Now that charges have finally been filed against David Hicks, it occurred to me to wonder what would happen if the trial proceeds and he is acquitted. The answer, it appears, is nothing. More precisely, if acquitted, Hicks will go back to Guantanamo Bay unless and until the US Administration chooses to release him.
That at least was the situation in 2002 according to this article by Ronald Dworkin, stating that the Pentagon reserves the right to hold detainees indefinitely, regardless of the trial outcome. And a group of Chinese Uighurs were held at Guantanamo for more than a year after military review panels had determined that they were not enemy combatants. This Wikipedia article includes a statement by Rumsfeld to the same effect.
Maybe this has been changed by the legislation passed last year. But if so, I can’t find any evidence to this effect. In fact, by removing any rights for aliens declared as enemy combatants by the Administration, the Military Commissions Act appears to confirm the power claimed by Rumsfeld to hold Hicks (or any non-citizen) without any resort to habeas corpus and regardless of any trial outcome.
John Quiggin 
“Now that charges have finally been filed against David Hicks”
Have charges been laid against Hicks?
“US prosecutors have recommended he be charged with providing material support for terrorism and attempted murder, but the charges won’t be formally laid until they have been approved by US military judge Susan Crawford.”
http://www.smh.com.au/news/National/Protesters-demand-Hicks-return/2007/02/06/1170524077164.html
A bit like “Clayton’s” charges’
The charges you have when you dont want to have charges.
That was why I used “filed” rather than “laid”.
Sorry
PrQ,
With the extent of the lawlessness of the position of the US government, and ours, over Guantanamo nothing would surprise me. To me, it is the biggest recent stain on the reputation of the US as a nation respecting law that I have yet seen.
I don’t understand the situation with the Chinese, but with the growing tide against Hicks’ continued detention amongst the Australian public, it is difficult to imagine a situation where the governments in Canberra and Washington could resist calls for his release, should he be found not guilty.
Hicks is a true political prisoner. In that his detention will end when the electoral damage from releasing him is perceived by the Howard government to be less than the electoral damage in letting him stay where he is. Right and wrong, and the law, mean nothing to his status.
Until there is some legal framework for dealing with those who fall outside the Geneva Convention there is no illegality in indefinite detention.
Mr Amnesty International Ruddock says we shouldn’t even discuss it anymore because now we know what the charges are we have to let the “court… um tribunal” run its course.
I thought the charge of attempted murder required a specific intended victim. Taking pot shots is in another category, not quite sure what. Reading the icy glare coming from Howard and Ruddock I think a dotted line has been crossed between Canberra and Washington. If Howard feels he is getting the run around I think he will send a serious signal eg re some aspect of trade or military co-operation.
A lot of people miss the nuances in this sort of thing. For instance, lately the Australian media have been incorrectly asserting that new evidence shows that Australian journalists in East Timor were shot after they had surrendered to Indonesian forces. In fact, even if the evidence holds up, it wouldn’t mean that they had actually surrendered – only that they offered surrender and that the Indonesians had not accepted it. More likely, though, they didn’t halt when ordered to in the confusion, or the Indonesians thought they hadn’t, or something like that – and it is in fact quite proper to shoot someone who advances with his hands up.
I’m not trying any justification here, simply trying to use practices of war to clarify things. It is quite easy not to understand what is going on even when you are looking straight at it. In the detainee situation, however, it is quite clear that these things do not apply – and the lack of specific Geneva Convention status as read by the detainers does not translate into carte blanche for them. It just means that they have undercut their own credibility if they ever offer terms to combatants in the future – surrender will be seen as a bad option, so they will get more fights to the death.
By the way, the Germans treated my uncle and grandfather much better after the fall of France in 1940. When my uncle stopped being a POW and became an internee, he was treated less harshly (and escaped), while my grandfather was released (by the Gestapo!) on establishing his Irish nationality.
The statement by the Australian Defence Association calling for Hicks’ return was pretty gobsmacking. I reckon that had more to do with Johnnie’s displeasure than any of Phil’s antics.
