them up).

    These people are subhuman. If you want to discuss subhuman rights then I am happy to have that conversation. But human rights don’t apply.

  31. Hal9000
    April 9th, 2007 at 13:14 | #31

    Subhuman, eh? That’d be untermensch in German, wouldn’t it?

  32. April 9th, 2007 at 15:02 | #32

    mugwump,
    If someone decided that any person who thought others were subhuman were in fact subhuman themselves, then decided to arrest you and throw away the key, would you want a right of reply, some judicial review – anything? Even this decision need appropriate judicial review.
    We cannot and should not trust our government, or any government, with that sort of power, ever.

  33. jstrocch
    April 9th, 2007 at 16:27 | #33

    Terrorists are not sub-human in rights. They deserve proper legal recognition and accountable treatment.

    All criminals must necessarily lose some civil rights, even at the suspect stage. How much of their rights they lose depends on the gravity of the crime and the anxiety of the time.

    Terrorists are war criminals. This is one of the most serious charges that can be levelled at someone. They should be entitled to sub-soldier and sub-criminal rights, at least in so far as interrogation and incarceration process.

    A treacherous war criminal should have the book thrown at him. If the book lacks the laws to treat him then it should be revised. This is in fact what happened at Nuremburg.

    I think that the overall judicial result with Hicks was fair enough, although too slow and crudely executed. He is not a threat to society. But his type is and it was right that he was made and example of.

    A pity that Bush bludnered about and fudged it for so long. He could not run a school tuck shop let alone a global war.

  34. jstrocch
    April 9th, 2007 at 16:55 | #34

    I think that Gonzales attempt to institutionalise torture into US law was a turning point for many. There is some grey area about how much pressure can be applied to a detainee in the interrogation process.

    Plenty of people are prepared to look the other way or play it by ear if interrogators “sweat” detainees, using psychological pressure. Providing outright physical violence is abjured.

    As Pr Q suggests, the lengths to which an interrogator should go are ultimately determined by the imminency + gravity of threat x the likelihood of obtaining useful information under duress. This is an ad hoc act utilitarian calculation for which the interrogator must be held accountable.

    One could accept torture as an individual aberration, in extremis, somewhat reluctantly. The idea of authorising torture as an institutional routine, per usual, is barbarous. A rule utilitarian must draw the line here.

  35. mugwump
    April 9th, 2007 at 23:14 | #35

    HAL9000, only “untermensch” to you and your kind who see saint David as a hapless victim of the evil capitalist Americans, not the treacherous scum he really is. More “moral equivalence” from the depraved left.

    AR, I’d let go of Hicks as your poster-boy. The guy is a traitor. In my opinion, a far more worrying area of lack of judicial oversight is the use of National Security Letters by the US administration. You risk 5 years in jail if you even mention receiving one.

  36. April 10th, 2007 at 01:13 | #36

    mugwump,
    Where, precisely have I said he is a poster boy – or even hinted at it? I have made fairly plain my position – I believe the guy is probably guilty of many things. If he is I believe he should be locked up. No poster boy here – but possibly a straw man. I would just like to have seen a fair trial in a court of law.
    At least the NSLs have been subject to Congressional oversight – even if belated. Guantanamo is not.

  37. Hal9000
    April 10th, 2007 at 09:20 | #37

    I was pointing out using some irony (not, I gather, your long suit) that consigning your supposed adversaries to ‘subhuman’ status has a long and wicked history, mugwump. It makes of you everything you claim to be bad about those you despise. The crowning achievement and indeed sine qua non of the civilisation you claim to be defending is the rule of law that applies even to those who behave most contemptibly – the Martin Bryants, Augusto Pinochets and their ilk. If you’re prepared to jettison this principle you are objectively an enemy of western civilisation. Still, logic tends not to coexist with hysteria, so I doubt this point stands an earthly of being comprehended.

    Whatever, my troll detectors are in the red zone.

  38. AnnaK
    April 10th, 2007 at 12:01 | #38

    The two of you would make excellent politicians… whether I intend that as a compliment or otherwise I’ll leave to your judgement.

    David Kicks was a terrorist. He should therefore be punished, and his access to society restricted. Check. Definitely accomplished.

