Purely coincidental Hicks release timing

More details of the Hicks plea bargain are now available, and they reek of a political fix.

According to The Age article, the deal was negotiated by the management of the military tribunals, bypassing both the prosecution and the defence:

US Defence Department lawyer Susan Crawford, who oversees the US military tribunals, bypassed the prosecution to reach a pre-trial agreement directly with the defence.

But her actions, interpreted by some US newspapers as a political favour to Bush ally Prime Minister John Howard in an election year, shocked the prosecutors on the case and the American legal establishment.

Lead prosecutor Colonel Morris “Moe” Davis was kept in the dark about the plea deal. He was astounded by the nine-month sentence, telling The Washington Post: “I wasn’t considering anything that didn’t have two digits”, referring to a sentence of at least 10 years.

Ms Crawford’s deal, which includes a gag on Hicks talking to the media for 12 months, also overrode the sentence of the military panel, which had agreed to seven years.

The timing would of course mean that while Hicks’s long nightmare will come to a relatively quick end, nothing will be heard directly from him until safely after the next federal election.

Ruddock and Downer claim no foreknowledge of the deal and that the extraordinarily politically convenient timing was pure coincidence, Ruddock claiming that he “was not aware that the Australian Government had put any view to the Americans on the length of sentence.”

What a strange world in which we live in which our ministers’ most remarkable talent is their incredible ability to not be aware of anything that might be politically inconvenient.

UPDATE: A lengthy, informative, and insightful post from Tim Dunlop at Blogocracy, who digs up more reports of political handprints all over the deal.

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Posted in Federal Elections, Foreign policy, politics
147 comments on “Purely coincidental Hicks release timing
  1. wpd says:

    includes a gag on Hicks talking to the media for 12 months

    How can that ban be enforced? Presumably, Hicks can speak to his father who can then speak to the media. And what if the media run with the story as told to the father? Is the hedia liable for punishment? Is Terry Hicks?

    Surely this ‘ban’ wouldn’t be enforceable against a US citizen?

  2. Katz says:

    The timing would of course mean that while Hicks’s long nightmare will come to a relatively quick end, nothing will be heard directly from him until safely after the next federal election.

    It is quite possible that the uncensored David Hicks will win few friends and supporters.

    Politically, he may be a greater danger to Howard supporters a the voiceless, caged victim of torture and drumhead justice.

    Ratty may have kicked an own-goal here.

  3. Pavlov's Cat says:

    Sorry, I’ve just realised what that looks like. I meant ‘bang on’ as in ‘the nail on the head’, not as in ‘banging on’!

    Once Hicks has become a real, physically present, non-oppressed talking head again instead of an idealised symbol, he could be an acute embarrassment to some of his supporters.

  4. Good point, Katz.

    I never suffered under the delusion that Hicks was a particularly likeable chap. A man who travels the world to fight for one of the most brutally repressive regimes in the world is clearly, at best, an idiot. So, yes, it’s quite possible he will say all manner of stupid things once he’s in front of a microphone.

    All that said, presumably he will be able to give at least a semi-coherent account of his treatment at Guantanamo (and earlier in Afghanistan), which presumably his defence team will be able to provide some corroboration (on the basis that whatever he’s discussing now he mentioned at the time it occurred). It’s hard to see this part of his story reflecting well on their the American or the Australian government, to say the least.

  5. wpd: There is a further suspended sentence which serves as an incentive for Hicks to keep his mouth shut. No, it wouldn’t be constitutionally possible in the United States.

  6. Aidan says:

    Ruddock claiming that he “was not aware that the Australian Government had put any view to the Americans on the length of sentence.â€?

    You really have to sift through these statements. This is not a denial that the Government had done such a thing, merely that he was not aware of it if they had.

    And Howard said this:

    On suggestions that the plea deal was the result of a political fix to halt Mr Howard’s sliding opinion poll ratings, Mr Howard said: “Well, that is ridiculous.

    “We did not impose the sentence, the sentence was imposed by the Military Commission, and the plea bargain was worked out between the military prosecution and Mr Hicks’ lawyers, and the suggestion that it’s got something to do with the Australian election is absurd.”

    Again, not a denial as such.

    Can anyone find Howard flatly denying any involvement?

  7. Katz says:

    Again, sloppy journalism work.

    The critical question is whether any correspondence has passed between any Federal government department or employee and anyone in a chain of command in the US Military Commissions, up to, and including, the President of the United States in his capacity as Commander-in-Chief.

    Was David Hicks mentioned in any of this correspondence?

    I imagine that a US Freedom of Information request may uncover some correspondence.

  8. Adam Gall says:

    Good post and good points all.

    Hicks might be a more reflective and interesting person given his experiences than he may have been at the outset. Or he may be a bit loopy: god knows I would be. Or he might be a dullard who likes to play with guns.

    I’m not sure how many ‘supporters’ that David Hicks actually has to be embarrassed in themselves. The problem is that the ‘Hicks speaks!’ headline will be mobilised rhetorically as an embarrassment – ie. proof that ‘we were right all along’ for conservatives. In that case, we will all be tarred with the same brush as soon as he speaks whether the distinction was made or not between support for him, or opposition to the process itself. It’s all about conflating positions together to produce embarrassment as a mediated characteristic in others. In that sense, yes, the gag order may be politically useful to the opposition.

  9. Spiros says:

    If Hicks speaks and says he was tortured and coerced into his guilty plea, Howard will say, “well, he would say that”. This would not hurt Howard one little bit.

    But Hicks might also say a few other things as well, like how Osama is a top bloke etc, which would be gold for Howard. Kevin Rudd should be very grateful that Hicks will be on ice until after the election.

  10. FaceLift says:

    On the one hand Katz suggests that Hick’s deliberately purgered himself by lying about his guilt, and basically argues that Hicks was framed, and is really an innocent idiot caught in the wrong place at the wrong time, but on the other hand he theorises, via Abibi, that Hicks was ostracised by fellow inmates for being an informer, which would have to imply complicity and therefore a strong degree of guilt by both the ostracisers and the ostracised.

    And of course, reverse political puppetry is in play, where the Howard Government, hitherto, according to leftist theory, stooges in the hands of the Bush Administration, suddenly, over an extremely minor player like Hicks, has the clout to pursuade Bush to help him with the next election by asking Bush to interfere and intervene with his own hard-fought-for revised legal process to manipulate the miltary courts and effectively silence Hicks until after the Australian federal election!

    This logic is a dynamic example of badly agrued, politically motivated conspiracy theory and face-saving denialism. It amazes me how many otherwise bright thinkers go along with this. To suggest that the law has been bent at the expense of an innocent man to accomodate an election outcome is preposterous.

    Then there’s the leftist attack on Kevin Rudd, who has actually shown a very sensible, measured approach to this issue by saying, in effect, lets wait and see before coming up with unproven conspiracy theories! The real political forces here have shown the necessary restraint in their commentary. The theorists embarras themselves, and the opportunists, like Bob Brown, spout unconfirmed conspiracy theory retoric to attract the theorists to their sides (as well as detract from the coal mine closure gaff)!

    Given that he was actually caught in the theatre of conflict on the wrong side, pled guilty for a relatively minor charge, and was only told to serve nine months, I’d say Hicks got off fairly lightly, and will only be too happy to get away from Cuba and keep his mouth shut for a while. And may even be grateful to the Australian Governemtn for forking out $300,000 to assist his legal passage out of Guantanamo Bay!

  11. adrian says:

    To suggest that the law has been bent at the expense of an innocent man to accomodate an election outcome is preposterous.

    Not channelling Lord Downer are we?
    And would you mind enlightening us as to what ‘law’ you are referring to. Certainly the charade that has been played out in recent days has nothing to do with any law that I know anything about.

    And how good of you to comment on the five years of luxury resort living to which Hicks was subjected since you are in a position to know the intimate details of his accommodation for the past five years.

    You don’t have to be a conspiracy theorist to realise that this stinks to high heaven, and that it has Howard and his cohorts grubby paws all over it. Indeed wasn’t it our dear leader who claimed that he could get Hicks realised whenever he wanted to?

  12. Fyodor says:

    Given that he was actually caught in the theatre of conflict on the wrong side, pled guilty for a relatively minor charge, and was only told to serve nine months, I’d say Hicks got off fairly lightly, and will only be too happy to get away from Cuba and keep his mouth shut for a while. And may even be grateful to the Australian Governemtn for forking out $300,000 to assist his legal passage out of Guantanamo Bay!

    Given that he’s already served five years in a legal black hole without being found guilty by any court of any crime because his craven, corrupt government was unwilling to request its supposed ally release an Australian citizen it was duty-bound to protect, I imagine he’s not particularly grateful, and nor should he be.

  13. tigtog says:

    I’ve never viewed Hicks so much as an innocent idiot, more of a flaming nong with a nasty bigoted worldview at age 25. The question is, just how much punishment is due to a bigoted nong for simply being a bigoted nong fighting for a foreign government, given that fighting for a foreign government is not in itself illegal? Especially when there’s no evidence that the guns he waved around ever did anyone or anything any actual damage?