There are two possibilities he returns dead or alive, either way his return will be marked by thousands. If the former occurs, IMHO , you can kiss goodbye to any long term relationship with the US. The bitterness and distrust that will follow will last for generations.
P.M. Lawrence, be careful with that slipery slope you’re threading, it might just seem that you can’t accept the Whitlam’s government knew the invasion of Timor L’Este was about to occur and simply let a few Australian remain in harm’s way.
So that might be the huge precedent for what hoWARd has done to Habib and Hicks… still now, Whitlam’s biggest stain.
Charges have been “sworn” – according to the ice-pedant.
If the former occurs, IMHO , you can kiss goodbye to any long term relationship with the US.
Why Kyan? Many other countries have killed our citizens before for far less than what Hicks is alleged to have done. We still have good relationships with those countries (e.g. Singapore). I think you need to take an objective look at what most Australians actually think of Hicks.
political blogging…
Is political blogging changing, just as its form is becoming accepted in Australia as an supplement and alternative to and critique of the national press? Some bloggers are appearing in a variety of high visibility media locations, including radio prog…
In spectacular day of revelations, Howard declares in parliament that even now he is a cliamte change skeptic. That was yesterday and to day he shows his total mean spirited ness.
http://www.smh.com.au/articles/2007/02/06/1170524096341.html?s_cid=rss_smh
What a man!!!!
I don’t agree with how the USA is dealing with David Hicks. It is bad for Hicks and bad for the USA.
Apparently Howard admitted in the party room yesterday that he could have Hicks released if he pressed the Yanks, even now. If he was acquitted then the politics would make sure that he did so press.
Which is, of course, exactly why he won’t be acquitted. Both the US military and the Oz government have too much at stake to allow that. They want to claim some sort of vindication and will do whatever’s necessary to ensure it. You can already see that in the admission of hearsay and coerced evidence and I bet the tribunal selection process will be a real hoot.
But I think what would be most convenient for the slimey bastards is a plea bargain. If I was Major Mori and holding my client’s best interests, rather than justice, foremost I’d negotiate hard and then advise him to cop the plea.
PS: And thinking about that plea bargain, it would explain the “attempted murder” charge (for which there seems not to be a skerrick of evidence). It’s a bargaining chip.
Terje, it’s also bad for Australia to see its Govt. cheerfully sacrifice an Australian citizen to the whims of a foreign aggressor.
Rog, you display a breathtaking ignorance of international law and the Geneva Conventions (note the pluaralisation, there are more than just one…). The persons being detained at Guantánamo Bay are Prisoners of War, plain and simple, and have the right, as the International Committee of the Red Cross has asserted endlessly, to be treated as such. Their status as ‘Illegal Combatant’ is a legal fiction and one devised by the US to obfuscate the fact that they were blatantly ignoring the established legal framework for war that was intended to prevent a repeat of the horrors of Nazi Germany.
Of course, one could argue that if you don’t accept the rules of the game, you shouldn’t play at all…
Re PML’s bizarre hypothesising of what happened in Balibo 32 years ago. Only an economist seriously could put the proposition that it is possible to have your hands in the surrender position, but it is not actually surrendering because it’s not accepted.
It is not unlikely that the soldiers were told to kill the Australian journalists. This is not the stuff of conspiracy theories, it is a reasonable supposition, especially with that bastard Beni Merdani – who openly, unashamedly, loathed/loathes Australians – running the invasion.
As stated by derrida derider in 17;
“JOHN HOWARD has told his party room he could secure the release of David Hicks any time but says that would be wrong�
Now we have the executive of government as judge and jury incarcerating Hicks at will (what happened to the separation of powers).
http://www.smh.com.au/news/national/pm-i-could-free-hicks–but-wont/2007/02/06/1170524096341.html
Hicks has not been convicted of anything and it is very unlikely that a fair and just court would ever convict him.
Firstly, the war on terror in Afghanistan and Iraq has been and is an outrage.
