Bring David Home
"David Hicks has committed, it seems, thought crime against the United States and is being detained and tormented by people unaware of his rights.
 It's unlikely they know this, and they should be told." Bob Ellis
(Australian writer - quoted during Writers' Week, Adelaide Festival of Arts, March 2002 )

US inquiry into jail abuse a cover-up:
Hicks lawyer Email Print Normal font Large font Richard Baker October 11, 2006 Advertisement AdvertisementA UNITED States Defence Department investigation that found David Hicks suffered no abuse while in US custody was the "biggest cover-up of all time", his US military lawyer says. Major Michael Mori, who has represented Mr Hicks since 2003, said last year's Navy Criminal Investigative Service investigation was a whitewash, and that his own "minimal investigations" had confirmed his client had been physically abused. Major Mori told the Herald that it was likely that Mr Hicks had been stomped on during his detention. He had also been able to verify that Mr Hicks, 31, had had his head "rammed in" when detained by US forces in Afghanistan, rendering him unconscious. Major Mori said four other Guantanamo detainees had corroborated another claim by Mr Hicks that he and other detainees were subjected to random beatings by their guards. He said the US Navy investigation did not accept the testimony because the detainees were hooded and could not visually confirm the allegations. The Prime Minister, John Howard, and other senior ministers have relied on the US Navy investigation to reject allegations of abuse against Mr Hicks and a former Australian detainee at Guantanamo, Mamdouh Habib. A cable sent from Australia's Washington embassy to Mr Howard's office in July last year outlines the findings of the US Navy investigation. The cable, obtained under the Freedom of Information Act, said "an extraordinary effort" was made by the US Navy to the investigate allegations of abuse. It concluded: "The Australian Government's regular visits to Mr Hicks … have enabled us to assess first hand [the US] Department of Defence's treatment of Australian detainees at Guantanamo Bay. "The Department of Defence treats all detainees humanely. They are provided food, religious materials, shelter, medical care, mail service, reading materials and clothing." Despite the Government's acceptance of US Navy investigation, allegations of abuse against Mr Hicks and other detainees continue to be made. Last weekend fresh claims of abuse emerged, with an affidavit from a US marine who said guards bragged about routinely beating inmates. The marine told of one guard who bragged about slamming the head of a detainee into a cell door. His statement said other guards spoke of hitting detainees and denying them water 

       

   Writ seeks access to Australian al Qaeda

The  lawyers, who are also acting for British detainees Shafiq Rasul and Asif Iqbal, say they have launched the action in the Federal Court in Washington and have named President George W. Bush and Defense Secretary Donald Rumsfeld as respondents. The writ claims the three detainees are entitled to the same legal rights as American Taliban John Walker Lindh, who is currently being tried in the U.S. The lawyers said they were seeking a process to determine the legality of their clients' detention. Hicks' father told Australian media Wednesday he just wanted his son to be brought back to Australia so he could receive "a fair go". CNN.com Asia More news from our Asia edition "It is for this reason I have instructed lawyers to issue the petition on his behalf," the Associated Press reported Terry Hicks as saying. "If David has done something wrong, then he should be brought home and tried by an Australian court." Hicks said his family had written 25 letters to their son in the past two weeks but they were not sure if any had been delivered to him in the Guantanamo Bay complex. He said so far the only contact that he had had with his son had been a letter delivered by the Red Cross last month. The lawyers said the holding of Hicks and the others "incommunicado" for an indeterminate period was a breach of the U.S. Constitution. Hicks, 26, was captured by Northern Alliance forces in December last year and was handed over to the U.S. military before being one of the first detainees transferred to Cuba. Senior member Described as a "soldier of fortune", Hicks converted to Islam while fighting for the Kosovo Liberation Army in Bosnia. The Australian government says it is comfortable with the U.S. holding and questioning Hicks, and is confident he will be handed over to Australia for trial should he be found to have charges to answer. Australian and U.S. security officers have already interrogated Hicks, who is believed to have been a relatively senior member of suspected terrorist mastermind Osama bin Laden's al Qaeda network. The Australian government said Hicks moved to Pakistan in November 1999 and trained with the Lashkar-e-Taiba, one of dozens of Islamic groups fighting to wrest control of Kashmir from India. He then moved to Afghanistan last year and trained with bin Laden's network, the Australian government says.

