David Hicks is luckier than some

In some ways David Hicks, otherwise known as Mohammed Dawood, is fortunate. The Americans quite reasonably believe he enlisted with, and gave comfort to, the leadership of their enemy, the one responsible for several terrorist outrages, including 9-11.

His good luck began when the Northern Alliance decided he was valuable alive. His luck continued when he ended up in the hands of the Americans.

To anyone who doubts that, ask yourself one simple question: which other power would appoint an officer, Major Mori, not only to defend him but also to allow to travel the world admonishing the US government, and his Commander-in-Chief, decrying American law, and promoting Hick’s interests in the media?

There can be no doubt that under the laws of war, the US is entitled to keep Hicks until the end of hostilities. That happens to regular soldiers not suspected of committing war crimes, including those of our diggers who spent years in POW camps. Unlike Hicks, they too often fell into the hands of powers who behaved barbarically.

Guantanamo Bay is no tourist resort, but it certainly isn’t Changi. To liken it in any way to a Nazi death camp, a theme one lawyer relayed recently, is not only mindless hyperbole, it is an insult to the memory of holocaust victims.

There are no grounds under international law for any Australian (or indeed British) government, to compel his release. Unless the US administration can be persuaded he is not guilty of war crimes, they say he will only be released if he is prosecuted for war crimes here. With legal advice that no prosecution could lie, no Australian government, acting in good faith, could give an undertaking to prosecute.

Having already obtained the considerable concessions ruling out capital punishment and that any sentence imposed be served here, no Australian government could realistically do more than ask that charges be laid soon, and, in the meantime, provide consular and legal assistance. This they have provided lavishly - to the tune of hundreds of thousands of dollars. Yet this is neither much acknowledged nor reported. If it were, what would the average Australian say?

Contrary to popular myth, Hicks has been charged. His trial was stayed until the Supreme Court considered an ultimately successful constitutional challenge. It is disingenuous then to blame the Americans alone for the delay, or to say he has never been charged.

With so many pro bono lawyers working for the detainees there will certainly be another constitutional challenge. The danger for Hicks is he may then be persuaded to seek another stay. Without saying the military commissions are now bullet proof, they conform with the concerns of the Supreme Court majority, which is likely to be strengthened by the new Chief Justice.

A lot has been made about the sort of evidence that can be admitted against him.

The truth is that there is no hard and fast standard as to what should be admissible. The rules change from time to time, and it is not helpful to keep on saying that it is better that 100 guilty people go free rather than that one innocent be imprisoned. We all know that. The question is where do you draw the line.

Hitherto this has been set under the influence, not so much of the victims of crime or the public, but those more sympathetic to the accused - trial attorneys, and the bien pensants. But whatever is appropriate for the domestic criminal justice system, war is different. The rules of evidence in the Nuremburg and Tokyo war crimes trials were certainly not those prevailing in our criminal courts today.

President Clinton is said to regret, as his worst decision, not arresting bin Laden on a flight to Afghanistan. He did this on FBI advice that the charges would not stand up in a US court only because the evidence would have been inadmissible.

That such evidence can be considered by a military commission is neither unusual nor outrageous. This sort of evidence can be considered here by a Royal Commission or in a coronial inquest, and, incidentally, in criminal trials from Paris to Tokyo. And just because evidence is admitted, this does not mean it will be decisive. The commission will weigh its value. For those who predictably say they will all be US officers, pray tell, just what is Major Mori?

If he wishes to be home soon, Hicks would be well advised, once he sees the new charges, to try to negotiate a plea bargain. In return for a plea of guilty he would seek a reduced sentence with the period of his detention taken into account. It could make his stay in an Australian prison very short.

He may try to have the Americans agree not to make public any of the evidence against him. This would be against the public interest - Australians are entitled to know what he was doing in Afghanistan. And Hicks will probably tell his own story - for a profit. (If he does he should have to refund the vast sums the taxpayer has spent on him.)

The Americans would be well advised to require he agree not to test the legality of any imprisonment served here through a habeas corpus application. The reduction of a higher sentence could be conditional on this. (If he breached this and were successful, he would be well advised to rule out any international travel.)

What is most unfortunate about this case is the vilification of our close ally and the use of untruths and the suppression of fact to achieve that. The United States is not perfect, but among the powers that count, and have counted over the last century, there is none more generous, more respectful of the law, nor more loyal to her friends.