    The charge of material aid to terrorism (memo to MSM – not being a terrorist) is so broad that simply standing guard over a tank for the Taliban and attending alleged Al Qaeda training camps prior to the 9/11 attacks appears to qualify as offences which allow him to plead guilty for the sake of coming home without perjuring himself. However, seeing as that charge is a civil charge and not a military one, it’s a charge that should have been tested in front of a jury in a civil court, which could have viewed the sufficiency of that action as material aid to terrorism very differently from how the military commission has viewed it.

  14. Adam Gall says:

    Precisely, adrian, the process is always the issue here, and not the man. It is not that surprising given the total absence of due process in any other aspect of the Guantanamo situation that people might be a little suspicious about the circumstances of Hicks’ release.

  15. Adam Gall says:

    Personally, I think Hicks is a particularly unimaginative idealist, rather than a ‘bigoted nong’, but I get your point tigtog – the civil/military distinction is another important one, and some of the implications of this being framed by a military context are also quite disturbing given the charges.

  16. adrian says:

    Why does every second peron who contributes to any discussion on Hicks, begin with their opinion of the man? Who gives a fuck what you may or may not think of him, it is totally beside the point, because it is the system and certain core principles that are the issues, not what someone who doesn’t know David Hick, apart from the crap they read in the MSM, may or may not think of him.

  17. FaceLift says:

    adrian, Fyador,
    I’ve already argued on the other thread that he should never have had to spend five years waiting for a decision to be made.

    But, isn’t it true that his legal team pushed as hard as they could to keep him in Guantanamo bay as long as possible to gain the sympathy of the Australian people (whihc they succeeded in doing), and their latest ‘defence’ strategy included an extension of his stay which was denied by the court? Shouldn’t you be asking them why they were so intent in keeping him there if they were ultimately going to pursuade him to plead guilty anyway?

    Are you saying that Hicks was innocent? It’s regretable I admit, but however long it took to be completed, partly beciause of legal challenges to the legal system, Hicks was detained longer than he shoul;d have been partly becuase of politcal maneouvering, despite this,but do you think he received the appropriate sentence for the crime he pled guilty to?

    In fact you sidestepped my real argument completely by not commenting on the erroneous, left-damaging conspiracy theories which abound and are unfounded.

    tigtog,
    I thank God Hicks was caught before he was in position to harm anyone, although, are we sure of this, since, by his own admission he was trained by terrorists to kill, and actively involved on the front line before his side was routed and he fled.

    Your logic suggests that we can only charge and imprison people after they’ve killed someone, not during the process.

    Alexander had conquered most of his known world by 25. Did that make him a bigotted nong too? How old were the Bali bombers?

    Fighting for a foreign government? When did bin Laden become the head of a government?

  18. John Greenfield says:

    Facelift

    That is the most brilliant assessment of the whole circus the Howard-haters have been running over the past few years. As you so elegantly chart, they have tied themselves into so many knots of paradox, contradiction, and denial that they now sound just plain barmy!

  19. Katz says:

    And of course, reverse political puppetry is in play, where the Howard Government, hitherto, according to leftist theory, stooges in the hands of the Bush Administration, suddenly, over an extremely minor player like Hicks, has the clout to pursuade Bush to help him with the next election by asking Bush to interfere [blah, blah, blah]

    Nice straw man Facelift. And it is quite evident that you are much more adept at whacking away at your giant imagined enemies than you are at confronting actual arguments. Fellahs made out of grass don’t fight back, no matter how big they are.

    On the one hand Katz suggests that Hick’s deliberately purgered himself by lying about his guilt,

    Clearly Facelift can’t read for meaning. On several occasions I have entertained the likelihood that Hicks did some of the stuff he was accused of, including guarding a tank.

    and basically argues that Hicks was framed,

    Depends on what Facelift means by “framed”. Once the Military Commission dropped the attempted murder charge, it’s quite likely that Hicks did the stuff he was accused of doing. But Facelift doesn’t seem to understand that “quite likely” isn’t good enough criminal case. The test is “beyond reasonable doubt”.

    and is really an innocent idiot caught in the wrong place at the wrong time,

    Can Facelift point to where I have ever characterised Hicks as an “innocent idiot”? for the record, I believe him to be a nasty little bigot who distinguished himself from his other Right Wing confreres by acting out his hatreds.

    but on the other hand he theorises, via Abibi, that Hicks was ostracised by fellow inmates for being an informer, which would have to imply complicity and therefore a strong degree of guilt by both the ostracisers and the ostracised.

    Huh? Can anyone make sense of this? I don’t theorise anything. I stated testimony by both Habib and Terry Hicks. I didn’t conclude that Hicks was an informer. I didn’t disagree that fellow inmates believed Hicks, whether rightly or wrongly, to be an informer. Here is the direct quote from the other thread:

    According to Habib, Hicks was more susceptible to torture and to ill-treatment than the general run of Gitmo inmates.

    Moreover, in an interview Terry Hicks mentioned that his son David was vilified and ostracised by other inmates as an informer. Hicks may indeed have been an informer, [or] the Gitmo authorities may have spread that rumour for their own purposes, or Hicks may have been the victim of racist attitudes among other inmates.

    Is Facelift a deliberate falsifier or is he just a little dense?

    If religious fanatic Right Wing Bigot David Hicks had been found properly guilty in a proper court of law of an offence actually current at the time of his offence, I’d say “lock him up”.

    For the umpteenth time, this is about process, not personalities.

  20. John Greenfield says:

    As an Australian citizen I have to ask why is this terrorist Muhammadan being aloud to roam free in only nine months time? I suppose that is the downside of the trade-offs inevitable in plea bargaining.

  21. Geoff Honnor says:

    “But, isn’t it true that his legal team pushed as hard as they could to keep him in Guantanamo bay as long as possible to gain the sympathy of the Australian people (whihc they succeeded in doing),”

    It seems clear that bringing public opinion to bear in Australia, such that the government would be under increasing pressure to bring him back, (and hence bringing plea bargaining to the fore) was a key part of the defence strategy. In that sense, the longer he was in Guantanamo, the more likely it was that the strategy would bear fruit. But I don’t think that’s the same thing as saying that they wanted him to stay there as long as possible. However, the fact that Mori and Crawford appear to have done this deal without reference elsewhere is kind of stunning…..

    The ban on speaking is surely unenforceable in practical terms. Presumably all the guy needs to do is to get his father to offer a perspective.

  22. FaceLift says:

    So then, Katz, admission of guilt in a court of law isn’t enough for there to be no reasonable doubt? There has to be something more to it, doesn’t there? When does an offence cease to be current in law?

  23. adrian says:

    FaceLift, listen carefully, or I will start to think that the later of katz’s propositions regarding you is the more accurate.

    The military commission at GB was NOT a properly constituted ‘court of law.’
    The US Supreme Court found that v1 it was illegal, and will no doubt find the same with v2, since nothingof substance has changed.
    Which part of this do you fail to understand?

  24. Leinad says:

    Geoff: They were also trying to (futilely, as it turned out) to shut down the military commissions as they stood, because they were/are legal black holes, with nothing approaching the standards of a criminal court. Hicks stayed in Guantanamo because the Administration and (as it turned out) Congress were really set on this ‘trying terrists in military courts where we can make up stuff as we go along’ idea and wouldn’t move him to the ‘States.

  25. Zarquon says:

    On the one hand Katz suggests that Hick’s deliberately purgered himself by lying about his guilt,

    Perjury only applies to testimony, not to pleadings. Given that you understand so little of the basics of the legal system, why do you attack the people who are saying the US military commision system is hopelessly corrupt?

  26. Katz says:

    So then, Katz, admission of guilt in a court of law isn’t enough for there to be no reasonable doubt? There has to be something more to it, doesn’t there? When does an offence cease to be current in law?

    1. It wasn’t a court of law, at least not one that recognises the bedrock of British justice: habeas corpus and the right to cross examine witnesses and accusers.

    2. In the absence of habeas corpus, indefinite detention at Gitmo is ipso facto torture.

    3. [Further evidence of Facelift’s inability to read for meaning] Can Facelift find where, when, and how, the charges with which Hicks was convicted came into existence?

    4. Can Facelift explain the difference between the offences of which John Walker Lindh was convicted and those of which David Hicks was convicted?

    5. Can Facelift explain how the Sixth Amendment to the US Constitution applies differently to citizens and non-citizens of the US?

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

    I don’t see any mention of non-citizens there.

    So, my answer to Facelift’s question is very brief. I’ll wait for Hicks’s admission to be made in an actual court of law, conforming with the constitution and procedure of a regime that recognises and respects a consistent and coherent rule of law.

    At present the US does not qualify.

  27. Leinad says:

    Curiously apropros

    Presiding General (Terry Jones)
    (quickly) All right! All right! No need to spell it out! What er … what has the accused to say?

    Pvt. Walters (Eric Idle)
    (taken off guard) What, me?

    Presiding General
    Yes. What have you got to say?

    Walters
    What can I say? I mean, how can I encapsulate in mere words my scorn for any military solution? The fultility of modern warfare? And the hypocrisy by which contemporary government applies one standard to violence within the community and another to violence perpetrated by one community upon another?