Guantanamo Bay is a product of that war. It’s pointless arguing the rights and wrongs of due procedure for inmates in Guantanamo Bay. Doing so says the war is ok so long as legalities are respected.
As for that Hicks person why is he being lionised as a ‘political prisoner’, from every sanctimonious pop star down? I don’t care what happens to him or at least as far as prioritisng injustices goes, he should take the pride of place crumpled up in the dustbin at the back of the room.
He went to train and do the dirty work of nihilist murdering bastards known as the international mujahideen, in a childish rage against modernity. His comrades were the ones committing atrocities in the Balkans during the 1990’s, numerous bombings against western nations and embassies, the Beslan massacre of schoolkids, he was attracted to that! Lets not think of him as some hero because he chose of his free will to work with the scum of the earth. He is no happy go lucky adventurer with a billy can in his hand taking on the bad guys.
There are hundreds of adults and kids deserving to get refuge here Australia but are locked up in sweltering desert camps for the hell of it? While that abomination still occurs the likes of Hicks can rot for all I care.
Gotta love that logic, D McCarthy.
The war is an outrage and so is Guantanamo but I don’t like his cause and there are others worse off than Hicks so we shouldn’t give a toss.
If you’re not a troll, you’re doing a good imitation of one.
23: Dick McCarthy Says:
He went to train….bla bla bla …. His comrades were….bla bla bla …. Lets not think of him as some hero because he chose of his free will to work with the scum of the earth….bla bla bla ….bla…bla…bla…
PROOOOOVE IT, Dick McCarthy you have only had 5 years to do so.
The only prima facie evidence around here is that Dick McCarthy is willing to believe anything.
Hicks is being mistreated and if he is innocent then an injustice has been done. However war is full of injustices. The moment we invaded Afghanistan we were in a business that was going to create injustices. A lot of people got bombed dead (without trial) because they were doing what Hicks did (ie wrong place, wrong time).
When we prosecute a war we lower the bar on justice, civility and the sactity of life. Hicks is a victim of our war mentality. Yet in times of war we can’t prevale without something of this mentality. So the whole fiasco is tragic in a quite Shakespearian sence.
He will be released when Bush or Howard retires.
Terje, I appreciate your line of thought – after all, most arguments against war make passing mention of the death and destruction that are its by-products. These are arguable cases of ‘injustice’.
But there’s no particular need here to look at the big picture.
I don’t think anyone’s making the argument that x or y piece of foreign policy adventurism is proven entirely wrong by one Hicks-type instance of injustice (or even by thousands of much more serious ones). The broad COW approach to Afghanistan/Iraq can be argued elsewhere.
Rather more pertinent here is the idea that when an example of injustice is clearly identified, it should be acted upon according to the principles which underpin our civil society, not shrugged off as being an unavoidable product of war. Sure, maybe it WAS inevitable that someone would end up caught in Hicks’ position sooner or later, but that does not excuse what has occurred over the last 5 years.
Psuedo and Hal9000.
I get the logic now. To oppose the idiotic war of terror you have to support any lunatic that joins a nihlistic medivalist murdering organistaion. Why? Because he was accidently born in Australia? Sorry you have to do more than that to get my sympathy vote.
I don’t believe the man was collecting butterflies when he was scooped up the Americans. While the war is going on how do you expect a belligerent nation to return an enemy combatant?
To call Hicks a political prisoner is a disgrace to all those who have been wrongly imprisoned in the past for their convictions – I mean what are Hicks’ politics? He got caught playing at war with a bunch of lunatics.
Guantanamo shouldn’t exist, the war in Afghanistan and Iraq should never have happened. But let’s not delude ourselves about what probably got that man in hot water in the first place.
Not when innocent Australian people can be pulled off the streets by police in Australia, and are left in agony to die in a cell. Not when kids are being born to innocent parents who are incarcerated in desert camps, guilty only of seeking refuge from war torn and oppressive areas of the world.
Hicks is way down the ladder. Get some perspective.
