82 thoughts on “Hicks and treason”

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 A further difficulty is opposing the ADF in Howard’s term but going to trial under a later PM like Rudd who may have withdrawn the military.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. 3% of the vote(IMHO) 10% if he dies

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

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

   Foreign Minister Alexander Downer says.

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

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

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

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

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

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

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

    ” All power corrupts; absolute power corrupts absolutely”

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

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

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

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

12. [P.M.Lawrence wrote]

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

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

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

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

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

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

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

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

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

    1. a guilty plea by Hicks, and

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

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

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

    Well, would YOU?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17. “Well, would YOU?”

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

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

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

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

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

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

19. Gandhi asked”

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

    “Well, would YOU? ”
    —–

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

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

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

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

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

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

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

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

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

    There is no legal consistency from the Free Hicks supporters.

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

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

22. Razor wrote:

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

    Does this make any difference:

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

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

    Australian troops set to fight

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

23. jquiggin wrote:

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

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

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

24. Folks,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34. Razor wote:

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

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

35. It sounds very believable to me.

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

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

    Gosh, perhaps none of our boys are surrendering?

    Does anybody find this unbelieveable?

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

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

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

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

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

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

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

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

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

41. (No prisoners in Afghanistan?)

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

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

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

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

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

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

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

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

42. Brian #25

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

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

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

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

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

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

    Ask the Japanese or the Germans.

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

43. Jill Rush wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

44. ERROR!

    Last 5 paragraphs above were from previous poster

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

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

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

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

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

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

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

50. steve wrote:

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

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

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