    Defence Counsel (Terry Gilliam)
    I’m sorry, but my client has become pretentious. I will say in his defence that he has suffered …

    Colonel Fawcett (Michael Palin)
    Sir! We haven’t finished the prosecution!

    Presiding General
    Shut up! I’m in charge of this court. (to the court) Stand up! (everyone stands up) Sit down! (everyone sits down) Go moo! (everyone goes moo; the presiding general turns to Fawcett) See? Right, now, on with the pixie hats! (everyone puts on pixie hats with large pointed ears) And order in the skating vicar! (a skating vicar enters and everyone bursts into song)

    Everyone :
    Anything goes in. Anything goes out!
    Fish, bananas, old bananas,
    Mutton! Beef! and Trout!
    Anything goes in. Anything goes out. etc.

  28. John Greenfield says:

    As Malcolm Turnbull quite rightly asks, why didn’t Hick’s lawyers push for a plea bargain earlier?

    http://www.theage.com.au/news/national/turnbull-questions-hicks-deal-timing/2007/04/02/1175366114399.html

  29. FaceLift says:

    adrian, the core argument of this post involves the accusation of a political fix, which smacks of conspiracy theory. Which part of that do you not understand?

    I don’t mind being called dense, by the way, but I’m not thick enough to persist with an argument about Hicks’ innocence when he has clearly shown himself and admitted himself to be guilty. Mori probably heard that there was enougyh evidence to put Hicks away for considerably longer if he pled not guilty, so did a wise deal.

    The process being used may indeed be hugely flawed, but let’s see, we want to release these ‘freedom fighers’, who are very probably willing to destroy the lives of innocent people to sustain their religiously bigotted ideals, when in fact we have them under lock and key safely away form harming anyone but themselves (actually, including themselves!), to satisfy civil law, when they have clearly been apprehended operating according to a quasimilitary lawlessness which has no regard for life. So where do we release them? Back into Afghanistan, Pakistan, where? To join up with their Taliban comrades?

    Now, we hear it’s not about personality, yet your arguemnt depends on the plight of one of these people, who is a minor player, but who happens to be Australian, and we want him charged or released because that’s the Australian way, and quite right, but it’s not about personality, right? Yet you use him as your arguing point. You do use opinion to highlight your legal cause.

    The thing about us ‘dense’ people is that they sometimes see beyond the legal jargon and confusion of terms into the sense of true justice, because by law, and by the very weakness of the legal system, you prove anything if you’re smart, accute, cute and QC enough, and the guilty can go free, or the innocent imprisoned, but in true justice, common sense can have more effect, even if it has an air of density compared to rare air of legal ascedancy.

  30. adrian says:

    Dear John,

    Please pay attention. Hicks was only recently charged with an offence, retrospective as it was. Therefore he was not in a position to plead to something before this time, since he he effectively had nothing to plead guilty or innocent to.
    See, not so difficult, was it.

    After Facelift’s last contribution, I’d say dense and proud of it. Shit, why spend all those years studying law when someone with Facelift’s unique insight can cut through legal principles jargon established over centuries and get to the heart of the matter, ‘true justice’.

    No doubt you’ll use the same theory to cut through the medical jargon and confusion next time you’re sick.

  31. Adam Gall says:

    Nobody is going to agree on what is and isn’t ‘true justice’ in every instance, FaceLift, that’s why we have laws and processes that are designed to be applied to everybody and to secure the closest approximation of justice that we can.

  32. FaceLift says:

    One of the things happening here is the realisation that we need a different set of international laws which take into account the prosecution of captured fighters with terrorist links. Secondlly, if the prisoners in GB are accorded the same priveleges as prisoners of war under the Geneva Convention, in effect, the US is giving credibility to terrorist organisations.

    The problem is that political agencies are attempting to interprete international law according to civil, peacetime guidelines when they should be adapting law to conform to brand new requirements which aim at detering and judging terrorists engaged in terrorism.

    Hicks spent more time that he should incarcerated without trial because of these difficulties, and because the attempts at a solution by the US administration were challenged, and will be challenged again. But until the international community can get together and revise the Geneva Convention to include provisions for the detention and trial of known or suspected international terrorists, there will be troubled times ahead for governments who attempt to take prisoners on foreign soil.

    On common sense, I believe Australian public has sympathy with Hicks because they believe he’s probably guilty and a nong, but that five years without trial is beyond enough, and that the boy should be sent home asap despite his flaws, which demonstrates the Aussie ‘fair go’ policy in operation. I don’t think the Australian general population has great love affair with the legal system. They prefer justice.

  33. FDB says:

    Facelift, if you can’t prove someone guilty according to standard criminal law then they are innocent.

    This is a really fecking important tenet of our society.

    Throwing it out and replacing it with ‘what the people want’ is mob rule.

  34. John Greenfield says:

    Facelift

    Indeed one of the more frustrating aspects of the debate is that far too many people reflexively defer to notions of “law” and “justice” that might apply if one is caught shoplifting or embezzling money.

    “International law” is absolutely nothing like “law” as we know it in our civil lives.

  35. FaceLift says:

    adrian, Katz, Zarqon,
    I admitted to a degree of density to get past that argument and help you overcome your elevated sense of importance as obviously smarter because you study and know the law.

    I’m sure the legislaters in the US also know the law, most better than you, yet they’ve come up with something totally abhorent to you. Just shows the weakness of legislators and law doesnt it?

    I don’t have to know the law to what is just.

    I have said it was unjust to keep Hicks imprisoned without trial for so long. That you agree with. I have said that nine months for a guilty plea was fairly lenient. That you don’t agree with because you don’t think he was guilty because you don’t think the process or the court was fair.

    So let’s leave him locked away until we can devise a legal process then. We’ll get you and a bunch of right wing lawyers together into a ‘process’ and nut it out for, how long, months, years? Let’s ask him if that’s OK then! I think he’ll take the nine months!

    We go with the law we have until it’s changed. Does that bring justice? Probably not, but it’s all we’ve git.

  36. Katz,
    You and I do not often agree – but you are (mostly) correct here.
    I just disagree with you on any documentation if a deal was done. Bush and Howard are (hopefully) far to bright to have left an evidential trail on this. A phone conversation, a whispered word from a trusted associate – not letters with any terms spelt out.
    If a deal was done, there would be little or no evidence of it.

  37. Sir Henry Casingbroke says:

    What makes me suspicious of this whole “guilty plea” and Amnesty Phil’s assertion that Hicks could not be charged in Australia is the fact that there is prima facie case to charge Hicks with contravening FOREIGN INCURSIONS AND RECRUITMENT ACT 1978, UNDER THE CRIMES ACT, see LINK

    The penalty is seven years and or a fine of $20,000.

    When Anesty Phil says Hicks could not be charged in Australia, perhaps he means that there wasn’t enough evidence that would be admissible in a properly constituted court, and evidence such as the right not to self-incriminate, invalidity of testimony given under duress, under inducement or under torture.

    Amnesty Phil is on the Supreme Court roll. Moves should be made to have him struck off for professional misconduct.

  38. Fyodor says:

    It’s true, Faceman, it appears you are incorrigibly dense. It really is extraordinary that ignorami continue to defend the blatant abuse of state power, simply because the target of the abuse is an undesirable. Are you so brain-washed you’re unwilling to stand up for YOUR rights?

    One of the things happening here is the realisation that we need a different set of international laws which take into account the prosecution of captured fighters with terrorist links.

    No, we don’t. Follow the logic closely, as you clearly need assistance with these matters:

    Terrorist = criminal, dealt with under criminal law.

    Prisoner of war = dealt with under Geneva Conventions.

    David Hicks = make up your fucking mind, one way or another, and try the bleeder already, in the appropriate court.

    Secondlly, if the prisoners in GB are accorded the same priveleges as prisoners of war under the Geneva Convention, in effect, the US is giving credibility to terrorist organisations.

    No, conferring the status of POW would deem these organisations enemy powers at war with the USA. The US administration has done nothing of the sort. Therein lies the rub.

    The Geneva Conventions handle the situation perfectly well. They just need to be applied. The US administration has ignored the Geneva Convention and its own laws in holding people illegally in GTMO, a legal black hole.

    The problem is that political agencies are attempting to interprete international law according to civil, peacetime guidelines when they should be adapting law to conform to brand new requirements which aim at detering and judging terrorists engaged in terrorism.

    No, the problem is that the US government is unwilling to apply the laws of war to its own conduct, despite declaring itself to be at war.

    Hicks spent more time that he should incarcerated without trial because of these difficulties, and because the attempts at a solution by the US administration were challenged, and will be challenged again. But until the international community can get together and revise the Geneva Convention to include provisions for the detention and trial of known or suspected international terrorists, there will be troubled times ahead for governments who attempt to take prisoners on foreign soil.

    Bullshit. The US administration broke US law and violated the Geneva Conventions. You do realise you are attempting to justify indefinite detention without trial, don’t you?

    “…there will be troubled times ahead for governments who attempt to take prisoners on foreign soil.”

    I should bloody well hope so – that kind of caper is traditionally called kidnapping.