Hicks denied access to Australian lawyer
  Friday, 13 January , 2006 08:16:00
Reporter: Krista Eleftheriou TONY EASTLEY:
As Australian terror suspect David Hicks begins his fifth year in detention at Guantanamo Bay, his Australian lawyer's latest attempt to travel to Cuba has been rejected. David McLeod says the Government isn't providing enough legal aid funding to adequately represent Mr Hicks, and the latest refusal for legal aid is just another in a long list of basic rights that Mr Hicks has failed to receive since his capture in 2001. Krista Eleftheriou reports. KRISTA ELEFTHERIOU: For four years David Hicks has spent 23 hours each day in a prison cell. In that time he's been permitted to see his father Terry Hicks once and speak to him on three other occasions - the last time on Christmas Eve. TERRY HICKS: He was pretty down, but after speaking for 38 minutes his spirits were up. KRISTA ELEFTHERIOU: David Hicks has been charged under US law with conspiracy, attempted murder and aiding the enemy, but he's yet to face the military commission. The British High Court last month found he had a right to British citizenship. His lawyers hoped it would force that government to call for his release from Guantanamo Bay, as it did for nine of its citizens once held at the prison. But the British Government is appealing the court's decision. Australian lawyer David McLeod says he's hopeful pressure from some Coalition members may bring about change in policy towards David Hicks within Australia. DAVID MCLEOD: We remain hopeful that the Australian Government will follow the same course as the UK Government and say enough is enough. KRISTA ELEFTHERIOU: But it seems unlikely. Federal Attorney-General Phillip Ruddock wants David Hicks to be tried in the military commission. PHILLIP RUDDOCK: At the moment it's not proceeding, because Mr Hicks, through his legal advisers, is seeking to delay it. KRISTA ELEFTHERIOU: The US Federal Court last year ruled the military commission was unconstitutional. But the US Senate has passed legislation blocking Guantanamo Bay detainees from accessing US courts. Both his Australian and US lawyers claim David Hicks won't receive a fair trial in the US military commission. David McLeod: DAVID MCLEOD: It allows in evidence obtained under torture, it allows in hearsay evidence, it allows for evidence to be put in without having to call the witness who made the statement. KRISTA ELEFTHERIOU: David McLeod has approached the Federal Government for legal aid funding to visit David Hicks. But that request has been rejected. Attorney-General Philip Ruddock has defended his department's decision. PHILIP RUDDOCK: We've provided more than $200,000 worth of financial assistance to Mr Hicks's defence team, and judgements are made by appropriate officers as to whether or not grants should be made. KRISTA ELEFTHERIOU: Meanwhile David Hicks's American lawyer will travel to Guantanamo Bay shortly to plan his future legal options. TONY EASTLEY: Krista Eleftheriou ending that report.

Don Rothwell
University of Pittsburgh School of Law

FORUM Op-eds on legal news by law professors and JURIST special guests.
.. David Hicks and the US Military Commissions Process: Next Steps
JURIST Guest Columnist Don Rothwell of ANU College of Law, Australian National University, says that while passage of the new Military Commissions Act in the United States presents new challenges for Australian Guantanamo detainee David Hicks, it also creates an opportunity for the Australian government to reconsider its erstwhile refusal to press for the protection of his rights...