    America is the world’s most economically and politically powerful country, holding personal liberty, rights and justice close to its heart. Should therefore steer clear of policies which encourage psychological manipulation, human rights abuses, confinement without trial, legal intimidation, institutionalised violence, and so on. Definitely not happening.

    What happened to America’s tradition of moral and ethical leadership? What happened to setting an example of what a free and democratic country should be?

    (A: The fundamentalist, religious right came into power.)

  39. jstrocch
    April 10th, 2007 at 22:32 | #39

    AnnaK Says: April 10th, 2007 at 12:01 pm

    What happened to America’s tradition of moral and ethical leadership? What happened to setting an example of what a free and democratic country should be?

    (A: The fundamentalist, religious right came into power.)

    It is the symbiosis of the financial Right and religious Right which creates a toxic political culture in the US. Seperately each faction has valid policy points. But they can only make political headway in the US’s divided divided society by bringing out the worst in each other. The two factions seem to be brokered by the martial Right, which is always looking tfor a war to wage.

    In the US the post-Gingrich Right have squandered the enormous moral capital built up by the US global institutions under the eagis of Roosevelt, Eisenhower, Kennedy, Clinton and Reagan. The intitation of aggressive war and the authorisation of torture are definitely low points in US political history.

    But we also have the malicious cultural Left holding sway over minds. They apply forensic moral scrutiny to the activities of unified institutional authority. All well and good.

    But they give a free pass to diverse indvidual autonomies who are in strife. Especially the kind that corrode the civil tradition of modernity. Hicks, Hilal, Habib to name three in todays press.

    The Great Liberal Death Wish is always whispering in the back of their minds.

  40. mugwump
    April 11th, 2007 at 04:03 | #40

    Hal9000, as it happens, I agree with you. However, in Hicks’ case the rule of law was followed. As an unlawful enemy combatant he had almost zero rights. Not even those of a PoW.

    My main beef is with the idiot left in Australia who portray Hicks as some kind of hero and poster child for freedom. You’d be hard-pushed to find a less deserving soul. There are far more egregious violations of human rights than anything visited upon Hicks, yet the latte left conveniently ignore them because they don’t provide such a convenient and intellectually lazy outlet for their bigoted hatred of all things American.

    AR: “I would just like to have seen a fair trial in a court of law.” Not exactly practical in a war situation. Military tribunal is the best you can hope for.

  41. April 11th, 2007 at 11:02 | #41

    mugwump,

    Please just read the link to catallaxy I gave above. It covers his status, and those of the others detained at Guantanamo, very well. The critical point is that the people who captured and detained him should not get to choose what his status is. That is clearly the responsibility of a competent tribunal.
    To put it as a hypothetical – if a national leader decided to declare “war on anti-sub-humanness”, capture you and then call you an “unprivileged believer in sub-humanness”, declare that this means that they have the right to lock you up permanently because this status is not adequately covered at law, but was clearly nasty, would you accept this situation and not fight it? Would you hope that others would challenge this declaration, even if they considered you to be wrong because you believe that some people are subhuman?

  42. jstrocch
    April 11th, 2007 at 13:39 | #42

    Andrew Reynolds Says: April 11th, 2007 at 11:02 am

    The critical point is that the people who captured and detained him should not get to choose what his status is. That is clearly the responsibility of a competent tribunal.

    Who the devil is this “competent tribunal”? Was it sitting during WWII?

    Really the problem is circumventing an all-powerful and vigilant political party. I am happy if this “competent tribunal” is seperate from the national executive ie selected from the judiciary or parliamentary branches.

    Unfortunately the US Republican Party is becoming like this. So the utilisation of global tribunals clearly has some benefits. It is adopting some of the techniques of the Communist Party, reversing ideologival signs but saving methodological ones in its attempt to privatise the world.

  43. April 11th, 2007 at 16:01 | #43

    Jack,
    Read SL’s post at catallaxy, which examines the issues well. She is one heck of a lawyer and writes clearly. It should answer all your questions.
    The operative paragraph: “Article 5 of the Third Geneva Convention and art 45 of Protocol 1 states that if, in the course of armed conflict, any doubt arises as to the status of a detainee, such person shall be presumed to be a prisoner of war until a competent tribunal determines otherwise.” (emphasis mine)
    If there was no doubt he, and the others at Guantanamo, should have been tried promptly or treated as POWs. If there was a doubt then they should have been put before a competent tribunal. None of those happened.
    On the other point – the “competent tribunal” bit is from the Third Convention, adopted 1950, effectively to write inot law what happened at Nuremberg. Up until then all people captured were treated either as civilians or as POWs.

