David Hicks: Why has he not yet been bought to trial in Australia?
Habeas Corpus: Law a prerogative writ directed to someone who detains another in custody, commanding them to produce the other person before the court. It is mainly used to test the legality of an imprisonment. Macquarie Dictionary
David Hicks is charged with conspiracy, attempted murder and aiding the enemy. But the charges are significant for what they do not spell out. Though they are extremely serious, there is no allegation that Hicks killed or specifically harmed anyone.
His captors insist that he trained in al-Qaeda camps, guarded a Taliban tank at Kandahar airport and travelled to Konduz in northern Afghanistan to join Taliban engaged in combat against US-led forces. They say he intended to kill coalition combatants in Afghanistan between September and December 2001. They insist he aided al-Qaeda and the Taliban in the context of armed conflict. There are, however, some puzzling aspects, such as the claim that Hicks translated al-Qaeda training material into English from Arabic, a language of which he is believed to have had only a limited command.
The legal limbo in which Hicks and other detainees are held means they have been unable to invoke the writ of habeas corpus. They are held on Cuban soil, leading to the technical legal argument that this exempts them from the protection of the US constitution and the normal legal protections to which a prisoner is entitled. They have been held as enemy combatants, not prisoners of war, and so have been denied the protections of the Geneva Convention. Yet the charges against Hicks relate to warlike conduct.
Through the willing surrender of two of its citizens to this process, the Australian Government has set a dangerous precedent that should alarm all Australians. The military commission that will hear the case against Hicks is an extension of the US executive, not an independent tribunal. It is answerable ultimately to a US President who has called those in Guantanamo evil people.
This is second-class justice. Even alleged terrorists are due their day in court. Nothing in these latest developments overtakes belief that the fate of Hicks should be decided under Australian law or before a properly constituted international tribunal, not by the US military.
[Major Michael Mori - Military Lawyer for David Hicks claims the five year delay, so far, in bringing David to trial is due to the fact that he did not violate any international law so the US had to make up charges and an unfair system that would rubber stamp the charges without question. Had the US used a real court system like the courts-martial, we could have had a trial within the first year. But of course, David would have been acquitted which would not have served the political agendas in the US and Australia.
All David has wanted is a fair trial and Australia did nothing to obtain that for him since a fair trial would have proven David's innocence.
David's father Terry said the United States government was keeping his son in detention at the Cuban naval base as a scapegoat following the release of other western prisoners, including fellow Australian Mamdouh Habib.
Mr Hicks said David was the only westerner left among 540 prisoners at Guantanamo Bay.
I think David's the token white fella, he told the Australian Associated Press [AAP.
They're going to try and make an example out of him, particularly to the western world, that this is what happens if you play with fire.
David Hicks was granted British citizenship in December 2005 but his five-year battle for freedom again fell into limbo when the British government appealed the High Court ruling.
The US and the British governments have an agreement that British detainees will not face the US military commission.
But unlike the nine other Britons who have been released from Guantanamo Bay, Hicks has been charged - with conspiracy to commit war crimes, attempted murder and aiding and abetting the enemy.
November 8, 2006: Irish rockers U2 used the opening concert of their Australian tour to campaign for terrorist suspect David Hicks to be released from Guantanamo Bay.
The super group's front man, Bono, raised the Hicks case during a concert at the Queensland Sports and Athletics Centre in Brisbane. Bono, said Hicks should be released from the Guantanamo Bay detention camp in Cuba, where he has been since 2001. We call for David Hicks to be brought back to Australia, he said.
Although Australian Attorney General Philip Ruddock announced in August that the government would push for Hicks' return to Australia, Canberra has not made any such statements since that time.
In September, Ruddock said he had demanded the trial be dealt with as quickly as possible. We want to see it resolved as soon as possible, but we have to be realistic, he was quoted as saying in the September 29 Sydney Morning Herald.
This sounds good, but the truth is that neither Ruddock nor John Howard have pressed Washington to release Hicks, as the Blair government did for the Britons incarcerated in Guantanamo.
Australians are outraged at Hicks being denied justice and a News poll taken over September 1-3 found that more than 55% believe Hicks will not receive a fair trial under US jurisdiction.
John Howard, Phillip Ruddock and foreign minister Alexander Downer's acquiescence to the new US military commission law means that they are also in favour of denying habeas corpus, and possibly not just for Hicks.
A message sent from Australia's Washington embassy to Mr Howard's office in July 2005 outlines the findings of the US Navy investigation. The message, obtained under the Freedom of Information Act, said an extraordinary effort was made by the US Navy to investigate allegations of abuse.