    On common sense, I believe Australian public has sympathy with Hicks because they believe he’s probably guilty and a nong, but that five years without trial is beyond enough, and that the boy should be sent home asap despite his flaws, which demonstrates the Aussie ‘fair go’ policy in operation. I don’t think the Australian general population has great love affair with the legal system. They prefer justice.

    Shorter Faceman: due process is a good thing, except for people I don’t like terrorists.

  39. BeeF says:

    Using the same arguments that have been put forward on this blog, Hitler did nothing wrong. You could argue that nothing he did would have been considered a crime in his home country. He never faced a criminal court, he was never convicted of anything so I guess the lefties will defend his reputation as they do Hicks.

  40. Katz says:

    so I guess the lefties will defend his reputation as they do Hicks.

    Of course you would BeeF.

    Facelift:

    The process being used may indeed be hugely flawed, but let’s see, we want to release these ‘freedom fighers’, who are very probably willing to destroy the lives of innocent people to sustain their religiously bigotted ideals, when in fact we have them under lock and key safely away form harming anyone but themselves (actually, including themselves!), to satisfy civil law, when they have clearly been apprehended operating according to a quasimilitary lawlessness which has no regard for life. So where do we release them? Back into Afghanistan, Pakistan, where? To join up with their Taliban comrades?

    If you’d been following this discussion with any attention, you would have noticed that most of the “Lefties” who disagree with you are actually not averse to a guilty Hicks being chucked in the slammer for an extended period.

    So who has ensured that Hicks will be free by Xmas 2007?

    1. The proverbially incompetent Bush administration, beginning with Alberto “Tortureman” Gonzales, through Donald “Put a bra and panties on his head” Rumsfeld, Dick “I haven’t had so much fun since I shot a lawyer” Cheney, to the Idiot-in Chief.

    2. John “Scared, Weird, Little Guy” Howard, who is now pretty certain that the first sentence of his obituary will contain the word “loser”.

    Not a lefty to be found amidst that well-packed clown car!

  41. Pavlov's Cat says:

    Using the same arguments that have been put forward on this blog, Hitler did nothing wrong.

    And to think I used to think Godwin’s Law was a joke.

    You lose, BeeF.

  42. Adam Gall says:

    Isn’t there some internet-specific rule where invoking Nazism is an instant disqualification from the argument?

    Having said that, I’m sure we’ve all broken it at some point.

    What you’re obviously trying to elicit, BeeF, is some kind of statement about Hitler, and Nazism, prompting the creation of a whole variety of international procedures and laws in the post-war era. Which you seem to think amounts to an argument about the legitimacy of the Guantanamo situation.

  43. Adam Gall says:

    That’s the one Pavlov’s Cat!

  44. Fyodor says:

    Using the same arguments that have been put forward on this blog, Hitler did nothing wrong. You could argue that nothing he did would have been considered a crime in his home country. He never faced a criminal court, he was never convicted of anything so I guess the lefties will defend his reputation as they do Hicks.

    Which arguments were they, BeeFster? I can’t seem to place the ones referring to Hicks’ genocide charges.

    Also, murder is a crime in Germany. No, it’s true, promise. Look it up if you don’t believe me: Öffentliches Recht Deutschland.

  45. FDB says:

    But Fyodor, he was only following giving orders!

    I think BeeFy’s logic is sound, but his argument is ludicrous. As I pointed out somewhere the other day, the crime of genocide may have been new to Nuremburg and applied retrospectively, but under Gitmo standards every last German soldier should have been up for charges – “material support for genocide” or summat. Or does BeeFy think Hicks was an international terrorist mastermind?

    *sniggers*

  46. observa says:

    Conspicuous indignation again guys? It took over 3 years for the French to do exactly the same thing as the Yanks and yet no ‘Free Willy’ campaign was forthcoming from the usual rentacrowd
    http://www.smh.com.au/news/world/brigitte-verdict-leaves-questions-unanswered/2007/03/16/1173722744322.html

  47. Beefyodor says:

    *sniggers*

    *laughsnorts*

    Personally, I’ve always thought of “genocide” as no more than judicial efficiency wrt the crime of murder – a bit like a “2for” deal. You know, so that rather than having to front up for his 5,616,793rd murder trial, your perp get a bulk discount on his allotment of legal whupass, and everyone else gets an early mark. That kind of win-win-win scenario is the kind of shit that’s worth defending from those illiberal anti-civilisation gwotjob paranoiacs.

  48. Fyodor says:

    Conspicuous indignation again guys? It took over 3 years for the French to do exactly the same thing as the Yanks and yet no ‘Free Willy’ campaign was forthcoming from the usual rentacrowd

    “Exactly the same thing” Obby? Is there a Club Fed at GTMO we don’t know about?

    You’re obtuse, weird dude.

  49. Katz says:

    Well Obby, it’s up to you to defend your own hypothesis.

    “Willi Brigitte suffered a miscarriage of justice.” Discuss.

    (PS, no weird stuff.)

  50. FaceLift says:

    Fydodog, call me dense or whatever you like, it means nothing really, since I don’t claim great brightness, but answer this, if Hicks was caught on foreign by US authorities, should he have been released because he wasn’t caught in the US, tried in Pakistan, or handed over to Afghani authorities (which hadn’t yet been put in place), and, if facing imprisonment or trial, by whom?

    Surely the point is, is he a terrorist or a prisoner of War? You seem to be in some kind of doubt yourself over this. My argument is that the very same dilemma you raise requires a third solution, and that he could not be tried by a national government because of the nature of his capture (if so, which national government?), and that giving terrorists PoW stature elevates their cause.

    Katz, I don’t think Howard could be in any way called either ‘scared’ or a ‘loser’. Therein lies your true prejudice. You hate him so much you’re prepared to blame him for anything. Which is why you’re so upset with Rudd, who is smart enough to take a backseat on this whole thing rather than implying conspiracy theories.

    You’d probably believe someone who suggested Howard advised Hicks to go to Afghanistan in the first place. I think you’d like Howard to actually be Hicks. You talk about this being about process rather than personalties, but you’ve been hugely vocal about the personality of Howard, and how this must be totally his fault. If that’s not about personality, what is? Never mind that Hicks was the one caught in the wrong place, and embarassing his entire nation of birth in the process.

    No one here has come near answering my original critique which called this post conspiratorial for implying that there is some kind of sinister Howard Government intent behind Hicks’ guilty plea.

  51. Enemy Combatant says:

    FaceLifter sez:

    “I’m sure the legislaters in the US also know the law, most better than you, yet they’ve come up with something totally abhorent to you. Just shows the weakness of legislators and law doesnt it?

    I don’t have to know the law to what is just.”

    I’ve always admired fiesty jurisprudential autodidacts like your fine self, sir. So does The Imbecile. That’s why he chose Alberto “Abu” Gonzales to be HIS Attorney General. Some days, FaceLift, you’re dead-set presidential.

  52. Mick Strummer says:

    What is that old saying that if something looks like a duck, walks like a duck and quacks like a duck, then it IS a duck. The whole thing with David Hicks (regardless of his guilt or innocence of any particular crime) reads like a political fix, sounds like a political fix and works like a political fix.
    Nuff said, really.
    Cheers, good Prodeoites……

    BTW. Willy Brigitte was at least charged and tried in front of a recognised fair judicial system. OK, the system might be based on the Code Napoleon, but it is no less legitimate for all that. The military commissions in Gitmo are the political solution to the political problem of having people known to be banged up outside the reach of the American legal system….

  53. Katz says:

    Confessed terrorist David Hicks will be free by next Xmas!

    While Santa flies his pressie-laden sleigh,
    Hicks could be strapping on an explosives belt.

    Who’s to blame?

  54. President FaceLift of the Republic of Dense says:

    So what’s higher, Enemy Combatant, the law, or law makers, or the people who elect the lawmakers to make the law work? And if a new kind of scenario hits the screen, and the existing law just won’t fit, what’s to stop the law-makers redefining a weak law to make it work, or to introduce a law which will work, or maybe even remove a law which no longer works? And what if the law has to cross international boundries, a new thing for our globally shrinking world, which will require international lawmaking at a rapid rate.

    The law serves the people, not the people the law.

  55. Fyodor says:

    Fydodog, call me dense or whatever you like, it means nothing really, since I don’t claim great brightness, but answer this, if Hicks was caught on foreign by US authorities, should he have been released because he wasn’t caught in the US, tried in Pakistan, or handed over to Afghani authorities (which hadn’t yet been put in place), and, if facing imprisonment or trial, by whom?

    OK, since you don’t care, I dub thee Fascistapologist.

    Now, Fascistapologist, caught for what? If perceived to be a combatant, the 3rd Geneva convention applies, and a competent tribunal should assess his status as POW or otherwise, and deal with him appropriately. If not a combatant, prima facie there would be no cause for armed forces to capture him in the first place. What was his crime?

    Surely the point is, is he a terrorist or a prisoner of War? You seem to be in some kind of doubt yourself over this.

    Sure, there’s doubt. That’s why you have competent courts decide. What you don’t do is set up kangaroo courts in legal black holes and detain alleged criminals indefinitely. Why on Earth do you consider this acceptable process, Fascistapologist?