The recent passage of the Military Commissions Act by the US Congress has attracted attention on the other side of the world. An Australian, David Hicks, has been held at Guantanamo Bay since early 2002 following his detention in Afghanistan in December 2001. Not only is Hicks one of the longest-serving Guantanamo detainees and the only Australian currently being detained, but he was charged under the original military commission process. The Australian government anticipates new charges will be laid against Hicks in the future. Compared to other major coalition partners, Australia has been mostly silent as to the plight of its nationals held at Guantanamo. No concerns were raised over alleged torture and mistreatment claims made by Hicks and the other Australian at Guantanamo, Mamdouh Habib (who has since been released). Likewise, few concerns were expressed over the military commission process itself. When complaints were raised within Australia over the delays in bringing Hicks to trial, the Australian government even sought to lay the blame on the Hicks legal team for joining in the appeals challenging the validity of the original military commissions. Notwithstanding Australia’s legitimate right to call upon the US to ensure that any trial of Hicks is consistent with US and international legal standards and that his treatment whilst in detention is in conformity with international law, the Howard government has instead preferred to take a minimalist position towards exercising diplomatic protection of one of its citizens. Even considering the initial refusal of the US government to apply Geneva Conventions Common Article 3, the conditions under which Guantanamo detainees have been held and the extraordinary trial procedures of the military commissions, the Australian government insisted that what was occurring was perfectly legal and referred to its own internal legal advice in support of that position. Whilst the Australian government has not exactly backtracked since the recent US Supreme Court ruling in Hamdan it has urged the US to put in place an alternate process and bring Hicks to trial as soon as possible. Australian Attorney-General Philip Ruddock was in the US at the time of the passage of the Military Commissions Act and had discussions with Alberto Gonzales about the Hicks case. Ruddock seemed satisfied with the Act, and has controversially stated that sleep deprivation would not be contrary to the torture prevention previsions of the Act. What then are the possible scenarios for Hicks at this point? The prospect that he may be returned to Australia to face trial can be immediately ruled out. The Howard government has consistently maintained that it does not have the legal capacity to try Hicks for war crimes or acts of terrorism due to a deficiency in Australian law at the time of the events of 2001. The first option then would be that fresh charges are laid under the Military Commissions Act and Hicks is eventually convicted. The original 2004 charges against Hicks included being a member of an al Qaida criminal conspiracy to commit - amongst other acts - attacks upon civilians and civilian objects and terrorism, attempted murder against Coalition forces whilst not enjoying combatant immunity, and aiding the enemy. What fresh charges may be brought remains to be seen, though it is important to note the doubt the Supreme Court cast over conspiracy charges in Hamdan. If Hicks was to be convicted then two outcomes seem certain. The first is that he would not be subject to the death penalty. The recently arrived US Ambassador to Australia, Robert McCallum, made that clear during his first Canberra press conference. The second, is that Hicks would be eligible for return to Australia under a deal which would allow him to serve part of whatever goal term he faced in Australia. The second option for Hicks is that he challenges the validity of the Military Commissions Act, or that his trial is delayed as a result of challenges brought by others. Given the concerns which have already been raised over the Act by Amnesty International, the American Civil Liberties Union and by legal scholars, there is every prospect that this will occur. By the time the various appeals have been heard and final rulings issued by the Supreme Court, this could be another few years of Hicks’ life spent at Guantanamo. Even if Hicks were found not guilty of any charges brought against him, this would not automatically result in his release. No matter what interpretation is placed on the circumstances of his original detention in Afghanistan, the US would seem within its rights to continue to maintain that Hicks is a prisoner of war who can continue to be detained until the end of hostilities. While that is a position consistent with the Geneva Conventions and one which has been advanced in Australia by Ambassador McCallum, presently it is difficult to foresee when a formal cessation of hostilities with terrorist forces will occur. Under this scenario, Hicks could possibly face indefinite detention as a POW. Of course some Guantanamo detainees have been released, however, almost without exception the released detainees had not been charged, were no longer considered useful for intelligence gathering, or were from countries which actively challenged the legitimacy of their detention. Hicks does not fall within one of these exceptions. With Hicks’ de facto POW status now effectively confirmed there is the potential for the Howard Government to request his transfer to Australia. As both a party to the Geneva Convention and also the Afghan conflict, there is nothing under international law which would bar such a transfer. For the time being, the Howard Government persists in its support of the revamped US military commission process. But can it legitimately continue its unquestioning support of the US when its previous legal advice has been shown up by the Supreme Court as wrong and when there are possible flaws with the new Act? Australia’s support for the US position in its campaign against international terrorism is understandable in political terms – it must not be forgotten that Prime Minister Howard was in Washington on 11 September 2001 and that Australians have borne the brunt of terrorist attacks in Bali. The ANZUS Security Treaty has also provided a framework for Australia’s close military and security cooperation with the US since 2001. However, Australia needs to maintain a balanced approach between support for one of its closest allies and protection of one of its citizens. One way forward would be for the Howard government and the Hicks legal team to jointly seek independent legal advice on the constitutional and international legal validity of the revised military commissions. If such advice – which should be publicly released – supports Hicks being tried, then the government can with some confidence continue its current policy of support for the US position. If not, then a more proactive position needs to be taken to ensure Hicks’ rights are protected. No matter what David Hicks is alleged to have done, as an Australian citizen he remains entitled to the protection of the law and of the Australian Government. The US would be doing exactly the same for its own if they were detained in Australia.

