David Hicks’ trial and his detention are two entirely separate questions. The US Supreme Court ruling changes nothing about the right under international law to detain enemy combatants for the duration of hostilities. Those many Australians held in Changi and other hell holes are testimony to that.
But unlike Hicks, they were not well fed, and they certainly were not allowed to pursue their education. They suffered the most barbaric treatment, even death. They had no lawyers assigned to them, not only to plead their cause, but also to maintain their innocence in the world’s media. The US administration kept their detainees according to Geneva Convention standards even when they thought they were not legally obliged to do so. Just compare that with the way Australian POW’s were treated in the World War II.
The only effect of the recent ruling by the US Supreme Court, invalidating the law establishing the military commissions under which Hicks was to be tried, will be to delay the process until new legislation is agreed. Those who say that Bush and Howard should have anticipated this overlook the fact that litigation in a democracy is always unpredictable - the second most senior US court had earlier unanimously endorsed the original process.
Congress had legislated to strip the courts’ power to hear habeas corpus petitions in these cases. The Supreme Court ingeniously found that pending cases slipped through and were unaffected without, as dissenting Justice Scalia remarked, citing a single case supporting this in Anglo-American law.
Finding the military commissions lacked congressional authority, the majority said they breached US military law and the Geneva Conventions requirement that any trial afford “all the judicial guarantees recognized as indispensable by civilized peoples”. Crucially, the Court did not rule that the process was unconstitutional, so the administration is free to map out a process acceptable to Congress.
Some of the judges expressed concerns about the way the commissions were to operate, particularly the power to hear certain sensitive security evidence in the absence of the accused. This could only be heard if the commission believed a fair trial was still assured and his military counsel was present. They also had concerns about admitting hearsay and coerced testimony.
It would be easy to assume that compliance with the Geneva Convention standard can only be attained by following the current criminal laws of the English speaking countries, which concentrates on excluding evidence from the jury. But there is no jury in the military justice system, nor indeed in many foreign criminal courts.
The danger in extending what many see as the current fashionable indulgence of the criminal to the conduct of war was demonstrated by the Clinton administration’s assumption that alleged terrorists should have what David Hicks’ supporters demand - a trial in a regular US criminal court.
Even after the bombing of the World Trade Center, and subsequent terrorist outrages elsewhere, President Clinton allowed bin Laden to escape from Khartoum without his plane being intercepted. Legal advice from the FBI had indicated that crucial evidence could not be used in a US criminal court. Bin Laden was thus able to continue his terrible campaign culminating in 9-11. Understandably, President Clinton is said to consider this his greatest mistake, one which President Bush and the Congress are determined not to follow.
The lesson is one which is easily forgotten. War is tough on soldiers and civilians. A trial of an accused terrorist, while fair, cannot be hindered by some of the indulgences advanced in peace time. We certainly did not do this when the nation was under attack. A military court should be able to hear and, most importantly, weigh all the evidence, including evidence not normally admitted in a jury trial in a country at peace.
It seems that the administration has at least a triable case against Hicks. Rank and file Australians know this, which is why they have little sympathy for the vociferous campaign in his favour. He deserves and is entitled to a trial, where all the relevant evidence can be considered, not about his detention, but about the very serious charges brought against him.
And if he is found guilty, he will serve any term of imprisonment here, with the resulting opportunity to challenge its validity in our courts.
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