  44. mugwump
    April 11th, 2007 at 22:30 | #44

    AR, I read the link. As I explained above, her analysis does not support your position, although she does not make that clear. The US is not a signatory to Protocol 1 (nor is France, don’t know about Australia), therefore they are not required to treat unlawful enemy combatants as PoWs until a competent tribunal determines otherwise.

    We now know Hicks is and has never been a PoW – he has admitted that. We’re his captors in any doubt about that? I think not.

  45. mugwump
    April 11th, 2007 at 22:34 | #45

    PIMF: “Hicks is not and has never been a PoW……Were his captors in any doubt…”

  46. Hal9000
    April 12th, 2007 at 13:54 | #46

    mugwump, the term ‘unlawful enemy combatant’, actually ‘alien unlawful enemy combatant’ (spot the difference – they know a priori it wouldn’t work on US citizens) is an artifact of the Military Commissions Order (now Act) and was unknown to law before the Bush administration’s lawyers invented it for the express purpose of muddying the waters in order to allow the use of illegal methods of interrogation and to authorise detention contrary to the law of the US. All part of the same devious and specious use of legalisms to defend illegality seen in the (failed) attempt to place Guantanamo Bay into legal limbo. Your arguments about the applicability of the Geneva Conventions were of course exploded by none other than the Supreme Court in Hamdan v Rumsfeld – the US is bound by them. Your argument about Protocol 1 is a red herring – the Third Convention (see AR’s last post) is ratified and applies, as the Supreme Court has found. You’re running the discredited Bush administration line that there is a class of persons outside the reach of law. There is no such class of persons, or there is no rule of law. You can’t have it both ways. As Julie Andrews I think sang – which brings us back to d’oh.

  47. Ken
    April 12th, 2007 at 17:25 | #47

    Very dangerous to classify people as subhuman for any reason. Because someone attacks civilian targets? You don’t have to go that far back for that to be one of the acceptable ways wars were fought – with the intention of disrupting and demoralizing the enemy nation (usually by aerial bombardment or distant artillery since lining people up and shooting them was counted as criminal)- but it was always a crime when done by people who weren’t soldiers directed by governments . It’s progress of sorts that it’s considered abhorrent when done as an act of war. We need laws and judicial processes, we especially need international laws and judicial processes to be strengthened – these new categories that put people who aren’t soldiers, who commit hate crimes, outside civil legal processes aren’t advancing the cause of the rule of law.

  48. April 12th, 2007 at 18:24 | #48

    Hmm, looks like my previous comment was lost somewhere. Never mind – Hal9000 and Ken have covered it more than adequately.
    .
    BTW, Hal9000 – why have you taken the name of a murderous computer as your nom de plume?

  49. Hal9000
    April 13th, 2007 at 17:22 | #49

    Why, thankee for asking AR.

    A computer with human characteristics, yet self-described as the ‘best, most reliable computer in the world’. I like the irony – a mendacious boast of virtue. It reminds me of most of our political leaders’ relationship to democracy, decency, justice, and truth. And it contains my own name. Trivium: if you add 1 to each letter you get IBM.

  50. mugwump
    April 14th, 2007 at 06:43 | #50

    HAL9000, the “Military Commissions Act of 2006″ cleared up the little disagreement between POTUS and SCOTUS.
    Said act:

    “contains provisions (often referred to as the “habeas provisions”) removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status. This allows the United States government to detain such aliens indefinitely without prosecuting them in any manner.”

    Now, whether this is constitutional remains to be determined. But in the meantime, scumbag Hicks should count his lucky stars.

  51. April 17th, 2007 at 21:46 | #51

    HAL,
    Good to see someone who knows how to render a latin plural into the singular. Unusual these days.

    mugwump,
    Hicks may well be a scumbag. Just a pity no-one even had to prove it. There will now always remain a question mark over the whole thing – at least in some minds. A confession after long detention like that is always questionable. Was he guilty of more?

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