Because he was accidently born in Australia?
Yep, that’s the traditional path to Australian citizenship.
I don’t believe the man was collecting butterflies when he was scooped up the Americans.
No, he was waiting for a bus.
To call Hicks a political prisoner…
You’re the only one to do so in this thread. But now you mention it, what else would you call someone who Howard says (according to reports of what he said in the coalition caucus) is being imprisoned at his (Howard’s) pleasure and on no other basis?
Not when…
Red herrings. The same silly argument is often heard in the format ‘the government shouldn’t be wasting time/money on [insert debate or expenditure item here e.g. constitutional reform or spending money on a new museum] when it should be focusing on [insert pet topic here e.g. jobs or fixing hospital waiting lists]. It’s the walk and chew gum dilemma. FWIW, I agree with you that the Palm Island case and the mandatory detention policy are also heinous, but you’ll find other threads you can vent your spleen on about these subjects. Come to think of it, I don’t recall seeing any previous comments from you on these issues, so maybe your concern is confected.
The argument here in this thread is about locking people the government, apparantly with your support, don’t like up without any due process and in defiance of the law. For five years. Without any end in sight. In solitary confinement. Hicks could be a child molester or a mass murderer, but he doesn’t deserve any less than the due process afforded Martin Bryant or Hermann Goering.
As it happens, it’s more likely than not Hicks was a young idiot with stupid ideas who fell into some bad company. If he was actually guilty of any crime, he’d have been tried and convicted years ago. What Hicks’s detention and kangaroo court trial process is all about is testing the powers of the US executive to exercise the executive fiat of a Tudor monarch. It’s patently clear the US Supreme Court won’t wear it, but in the meantime justice can apparently be delayed almost indefinitely.
But whatever, it’s an affront to all citizens that one of our number can be treated like this with the connivance of our government.
FDB,
I don’t disagree with you. I’m just saying how it is, not how it ought to be.
Regards,
Terje.
Hicks’ main chance of ever leaving the place is an ALP election victory. As somebody mentioned above, the Supreme Court won’t wear the military commission this time either. There won’t be a trial. It’ll drag on until we have a change of government or Howard does another one of his famous about turns in the face of the Rudd polls.
Rudd doorstop interview 7/1/07:
RUDD: What I say about Mr Hicks is that Mr Hicks doesn’t deserve special treatment. Mr Hicks deserves normal treatment under the law and he’s not getting normal treatment under the law. You can’t spend five years in Guantanamo Bay without charge and without going to a proper criminal trial and regard that as normal treatment under the law. It’s not. In fact, it’s a disgrace.
Is Hicks the ONLY Australian to have been imprisoned without trial by a foreign government for a period of 5 years or so?
I don’t think so, Steve. I’m pretty sure Mao’s regime in China held an Australian without trial for a long time, and various terrorist movements have done similar things. As you suggest, Bush and Howard have plenty of precedents to draw on here.
28: D McCarthy Says:
“I don’t believe the man was collecting butterflies when he was scooped up the Americans.�And “But let’s not delude ourselves about what probably got that man in hot water in the first place.�
Nobody is deluding himself or herself except you Mr McCarthy.
Hicks could have been in Afghanistan selling used vacuum cleaners to Persian rug weavers as far as anybody can tell. It is impossible to know for certain what he was doing there. (let alone prove it in a court of law)
Mr McCarthy, you may want to believe the allegations of a nation that lied to the world about Weapons of Mass Destruction, just to gain control of the worlds 2nd largest known reserves of oil after Saudi Arabia.
But ask yourself who is deluding whom?
There seems to be some confusion as to Hicks status, he is not viewed by the US as a criminal he is viewed as an enemy and is being held to prevent further activities as an enemy of the US and its allies.
During WW2 Australia had a number of camps for POWs and interred people judged to be of an enemy status.
http://home.st.net.au/~dunn/pow/pow.htm
Carlos, I am aware that there is a slippery slope here – there always was. That’s why I tried to make it clear that I was presenting rather than justifying standard procedure.