It concluded: The Australian Government's regular visits to Mr Hicks have enabled us to assess firsthand [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 Australian Government's acceptance of US Navy investigation, allegations of abuse against Mr Hicks and other detainees continue to be made.
He's pretty down. He's not well and it's very hard talking to him, Terry Hicks said.
Explaining to him about the British citizenship, he's now at that point where he doesn't really care.
David had been sexually and physically tortured and had endured 18 months' solitary confinement during his incarceration, I think that would bring anybody to their knees, his father said.
Terry Hicks slammed the Australian government for its lack of support, particularly after its involvement in the cases of drug traffickers Schapelle Corby and Van Tuong Nguyen.
Terry says here will be an appeal against US legislation that provides a new framework for military trials. The new legislation also allows tough interrogation and the indefinite detention of terrorism suspects.
It was recently signed into law by US President George W Bush.
Terry Hicks says there is not much change to the last model for US military trials, which was ruled invalid by the US Supreme Court.
David's defence team will ... appeal against this, it'll have to go through the Federal Court of America to start with, then it'll work its way through the Supreme Court.
That could take upwards of two years, so David will be stuck there for another two years. he claims.
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.
Former US Secretary of Defence Donald Rumsfeld: 'Detaining enemy combatants provides us with intelligence that can help us prevent future acts of terrorism. It can save lives and, indeed, I am convinced it can speed victory.' Rumsfeld approved a range of measures for use against reluctant prisoners, including solitary confinement - which could be administered in repeated, back-to-back doses of 30 days - chaining people for hours in chilled or heated interrogation rooms, and what he euphemistically called 'sleep adjustment' - in other words, deprivation.
Vincent Cassard, head of the Red Cross inspection team, said the relentless interrogations were having serious consequences for the detainees' mental health.
The International Committee of the Red Cross [ICRC feels that interrogators have too much control over the basic needs of detainees that the interrogators attempt to control the detainees through use of isolation. The interrogators have total control of the level of isolation in which the detainees were kept; the level of comfort items detainees can receive; also the access for basic needs.
Cassard gave the example of interrogators' deciding that unco-operative detainees would not be allowed books. Again Cassard told him that the Red Cross team had heard so many prisoners say that books and other 'comfort items' were confiscated for refusing to talk that they believed this must be true. Miller replied that 'he would listen to the allegations, but he had given the ICRC the accurate facts'.
Major-General Geoffrey Miller made no secret of his belief that subjecting the unco-operative to harsher conditions had boosted the yield of intelligence. 'We are developing information of enormous value to the nation, enormously valuable intelligence,' he said with passion. 'We have an enormously thorough process that has very high resolution and clarity. I think of Guant?namo as the interrogation battle lab in the war against terror.'
Shafiq Rasul, one of the Tipton Three from Staffordshire, who was freed in March 2004, described the effect of Miller's system, which after three months' in solitary led him to make a false confession of attending a 9/11 planning meeting with Osama bin Laden and the fanatical Mohamed Atta in Afghanistan in January 2000. He was told the meeting had been videotaped.
Rasul claims,' the walls [of the interrogation room were rusty, and they seemed to be soundproofed. There was no ventilation; it was hot in there. One interrogator told me that anyone who was in Afghanistan was guilty of the murders of 9/11 - even the women and children killed by the American bombing.
'But they said my position was much worse, because the meeting in this video was to plan 9/11, and loads of people had told them that this guy in a beard standing behind bin Laden was me. I told them that in 2000 I didn't leave the country that I was working at the Wednesbury branch of Currys, who would have my employment records. They told me I could have falsified those records - that I could have had someone working with me at Currys who could have altered the data the company held, and travelled on a false passport.'
Finally, as his isolation continued and the interrogators deployed their full range of techniques, Rasul said, he cracked. In a final session, a senior official had come down from Washington: 'My heart is beating, beating, I'm saying it's not me, it's not me, but I'm thinking: I'm going to be screwed, I'm on an island in the middle of nowhere, there's nothing I can do.
This woman had come down and she plays me the video. I say: Are you blind? That doesn't look anything like me. But it makes no difference. I'd got to the point where I just couldn't take any more. Do what you have to do, I told them. I'd been sitting there for three months in isolation, so I say, Yes, it's me. Go ahead and put me on trial.
The time has come for the Australian public to stand up and demand that their government return David Hicks home to face his so-called wrong doings here in Australia. With the ever growing threat of a terrorist attack here in Australia, it would seem good practice for our court system to trial Hicks for possible terror allegations.
About the Author
Australian Writer
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