Donald R. Rothwell is Professor of International Law, at the ANU College of Law, Australian National University, Canberra, Australia

October 11, 2006

The Trial of David Hicks
1 August 2003
 Siobhan Mullany, Chair of the Criminal Law Action Group Josephine Park, PhD Member After the World Trade Centre attack on September 11, 2001 the US Congress authorised the US President to use all necessary force against those responsible for the September 11 attacks. Not only did President Bush commence operations in Afghanistan, he also issued a Military Order that certain people be detained and tried by US military tribunals. The announcement last week by the United States that an initial list of 6 suspects, including Australian David Hicks, may face trials before specially constituted military tribunals caused uproar among many Australian lawyers. The Tribunals Before September 11 2001, acts of terrorism were dealt with as crimes in the ordinary criminal courts. Bush's Military Order stated that the normal procedures for trials would not be practicable and made the extraordinary decision that the Secretary of Defence, Donald Rumsfeld, was to establish the rules for the tribunals. Controversially, the Military Order only applies only to non-US citizens. There was outrage from legal sectors in Australia and in the UK when President Bush released the names of a select 6 people, out of the over 600 held in Guantanamo Bay, who the US determined would be tried before military tribunals. Hicks was one of the 6 named. Pursuant to Rumsfeld's rules, Bush has determined that the 6 foreigners to be tried: are past or present member of al Qaida; engaged in or assisted in terrorist activity against US citizens, national security, foreign policy or the economy; or knowingly harboured people from paragraphs (i) or (ii); and it is in the interests of the US that they be subject to the Order. David Hicks was captured by the Northern Alliance in Afghanistan in late November 2001. He was detained and moved to Guantanamo Bay where he has been held without charge for 20 months. Hicks' continuing detention was the subject of a challenge in the US courts, however the decision was made that the US courts had no jurisdiction to decide the matter because Guantanamo Bay was not US sovereign territory. The Military Order specifies that the charges to be laid against Hicks and the 5 other foreigners to be tried, are for violations of the laws of war and any other applicable laws. To date, no charges have been specified against Hicks. Of concern to many Australians is that the charges will determine the possible sentence, and the Military Order clearly states that the sentence can be death. Procedures in the trial Military tribunals generally adopt the procedures for courts martial. Over time these procedures have improved and now generally mirror those of the ordinary criminal courts. The US is a party to the International Convention on Civil and Political Rights which describes certain standards and procedures that should be used in all courts and tribunals. The Uniform Code of Military Justice generally follows those procedures but it also allows for those procedural safeguards to be disregarded. The procedures for the conduct of the military tribunal's for Hicks' trial is laid down in the President's Order and the Secretary of Defence's Rules. The Order states that "...it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts. 1.(f)" and "admission of evidence as would, in the opinion of the presiding officer of the military commission . . . have probative value to a reasonable person 4.(c)(3)." The US National Association of Criminal Defence Lawyers outlined 16 ways the Rules provided by Rumsfeld would be unacceptable under the Uniform Code of Military Justice. Some of these are the following. There is no challenge to the tribunal members. The accused need not be present during proceedings. The accused cannot be informed of certain events that take place during his absence. His civil defence counsel cannot be informed of events during those closed sessions. The presiding officer does not have to make binding rulings of law. No maximum penalty is specified. It is not specified what charges result in the death penalty. There is no double jeopardy rule. No rules of evidence or their equivalent apply. There is no appeal, not even to the usual Court of Appeal for the Armed Forces. There is a failure to allow the accused to confront all witnesses including those sessions where he is excluded. There is a failure to exclude unreliable evidence such as unsworn statements. The problems with trials that allow compromises to the rules of evidence and procedure are obvious to all lawyers. They result in wrongful convictions and undermine the confidence in the system of justice. The rules for the military tribunal also undermine client/lawyer confidentiality. The client's communications with his lawyer will be recorded by the US military. John Smith assured the ABC listeners that that information would not be used against him in his trial. That does not provide any comfort. It can be used in other trials and there is no double jeopardy rule. Also it may be used for tactical purposes. It undermines the trust between a client and