Paul Kelly, while you may find it bizarre, it would be even more bizarre to assume that prisoners could always be imposed on victors. Quite simply, in combat, the Laws of War have always allowed quarter not to be offered.
The point to remember is that the Laws of War are entirely pragmatic, nothing to do with ethics at all. Please note that I have not addressed either the wisdom or the ethics of offering quarter. People who are hors de combat like the wounded may not properly be killed, but neither need they be assisted. (Here, I am talking of the Laws of War in a very limited sense, not additional requirements imposed by later conventions and such, like the Geneva Convention.)
Which brings us back to the Hicks business. He is entitled to be treated as a prisoner – he was taken prisoner. Pragmatically, not doing so opens Americans up to similar treatment.
By the way, the proper treatment of people coming out with their hands up is either to accept their surrender or to send them back as the Americans did quite recently at Fallujah – but someone who keeps coming on with his hands up is presumptively hostile, trying a ruse. (There is a standard procedure of calling outhalt twice, and then shooting if it is ignored.)
The Americans themselves practised this sort of perfidy during their War of Independence, pretending fake surrenders; this was a major reason that so many were killed by the British when attempting to surrender, which US historians have misdescribed as “killing prisoners”. Others, of course, were killed during hot pursuit when they were overtaken by cavalry without the resources to keep prisoners even if they had wanted to.
In summary, no combatant or other person on the field of battle, not clearly hors de combat, is ever entitled to have his surrender accepted, but any surrender that is accepted must be respected – but even by this very low standard, Hicks is not being treated properly.
Despite your protestations pseudo
Poster number 5.
” Hicks is a true political prisoner ”
This is the resounding sentiment attached to Hicks from any travelling celebrity,opportunist politican and any Australian with a warped sense of national pride.
The tragedy that is Hicks is one for him and his own family, and no doubt a headache for the diplomats. Its not national or international tragedy. Unlike the war in Afghanistan and Iraq, they are national and international tragedies. Just as the cross party support for the suspension of habeaus corpus is a tragedy in Australia (and UK and US for that matter).
P.S. so as not to appear too unkind and unsportsmanlike,my tip for Hick’s lawyers would be to plead he was attracted to the international mujahideen in much the same way US UK and NATO politicians, intelligence agencies and military forces were in Afghanistan from 1979 and again during Balkan crisis of the 1990’s. All brothers in arms with the jihadist on that score.
apologies psuedo, it was not your claim that no on here said Hicks was true (blue, no doubt) political prisoner. That was Halwhatever.
Pseudonym,
There are photos of David Hicks holding guns. In the eyes of John Howard any Australian civilian that likes holding a gun is automatically a danger to society. And in the court of public opinion this is what got Hicks tagged as a dangereous man who should be locked up. Stupid isn’t it?
Regards,
Terje.
Holding guns? What, like these wankers?
D McCarthy, I don’t know what you’re projecting, but the bit of my national pride that is wounded by the Hicks case is the rule of law, our legal heritage such as habeus corpus and the right to a fair trial. All that unimportant stuff.
Wilful, there is no lawful or civilsed way to conduct a war. Opposition to the war, opposition to the seemingly divine right of US UK and GB to intervene in sovereign states and teach them how to be civilised. Exposing the hypocrisy of pursuing international jihadists and their collaborators, when their biggest collaborators to date have been the ones now hunting them down.
Habeus corpus is not legal heritage, it is a fundamental right for anyone wanting to live in a modern free society. It should not be the situation that Hicks put himself in that dents your national pride. But the fact that Australia is an active combatant in the war on terror and that habeaus corpus has become a disposbale commodity here in Australia, that’s got nothing to do with Hicks – that’s the politics of fear as practised in Australia.
Taking the planks out of our own eyes, helps us see the splinters in our neighbour’s eyes.
Terje;
“And in the court of public opinion this is what got Hicks tagged as a dangereous man who should be locked up. Stupid isn’t it?”