    My argument is that the very same dilemma you raise requires a third solution, and that he could not be tried by a national government because of the nature of his capture (if so, which national government?), and that giving terrorists PoW stature elevates their cause.

    Hang on. What “dilemma” are you referring to, Fascistapologist? You’re the one who seems to think existing laws are incapable of dealing with this situation. If you think he committed a crime, bring him before the appropriate court. If you think he’s a prisoner of war, bring him before a military tribunal and have it decide whether he’s a POW or not. NEITHER HAS TAKEN PLACE, FASCISTAPOLOGIST.

    [blah di blah blah]

    No one here has come near answering my original critique which called this post conspiratorial for implying that there is some kind of sinister Howard Government intent behind Hicks’ guilty plea.

    Probably because the post wasn’t “conspiratorial”, oh densely unbright Fascistapologist, but speculative.

  56. observa says:

    The US system worked a treat didn’t it? Incarceration on remand made Hicks eventually see the error of his ways, admit his guilt and begin the long road to reconciliation with his own countrymen again(society) Mori was appointed and along with our Govt’s help ($300,000 toward his defence team), got the best defence he could have expected under the circumstances. He could have course admitted his guilt a couple of years ago but chose to run with his defence team. Mori quickly realised his client couldn’t win on the damning facts and so obfuscated, delayed and tried on a concerted political campaign to get his client out of facing justice. When Hicks finally had to face the facts, that game was up and the inevitable plea bargain and ‘sorry’ stance, all decked out in the customary suit prevailed. It remains to be seen upon his release whether he is truly repentant and there is no chance of recidivism. Like being convicted of possessing paedophilic material we will be wary of any hint of paedophilic activity in future and he will need to be closely watched. That’s the truth of the matter, that many still mire in conspiracy theories and the like, curiously enough, totally unlike the similar Brigitte case. Hicks can thank his lucky stars he was repentant and pleaded guilty unlike Corby who accused her captors of being crooked liars. Hicks obviously had better legal advice and who supplied that eh?

  57. Fyodor says:

    Hicks obviously had better legal advice and who supplied that eh?

    The legal advice was supplied by a soldier appointed by the armed forces of the country imprisoning him in an extra-territorial legal black hole where he was denied his rights as an Australian citizen, and denied the rights that would have been his due as a foreigner on US soil.

    And that’s jus the beginning of what would be a long and pointless correction of your garbage masquerading as argument.

    You’re clueless, dude.

  58. President FaceLift of the Republic of Dense (Retired) says:

    It is with regret that I resign from my position of President of the Republic of Dense. Despite denials to the contrary I have found it impossible to cope with the emerging leftist LP law community who have shown a blatant disregard for manners, friedship and joy to cast doubts about my ability to rise from the state of intense denseness into cognitive consciousness, and have resorted to name-calling and personal attacks.

    I had hoped that their incredibly well-educated minds may have been able to show me a way through to a higher place, and a gretaer understanding of the facts at their disposal, but their indignation and ridicule only serves to cloud issues further.

    I suspect impeachment will follow on the grounds of having less smarts and savvy than the here-reprisented left legal fraternity, who have themselves, in my opinion, become grossly arrogant and devoid of human compassion, fellowship or sense of humour. I wish any successor a great deal of patience and emotional strength as they tackle the increasingly difficult task of penetrating this extremely inflexible left intelligensia with otherwise fertile ideas, however strange they may seem.

    I will now retire to anonimity and into the arms of those with a greater flexibility.

    Thanks yo to all those who have shown genuine friendship and warrmth, and great desire to see the work of melding nations into one as a key to greater understanding.

    Yours,
    FaceLift
    Ist President of the Republic of Dense

  59. Rob says:

    Interesting to see the debate still running.

    I think FaceLift has got it right. There is confusion about the status of Hicks under (or not under) the Geneva Convention. I think it would have been preferable if he had been given the benefit of the confusion and been deemed a POW until the confusion was sorted or the GC amended, or whatever. The problem with that, as we argued back and forth on the other thread, is that he would be spending many more years in detention, in all probability, and certainly not on Australia’s streets by Christmas.

    Agreed he should not have spent five years in detention without even a skerrick of a charge being brought against him, even if you accept the use of an extra-territorial facility like Gitmo as a holding pen (which is morally dubious at best, whatever the legalities).

    It’s actually not a bad result out of a most imperfect situation, AFAICS.

  60. Katz says:

    Confessed terrorist David Hicks will be free by next Xmas!

    While Santa flies his pressie-laden sleigh,
    Hicks could be strapping on an explosives belt.

    Who’s to blame?

    Rob sez, “Putzes in the Bush Admin.”

    Case closed.

  61. Rob says:

    Too deep for me, Katz 🙂

  62. observa says:

    Ah well Fyodor, let’s just agree that Hicks got the same justice as Brigitte eh? Do you think our Govt should have chipped in $300,000 for the Free Willy campaign, so as not to appear racist or something? Hey, you don’t think we morally concerned could be accused of being racist by only supporting Hicks do you? Omigawd what will the chattering classes overseas think of us? Perish the thought.

  63. Fyodor says:

    There is confusion about the status of Hicks under (or not under) the Geneva Convention.

    There is no confusion; there is a distinct lack of definition. They are not the same thing. The US authorities have had five years to stick the guy before a military tribunal to decide if he’s a POW or not. The fact that they haven’t says volumes about THEIR confusion.

    I think it would have been preferable if he had been given the benefit of the confusion and been deemed a POW until the confusion was sorted or the GC amended, or whatever.

    Well, yes, it would have been preferable if the US had followed the Geneva Conventions and determined if he was a POW or not. Couldawouldashoulda but bloody well didn’t.

    The problem with that, as we argued back and forth on the other thread, is that he would be spending many more years in detention, in all probability, and certainly not on Australia’s streets by Christmas.

    Why is this a problem? If he were a POW, let him rot in Stalag Luft 11B with the other losers. Also, please explain why POWs would still be in detention if the “war” in question is over.

    It’s actually not a bad result out of a most imperfect situation, AFAICS.

    Huh? The “imperfect situation” you refer to was created by the USA. All they had to do was follow the accepted rules of armed conduct, and the bungling idiots couldn’t even to do that.

  64. Fyodor says:

    Ah well Fyodor, let’s just agree that Hicks got the same justice as Brigitte eh? Do you think our Govt should have chipped in $300,000 for the Free Willy campaign, so as not to appear racist or something? Hey, you don’t think we morally concerned could be accused of being racist by only supporting Hicks do you? Omigawd what will the chattering classes overseas think of us? Perish the thought.

    Brigitte got a reasonably fair trial, in a civilian court, in his own country. Hicks was held without trial for five years in an extra-territorial prison by foreigners, allegedly tortured then offered a plea-bargain on a bullshit charge.

    So, no, Obby we don’t agree.

    As for the rest of your incomprehensible tripe, you get a “fail”. See me after class.

  65. Spiros says:

    “He could have course admitted his guilt a couple of years ago”

    Admitted his guilt to what? He was only charged a couple of weeks ago.

    Observa, your Alice-in-Wonderland treatment of the facts is matched only by the Alice-in-Wonderland nature of the whole case. First, Hicks served his sentence. Then, at its conclusion, he was charged and tried.

    “It’s actually not a bad result”

    But, Rob, the argument is not over the result. It’s over the process. Fortunately, the Supreme Court will most likely strike the whole process down in a couple of years. Then we’ll back to justice the old fashioned way: first the charge, then the trial, and then – if the accused is found guilty – the sentence.

  66. Atticus says:

    You all might be interested in David Luban’s post at Balkinization (in my view, one of the best law blogs going, especially on terrorism-related issues).

    He believes the result vindicates Major Mori’s strategy of putting political pressure on Howard. He also thinks the US Government’s strategy of trying to force Hicks’s counsel into ethical compromises was bad form. He’s right.

    The first such attempt, which I believe was discussed on LP in a previous post, was Colonel Davis’s threat to prosecute Mori for being mean to George Bush. Apparently Mori turned this back on Davis by asking for him to be disqualified for attempting to coerce the defence counsel, but the motion wasn’t ruled upon.

    The second attempt was not by the prosecution. Disturbingly, it was the Military Commission itself that put the moral squeeze on the defence:

    Joshua Dratel refused to sign a statement attesting that he would abide by all the rules of the military commissions – including rules that do not yet exist. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained.

    Well, yes. What if the as-yet-to-be-issued rules improperly impeded Dratel’s ability to defend Hicks? If he violated them, he would be open to prosecution for the felony of making a false statement to the government when he signed the statement saying he would abide by the rules. (18 U.S.C. 1001.)

    Farfetched? Not at all: false statements was one charge in the indictment against Lynne Stewart, when she violated prison rules after signing a statement saying she would abide by them. After Stewart’s prosecution, no defense lawyer in his or her right mind would sign the statement Dratel was asked to sign.

    So the judge bounced Dratel from the case.

    This is yet another reason to believe the whole Military Commission is a kangaroo court with no interest in achieving justice.