his lawyer that is essential to run a competent defence. Appeals The Military Order states that there are no appeals from the military tribunal to the ordinary US courts. It further states that the decision of the tribunal can be reviewed by the Secretary of Defence. The Secretary of Defence has delegated that power to three military officers appointed by Rumsfeld who will deliberate behind closed doors. Previous case law has held that appeals are possible to US courts if there is a connection to the US, for example if the person appealing is a US citizen or the offences occurred on US soil. General Yamashita, the Japanese commander in the Philippines during WWII, had his appeal heard in the US courts because the Philippines was a US possession at the time of the offences. The status of Guantanamo Bay determines to avenues of appeal. At present the case law has held that Guantanamo Bay is not US soil, Coalition of Clergy v Bush, Rasul v Bush and Odah v US. The lack of an appeal to an independent judiciary is a cause of concern. The tribunal members are all members of the military. They are subject to the chain of command. The only appeal is to their superiors who they rely on for daily orders and career prospects. Prisoners of war in the war of terror There has been ongoing criticism of the US's actions in Guantanamo Bay because they do not comply with the international laws in respect to the treatment of Prisoners of War (POWs). It is internationally acknowledged that POW's protected under the Third Geneva Convention of 1949. The US military tribunals proposed to try Hicks are a long way from complying with the provisions of that Geneva Convention. The US response to this is that the prisoners captured in their war against terror and detained on Guantanamo Bay are not POW's. In general, to be considered a POW a captured person must be an obvious soldier of an armed force, however there does not have to be a formal declaration of war to give enemy combatants POW status. The US courts have held that the laws of war applied where there was no formal declaration of war in both the American Civil War and the Mexican Wars. Although US citizens are not included in the President's Order, a case dealing with a US citizen throws light on the court's position on POW status of the captives from Afghanistan. The US Court of Appeals for the Fourth Circuit was of the opinion in Hamdi's Case that fighters in Afghanistan were POWs. Yaser Esam Hamdi was a US citizen fighting in Afghanistan with the Taliban/al Qaeda who was captured by the Northern Alliance. He was sent to Guantanamo Bay and then to the Norfolk Naval Station Brig after it was determined he was a US citizen. A writ of habeas corpus was filed with the US civil, as opposed to military, court. The US court held that: "it was undisputed that Hamdi was captured in a zone of active combat in a foreign theatre of conflict." The court held that it is a political, not a legal, decision whether there is a war, even without a declaration of war. They held that the judiciary recognise their deference to political branches of government in wartime. "the nature of the present conflict [does not] render respect for the judgment of the political branches any less appropriate. We have noted that the political branches are best positioned to comprehend this global war in its full context . . . . . and neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the war making authority entrusted to the executive branches." Hamdi was designated an "enemy combatant". As such he was held to be rightfully detained under the war powers. Also, because of those powers, the role of the court was limited. The court decided only that the government had made a prima facie case showing sufficient facts to support the "enemy combatant" designation. The court went further and said the designation applies to US and non-US citizens. "One who takes up arms against the United States in a foreign theatre of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." Hamdi was captured in a zone of active combat operations abroad in a uniform of sorts, making him an enemy combatant of the lawful type and thus a POW. Based on the US case, Hicks should be held and tried as a POW. On the other hand, on 7 February 2002 the US issued its "Prisoner of War Policy". This stated in essence that Taliban detainees were granted some privileges of POWs but the US did not recognise the Taliban as the legitimate government of Afghanistan so they were not POWs. Al Qaeda detainees were granted less privileges then the Taliban detainees. The al Qaeda declaration of war on the US was illegal under international laws of war because al Qaeda was not a state. That, according to the policy, made the detainees illegal combatants. The status of David Hicks and the others detained at Guantanamo Bay is not known. Justice Mark Weinberg wrote: "The Geneva Convention requires that a competent tribunal be convened to determine POW status of the captured during a military conflict. That requirement has not been met." Under the rules laid down by Bush's Military Order and Rumsfeld's Rules the process of Hicks' trial will not be fair. The US is reverting to processes that have been discredited for over 150 years.