Do you mean photos like this one:
http://politicalhumor.about.com/library/images/blbushguns.htm
“there is no lawful or civilised way to conduct a war”
There is, it’s just very, very difficult.
What the hell are you talking about? You’re desperately confused here, al over the shop. This has nothing to do with Iraq, Afghanistan or the GWOT. What Hicks did or did not do says nothing to me (or anyone apart from you) about national pride. I have no idea why you raised national pride, you’ve not explained the relevance.
Habeus corpus is both legal heritage and fundamental right, as well as a source of national pride. Denying it is wrong, in fact I would go so far as to say it is ‘un-american’.
DMC, there is no such thing as habeus corpus. You may be thinking of habeas corpus.
Wilful,
The photos of the AWB accused were certainly used by the media to create the same negative attack on character as the David Hicks photos. The media could have very easily obtained other photos that would have been more than adequate for the story.
I understand that Kevin Rudd is a shooter and he no doubt has a few photos in his album that include him holding a gun. It would be interesting to see him share these images to communicate his varied talents and skills. Just like we saw a photo of John Kerry holding a gun during the last US presidential election (it was taken recently, not during his military career).
Ironically when we are presented with images of aussie soldiers holding a gun the spin is different. The spin is of brave young Australians doing a dangereous job.
I don’t purely blame the media. It’s the public at large that has simplistically decided “holding gun” = “bad person” except when “wearing uniform”. We don’t even hold soldiers and police to account in the same way as civilians when they manage to lose their weapons.
Regards,
Terje.
Bad spellars of the world untie, Mr Lawrence.
The Hicks’ case has nothing to do with the war (which all main Australian Parties) applaud Wilful? Now I am confused.
The national pride bit comes into it because he has become a celebrated cause (as this blog attests to). You would think he was the only person locked up in X-Ray. There are quite a few others picked up as enemy, in the course of the war, and no doubt quite a few of them nasty pieces of work. But he counts because he was born in Australia and it now seems its un-Australian to think an Australian could heed the call of the nihilistic mujahideen.
I oppose the wars that populated Camp X Ray and always have, but I would not let that cloud my view of the sinister mujahideen inc. and its ragtag adherents wherever they hail from. Kind of like that ‘walking and chewing gum at the same time’ thing someone was refering to earlier.
Let’s face it, DMC has already pronounced Hicks guilty. “He was in a location that the Americans attacked, had been photographed holding a gun and was picked up and put in Guantanamo.” QED.
Maybe you’re applying for the job of judge in the military commission? You’ll do well.
Please if you are going to quote me Melanie, do so properly.
Hicks worked for the mujahideen to “ensure the Western-Jewish domination is finished so we live under Muslim Law again” did he not?
I don’t hold a candle for those nihilist murderers who can support, plan and exectute the mass murder of kids, teachers and their parents in a Beslan school, that blow up men, women and children on trains in Madrid, who can hijack passenger planes and use them as missiles, and blow up Embassies in Africa, killing hundreds and thousands in the process. Thats what the international mujahideen murdering nihilists do.
And please spare me the chauvinistic nonsense that he was young and foolish and knew not what he was getting involved in. If it was one of his comrades coming from Pakistan or Albania or Turkey you wouldn’t give two hoots about his rights to habeas (there put my teeth back in then!) corpus or laws of war and the Queensbury rules.
Young adults can make silly mistakes like trying to go out with two girlfriends at the same time, smoking a bit of pot, getting a silly hairstyle, being fired or joining the Green party. But travelling half way around the globe to fight for an organisation that sees modernity and modern people as evil objects – erm well that dosen’t quite qualify for happy-go-luckyness gone wrong to me.
I’ve no time for people like that. The endless war is still raging and must end, habeas corpus in Australia has been urinated on by those allegedly fighting for our freedom, and there are plenty of others worldwide and in Australia worthy of public attention and debate.
(PS I would love to be the judge of anyone who signs up or collaborates with nihilist terrorists, wouldn’t you? Or would you prefer to line up behind them?)