  67. Rob says:

    The rules of armed conflict are by no means clear in the case of Hicks, though. Yes, the US took a hard line. Yes, it could have been more “lenient” (a big ask so soon after 9/11, but not an unreasonable one). But to me at least it’s by no means clear that Hicks was a protected person under Article 4 of the Convention. If he wasn’t, what was the appropriate way to treat him? Maybe the US got the process wrong, but the eventual outcome doesn’t look too bad to me.

  68. Peter Kemp says:

    Incarceration on remand made Hicks eventually see the error of his ways, admit his guilt and begin the long road to reconciliation with his own countrymen again(society)

    Denseness knows no bounds.

    remand |riˈmand| Law verb [ trans. ] place (a defendant) on bail or in custody, esp. when a trial is adjourned

    So Obby, when was he charged? To be on remand, you have to be fucking charged oh dense one (in a generation of recently discovered black holes centered in the White House but steeped in ignorance and force)

    I guarantee, anyone locked for years up without charge (you know middle ages stuff when the King was not pleased–L’etat c’est moi) will fucking admit to anything

    Admit his guilt

    To a charge invented 4 years after he was taken prisoner?

    With the memory of rectal extreme prejudice, in a hellhole 20 something hours a day where you can’t swing a cat?

    Reconciliation

    No reconciliation required Obby, the majority of this country believe he’s been shafted. Are you expecting Hicks to “reconcile” with a government that treated him like someone who deserved his “sonderlager” (special camp) vermin status?

    Mori quickly realised his client couldn’t win on the damning facts

    You mean the damning facts of guarding a tank at Kandahah???

    he was repentant

    For enjoying a blunt object up his arse and enjoying indefinite detention???

    Hicks obviously had better legal advice and who supplied that eh?

    You must be referring to Ruddock and his legal advice, “we have abandoned you to your fate, and we revel in it, scumbag.”

  69. Mark says:

    Maybe the US got the process wrong, but the eventual outcome doesn’t look too bad to me.

    Shorter Rob: the ends justify the means?

  70. observa says:

    Be real Fyodor. There was natural confusion/imperfection about how to deal with a new problem like the Hickses, Habibs and Brigittes. They have each been handled fairly well on their merits, bearing in mind the need to protect the community and the large numbers of suspects that were assessed and released from custody as well. Leftists demand perfection when the US is involved, which is bloody precious given their penchant for complete govt debacles like communist states. Get off yer high horse here.

  71. Atticus says:

    Spiros: “But, Rob, the argument is not over the result. It’s over the process.

    Thankyou, Spiros, for reminding me of last week’s Clarke & Dawe sketch:

    BRYAN DAWE: How does it all work? This is not coming under US law, is it, this trial?

    JOHN CLARKE [AS ALEXANDER DOWNER]: This is a constituted, slightly different jurisdiction. It’s a US military commission, that’s being conducted in a jail in Cuba.

    BRYAN DAWE: And how is it different?

    JOHN CLARKE: Whereas normally, Bryan, you would be charged with something and then you would be tried and if you were found guilty you would then be sentenced.

    BRYAN DAWE: How’s this one different, then?

    JOHN CLARKE: In this case, slightly different jurisdiction, Bryan, you serve your sentence, and then, after some years of that, you’re charged.

    BRYAN DAWE: Mmm.

    JOHN CLARKE: And then, perhaps, you’re tried.

    BRYAN DAWE: And what are you charged with?

    JOHN CLARKE: Oh, anything. In this case, perhaps, providing material support for a terrorist organisation.

    BRYAN DAWE: Yeah. And where do you serve your sentence?

    JOHN CLARKE: In a room about sort of this by this. It’s very attractive, affording excellent vistas of the toilet, for example.

    BRYAN DAWE: When are you tried?

    JOHN CLARKE: You’re tried after you’re charged.

    BRYAN DAWE: After you’re served your sentence?

    JOHN CLARKE: Having served the majority, for some years, maybe five or six years.

    BRYAN DAWE: What do you do when you’re charged?

    JOHN CLARKE: Oh, you plead guilty.

  72. Enemy Combatant says:

    “It is with regret that I resign from my position of President of the Republic of Dense.”

    Don’t think I’ll be able to make your farewell piss-up, FaceLift.
    I’m watching television that night.

  73. Peter Kemp says:

    The rules of armed conflict are by no means clear in the case of Hicks

    Yes they are Rob. The rules are Common Article 3 and the rights of lawful combatants.

  74. Robert says:

    Leftists demand perfection

    Obs is right: five years held without charge in solitary confinement is just a minor inconvenience.

  75. Rob says:

    “Then we’ll back to justice the old fashioned way: first the charge, then the trial, and then – if the accused is found guilty – the sentence.”

    That’s fine in peace time. War is different (I think FaceLift raised this point earlier). War involves, well, killing people. If you applied civil law to a situation of war you’d have no battles, no ambushes, no airstrikes — instead you’d send in the police to arrest people, bring them to trial and so on. So in war time you have different rules.

    The problem with Hicks is that his case fell very uncomfortably into a situation where neither the precedents of civil or war-time law were much of a help. He wasn’t a civilian; but he wasn’t a proper combatant, either. Sure, the US made it up as it went along, but so would any other power, I suspect, given the uncertainty about the applicability of the Geneva Convention in his particular case.

  76. Katz says:

    There was natural confusion/imperfection about how to deal with a new problem like the Hickses, Habibs and Brigittes. They have each been handled fairly well on their merits

    Oh yes, Hicks will be out by Xmas.

    Bush is as popular at home and abroad as Ebola.

    And Ratty still has the Hicks tarbaby stuck on his political hide.

    Everything is going according to plan.

    I’m happy.

  77. Rob says:

    “Shorter Rob: the ends justify the means?”

    The process was imperfect, as all processes are. Take a straw poll and see who thinks the jury system is perfect.

    I think the US has basically been doing the best it can with a very legally diffuse ande unprecedented set of circumstances — other than using the extra-territorial base at Gitmo, which I think was unconscionable.

    I still think, as I said on the other thread, that there is at least a chance that it would have been lawful to execute Hicks on the battlefield, if he was not protected by Article 4, but I’ll leave that to better and wiser minds.

  78. Peter Kemp says:

    where neither the precedents of civil or war-time law were much of a help. He wasn’t a civilian; but he wasn’t a proper combatant, either.

    You mean no help to Bush in trashing the very same war-time laws of the Geneva Conventions.

    Where’s the rationale for Hicks not being a lawful combatant? Why was there never a military tribunal to establish his status?

  79. Rob says:

    That’s a fair point, Peter — I agree there should have been a tribunal established to determine the status of people like Hicks. Perhaps that was the US’ real mistake in all this.

  80. Mark says:

    The process was imperfect, as all processes are. Take a straw poll and see who thinks the jury system is perfect.

    That’s spurious, Rob. Some processes are far less imperfect than others.

  81. Fyodor says:

    Be real Fyodor. There was natural confusion/imperfection about how to deal with a new problem like the Hickses, Habibs and Brigittes.

    Hilarious. An obtusely ignorant partisan presuming to lecture me on reality.

    The law is real, Obby. The perversion of justice taking place on GTMO is against the law. You seem to be convinced that the law can be bent to accommodate the fanciful whims of your clownish partisans. Guess again.

    There was no confusion/imperfection about how they SHOULD have been treated. There was nothing new about the situations of Hicks, Habib and Brigitte, just as there is nothing new about terrorism, milita groups or non-state militants. It’s all been done before, and consequently we have laws for dealing with these situations.

    Asserting otherwise simply proves you’ve swallowed the statist propaganda fed to you by those who would twist YOUR rights to suit their purposes. Shame on you.

    They have each been handled fairly well on their merits, bearing in mind the need to protect the community and the large numbers of suspects that were assessed and released from custody as well. Leftists demand perfection when the US is involved, which is bloody precious given their penchant for complete govt debacles like communist states. Get off yer high horse here.

    Perfection is not required; the rule of law is. Do you remember the rule of law, Obby? It’s one of those nice things we in the West take for granted, and which we’re supposedly defending from these accursed terrorists.

  82. Robert says:

    Wow, now Rob has jumped on with Obs, suggesting that critics of Hicks’ treatment are unreasonable perfectionists.

    If you can’t see that the imperfections of the jury system are light years away from the imperfections of Guantanamo Bay, then there’s hardly any point continuing the discussion.

    The point here is that most people wish Hicks had the option of even an imperfect ordinary jury trial.

  83. Rob says:

    “There was no confusion/imperfection about how they SHOULD have been treated. There was nothing new about the situations of Hicks, Habib and Brigitte, just as there is nothing new about terrorism, milita groups or non-state militants. It’s all been done before, and consequently we have laws for dealing with these situations.”

    I don’t think that’s right, Fyodor. It’s true that militia and resistance groups are recognised and protected by the Convention. We went through this on the other thread. The question is whether Hicks and those like him fell within the definitions and criteria of the Convention. That’s where the prolem lay.

  84. Fyodor says:

    The question is whether Hicks and those like him fell within the definitions and criteria of the Convention. That’s where the prolem lay.

    Ah, so we need someone to decide on their status under the 3rd GC, right?

    OK, Rob, let’s play El Presidente for 10 points:

    a) Do you follow the usual process and have a military tribunal decide the detainee’s status forthwith?

    OR

    b) Do you remove the detainee to an extra-territorial prison where the detainee can be deprived of all his normal rights, including habeas corpus, and sit on the guy, with a little light torture, for a couple of years until you decide what you want to do with him?

    You can only pick one, so think carefully about what YOU think is the right answer.

    [HINT: It’s not a trick question.]

    Follow-up question for extra points, Rob:

    When a judicial proceeding seems likely to produce an adverse outcome, do you:

    a) accept the outcome – that’s the law/the ref’s decision is final?

    OR

    b) break the law – the law is an ass?

    Go on, surprise me.

  85. Peter Kemp says:

    The question is whether Hicks and those like him fell within the definitions and criteria of the Convention.

    Oh I see, becos its “Hicks and those like him” the “definitions and criteria” of International law can be discarded/modified and become the “prolem”?

    Terrorism= criminal activity in domestic jurisdictions.

    Customary international law= Dealing with Piracy, Genocide, Slavery: lawfully able to be handled also by domestic jurisdictions.

    LOAC= Geneva conventions of which Common article 3 has become customary international law: can also be handled under statutory domestic or international common law applied domestically. In Oz the Criminal Code Act ex Treaty of Rome–denying POWs a fair trial is a war crime BTW.

    Bushco Law: Ad hoc permutations and combinations of the above and with the distinction of being purveyed by Fox News (and other assorted reality deniers) as “fair and balanced.”

    Lawful Belligerents do not exist cos we say so

    (And whenever we say so.)

  86. Leinad says:

    *holds breath*

  87. Rob says:

    “a) Do you follow the usual [read: prescribed] process and have a military tribunal decide the detainee’s status forthwith?

    OR

    b) Do you remove the detainee to an extra-territorial prison…”

    As I’ve said above: yes, and no.

    Did not understand the last two chjoices, sorry.

  88. Rob says:

    “Oh I see, becos its “Hicks and those like himâ€? the “definitions and criteriaâ€? of International law can be discarded/modified and become the “prolemâ€??”

    You were part of that debate, Peter. Point to me where it is clear that Hicks was a protected person under the GC.

  89. Peter Kemp says:

    Point to me where it is clear that Hicks was a protected person under the GC.

    Point to me where Common Article 3 (on the treatment of prisoners detained in war) says he should not be protected?

  90. Fyodor says:

    Much, much shorter Rob: the USA was wrong, but I just can’t bear to admit it so I’ll just wring my hands over the sheer confusing complexity of it all. You know: “good intentions”, “thought that counts”, “best of a bad lot”, yadda all that apologist shite yadda.

  91. Rob says:

    Peter, explain to me how Art 3.1. applies to David Hicks:

    “Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
    provisions:
    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.”


    No active part
    appears to be the criterion here. Was that true of Hicks?

  92. Rob says:

    And for your definition of prisoner of war, of course, you are bound by the provisions of Art 4, as previously argued.

  93. via collins says:

    well heck, it IS damned confusing.

    one can only imagine there are some people, somewhere in the world at large, who were actually interested in a transparent legal process that might shed some light on:

    – what David Hicks actually did
    – what actually happens at Camp X-ray
    – what is the next step in the legal tribunal process
    – how the COW are actually making life safer for us all under threat of terrorism

    what have they got?

    – an expedient stitch-up with a short sentence described by one ropable American writer as “a drink-driving sentence”. no information, no inspiration for anyone to feel secure about anything but the fact that the covering of administrative arse in the COW is the prime directive in what remains of the GWOT.

    and Rob and Obby think it’s a pretty good turn-out.

    wow.

  94. Peter Kemp says:

    And bonus points can be earned by answering the following question in our quiz which seeks out “the weakest link” to reality.

    Even if proven in a properly constituted court conforming to all the normal rules of evidence, cross examination et al, IS “providing material aid to ‘terrorists’ a war crime”???

    Peter, explain to me how Art 3.1. applies to David Hicks:…(1) Persons taking no active part in the hostilities

    That part is not applicable where he was guarding a tank and armed. You seem to be arguing that all camp guards, cooks and lorry drivers with access to weapons were not “taking an active part” and therefore must have been illegal combatants.

  95. Rob says:

    “LOAC= Geneva conventions of which Common article 3 has become customary international law:”

    Peter, you appeared to be relying on Art 3 — I was merely following you there. I’ve argued all along that Art 4 is the one that counts.

  96. Rob says:

    “IS “providing material aid to ‘terrorists’ a war crimeâ€?

    Who is arguing that it is? Hicks admitted to and was convicted of providing material support to terrorism (or a terrorist organisation), not a war crime.

  97. observa says:

    “The point here is that most people wish Hicks had the option of even an imperfect ordinary jury trial.”

    Presumably then there should be more wailing and gnashing of teeth down at the Indonesian embassy to free Corby then. After all she’s claiming innocence while Hicks has owned up. Rule of Law my backside. This is just an ongoing political echo chamber of the Mori defence campaign. The only difference is Mori knew the game was up when his client pleaded guilty. Go boohoo for Corby. She reckons she needs justice rather than your Rule of Law she got from the Indo judges. Compared with Hicks and Brigitte, she’s got a point but where’s all the compassionatte when you need them eh?

  98. Peter Kemp says:

    A good summary here

    http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5ZMEEM

    * Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.

    And here:
    http://www.icrc.org/web/eng/siteeng0.nsf/html/5kzjav?opendocument
    Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols. However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian law. At the end of 2003, almost all the world’s States – 191, to be precise – were party to the Geneva Conventions. The fact that the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date.

  99. Rob says:

    Bit of a snow job on Four Corners, I thought.

  100. Peter Kemp says:

    I’ve argued all along that Art 4 is the one that counts.

    Elaborate please, as to how Article 4 may (apparently) override common article 3?

    Let me guess, not “having a fixed distinctive sign recognizable at a distance;…”

  101. Peter Kemp says:

    but where’s all the compassionatte when you need them eh?

    The compassionatte are drinking latte with ratte Obby.

  102. Rob says:

    Yes; and:

    ” (d) that of conducting their operations in accordance with the laws and customs of war.”

    I think Hicks was entitled to the benefit of this provision:

    “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

    …. even if it could be established he failed one or more of the tests (and on my reading you have to satisfy all, not just one or two, of 4 (2) (a)-(d)).

  103. Rob says:

    And Art 4 does override 3; it is clear that the application of Art 3 is subject to Art 4, that is, if you fail the criteria set out in 4, 3 does not apply.

  104. Peter Kemp says:

    How does Art 4 override?

    Read it again, “persons belonging to one of the following categories, who have fallen into the power of the enemy:..”

    “Or or or” not “and and and”

    1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

    OR

    6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    Never in the field of human conflict has so much straw been clutched by so few for the dubious benefit of so many goats.

  105. observa says:

    Well as far as Muhammad Dawood and justice is concerned, all’s well that ends well (loved the suit and haircut Hicks baby) One thing’s for sure we won’t have to worry about the Rule of Law for the next one though. We’ll have that all stitched up on the statute books, don’t you worry. Won’t need the Yanks to cover our backsides on that little oversight again, I’ll wager.

  106. Rob says:

    Seems Gitmo ain’t so bad after all.

    Peter, here’s the section:

    “(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
    (a) that of being commanded by a person responsible for his subordinates;
    (b) that of having a fixed distinctive sign recognizable at a distance;
    (c) that of carrying arms openly;
    (d) that of conducting their operations in accordance with the laws and customs of war.

  107. Peter Kemp says:

    And if Common Article 3 is overridden by 4, explain how it simultaneously overrides Common Article 3 in the other conventions Rob?

    Why do you think it’s called common article 3— FFS

    Shorter Common Article Rob: The Conventions are putty in my hand, to fill the yawning crevices of my argument.

  108. Rob says:

    Hmm, you may have a sort of point point there, Peter, but not the one you were trying to make. Art 3 lays down conditions for humane treatment of non-combatants — the key being the aforesaid “Persons taking no active part in the hostilities” — and Art 4 lays down the criteria for POW-ship.

    Taken together, the two provisions do not demonstrate any basis for not regarding Hicks as other than an unlawful combatant. Hicks had not laid down his arms, nor been rendered hors de combat under Art 3 (assuming he could be said to have been a member of the armed forces, and not a member of a militia, which is doubtful). And there must be grave doubt as to whether he fulfilled the conditions of 4 (2).

  109. Peter Kemp says:

    Won’t need the Yanks to cover our backsides on that little oversight again, I’ll wager.

    Reality still eludes you Obby, it was Yanks uncovering backsides and reaming people’s arses in the first place in an attempt to create Imperial Scatalogical Jurisprudence where CYAss, (legally speaking), was not allowed. That was and is the problem, in a nutshell.

    (I partly blame semi-literate Mafia types at Gitmo confusing interrogator’s accusations of “Innuendo” with compulsorily applied suppositories.)

  110. Nabakov says:

    This whole Hicksy thing strikes me as a terrible miscarriage of justice.

    There he is locked up in Gitmo where the US administration assures us they only keep “the worst of the worst” and yet he only eventually gets a nine month sentence. Drunk drivers and corporate fiddlers get sent down for much longer.

    And what will happen when he’s released and falls into the hands of some evil enabler like Harry M. Miller? No way that dude’s not gonna find a way around the gag order.

    As for his case and other such ones being a brand new state of affairs that falls beyond current legal precedent, there are no shortage of legislative models that cover transnational crimes of violence, sedition, aiding and abetting terrorism and felonies in general. Start with the UK Terrorism Act 2000 and work back to the Piracy Act 1698.

    (And let the the hairsplitting over late 17th century and early 18th century case law begin.)

  111. Peter Kemp says:

    Rob sez

    Art 3 lays down conditions for humane treatment of non-combatants — the key being the aforesaid “Persons taking no active part in the hostilitiesâ€?

    NON-COMBATANTS WHO WERE COMBATANTS BUT WHO WERE CAPTURED & DETAINED!

    A3(1) …including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention

    You are being deliberately obtuse I fear. It’s simple: if the enemy is armed and shooting at you you are lawfully entitled to kill. Once they have surrendered, been detained, captured sick wounded, whatever THEY ARE PROTECTED BY C.ARTICLE 3.

    Your interpretation is catch 22, even our Feathered Friend would fall for this one:
    1) When they are armed kill em.
    2) When they are captured we declare them to non-combatants.
    3) Next step apply retrospectivity.
    4) Holy shit/fuck, those non-combatants had guns.
    5) They must be non-privileged belligerents.
    6) Kill em.

  112. Rob says:

    Yes, but as I said, the application of the term ‘detention’ appears to require that Hicks was a member of the armed forces of Afghanistan in order to attract the protection of Art 3. (Viz: ‘including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause…’) It seems dubious that he could be described as such.

    Also, I think Art 3, by virtue of the word ‘including’, clearly embraces more than just combatants who have surrendered, etc. I think it encompasses nurses, doctors, and so on as well as the general civil population.

    Still, I know that it’s dangerous for a non-lawyer to take the words of legislation or covenants on their face, so I’m likely quite wrong. Where’s sl? There’s a lawyer I can trust.

  113. will says:

    has anyone noticed a British man was just released from Gitmo?

    British officials have long refused to represent resident foreigners held at Guantanamo, but took up Mr Rawi’s case after it was disclosed he had previously co-operated with MI5.

    Mr Rawi, an Iraqi citizen with UK residency, was reportedly sent to England in 1985 after his father was arrested by Saddam Hussein’s secret police.

    No charges, no show trial, no apology, no media gag, just a quiet arrangement.

    Funny what some commenters on this thread take for justice.

  114. Peter Kemp says:

    Hicks had not laid down his arms

    Right.

    Northern Alliance 1: “You’re detained Hicksy, but we’re reeely gonna be fair. Bring your AK47 with you and as many magazines as you like.”

    Northern Alliance 2: “You’re detained Hicksy, but we’re reeely not gonna be fair. Because you didn’t lay down your weapon in the approved orderly manner of western wingnuts, (you threw it away in a fit of pique), so Common Article 3 will not apply to you.”

    Northern Alliance 3: “You’re detained Hicksy, but we’re reeely not gonna be fair. Now we gonna establish whether you were a member of the armed forces or the militia. Were you a member of the Judean Peoples Front, The Peoples Front of Judea, the Liberation Front of Judea or the Fundamentalist Freedom Front of South-East Judea?

  115. Rob says:

    Good stand up comedy routine, Peter. There’s future there.

  116. Peter Kemp says:

    Rob what aspect of armed forces or militia or volunteer corps don’t you understand?

    Hicks was with the Taliban. He had a gun. The Taliban were the government of Afghanistan. Hicks was a lawful belligerent of that war.

    4A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

    OR 2 OR 3 OR 4 OR 5 ——get it?

    Not “Oh 2 is good for me. I can forget about the others.”

  117. Sir Henry Casingbroke says:

    Hicks had not laid down his arms…

    How would you know, Rob?

    None of the so-called facts in this case are open to cross-examination, nor indeed any test of probity whatsoever. The whole scenario about the circumstances of Hick’s alleged combat may have been cooked up and given to Hicks to sign, or else. On the other hand it could be the truth. But it is one of the known unknowns. The prosecution brought to the court tainted evidence based on Hicks’s self-incrimination, one that most fair-minded and reasonable observers (that excludes you Rob) would regard as coerced.

    I am sure that faced with a hot lead enema up your arse or a loaded Remington 870 Combat model shotty pointed a few inches from your face, you also would admit to anything, including torturing fluffy kittens.

    I know what you’re thinking, Rob. “Did he fire shots at Americans? And if he did, why didn’t they just bring that evidence to a properly convened court, even an Australian one, under Crimes- Foreign Incursions and Recruitment Act, 1978?”

    Well, to tell you the truth, in all this excitement I kind of lost track myself. But being as this is a Remington 870 Combat shotgun, the most lethal close quarters weapon in the world, and would blow Hicks’s head clean off, you’ve got to ask yourself a question: Did Hicks feel lucky at the time he signed that statement that later formed the basis of the charges? Well, did he, punk?

    The show is not over yet as regards the political fix. “Dan” Mori was one of the dealmakers, he certainly knows a lot, and may talk sometime before the election. He does not like Mr Howard.

    Nota Bene: Mori is not under a gag order and is protected by the First Amendment to the US Constitution.

  118. Rob says:

    The issue is whether he falls within 4A (1) or (2). From his (reconstructed) performance on Four Corners tonight, that seems moot.

    And a new line for your comedy routine:

    ‘Northern Alliance 4: After all, how difficult is it to lay down a tank? Haw haw haw.

  119. Atticus says:

    Sheesh.

    Would you two just email each other? This is incredibly tedious. It’s even more tedious when it happens on every single Hicks thread, and you never have anything new to say.

  120. Rob says:

    Sorry, Atticus, but it happens on lots of blogs. There is a serious sub-text.

    The question of Hicks being a member of the armed forces of Afghanistan and thus protected by Art 3 is of course complicated by the fact that only three states recognised the Taleban as the legitimate government of Afghanistan — none of them among the combatants of late 2001. So if it was an illegitimate ‘government’, what were its armed forces? Bandits?

  121. Peter Kemp says:

    Not complicated by 3 state recognition at all. Look at the language: “protecting power” “detaining power” “enemy power” “parties to the conflict”.

    Point me to the part that says “illegitimate governments or illegitimate belligerents as defined from time to time by any Imperial Empire”

    But glory be, an “or” appeared. Well done.

    Northern Alliance 4: The last was a trick question Hicksy, membership of any of those organisations qualifies you for the bum rap.

  122. Spiros says:

    “Nota Bene: Mori is not under a gag order and is protected by the First Amendment to the US Constitution.”

    Mori is still a serving member of the United States Marine Corp. As long as that is the case, he won’t be saying anything.

    Of course, Mori may well conclude that his marine career is now extremely terminally prejudiced. retire, and tell all.

  123. Sir Henry Casingbroke says:

    Spiros, signomi, but the First Amendment is available to all.

  124. Spiros says:

    Sir Hank, just because Mori has the right to speak about Hicks, doesn’t mean he will. For all we know, Mori might personally disapprove greatly of Hicks – Mori as a marine, after all – and might think that since Hicks will be a free-ish man in Adelaide by the end of the year, the job is over, and there’s nothing more to be said.

    Mori is Hicks’ advocate, and he’s done that job very well. But Mori might well just move onto the next job, as lawyers do when cases are over.

  125. Sir Henry Casingbroke says:

    There is nothing in what you say Spiros that I can disagree with. Indeed, Mori was complicit in the deal being brokered. But in trying to guess Mori’s mind let’s look at the known knowns.

    Good old Major Mori may look a dork with his jarhead haircut but he is no wood duck and doesn’t take kindly to being dissed. He is a very savvy operator as Moe Davis (and the people behind him) found out. Moe made an attempt to indimidate Mori – it was a phony, pissweak standover tactic. Mori took his revenge cold and in the final round left Moe looking stupid and out of the loop. Moe is slow and was roadkill for Mori.

    The point I am making, Spiros, is that Mori is a political animal as well as a warrior. He was genuinely dismayed at Howard and the rest of the Australian government over this whole saga.

    Let’s look at Mori’s work here. He did far, far more than simply work required of a lawyer. He played politics with Howard and defeated him in round one on Howard’s own turf. It was amazing to watch. Mori used the media masterfully and was instrumental in turning public opinion in this debacle for Howard by speaking at forums and public meetings and making himself available at all times. Being what he is, a uniformed soldier in the US armed forces, his views and actions carried tremendous weight.

    Now, Spiros, round two is coming up. Isn’t it exciting? Don’t you feel the rush of adrenalin?

    Howard should be afraid, be very afraid, because Mori could inflict a fatal political wound, should he choose to. And I do not think Mori is all that easily spooked, either by his superiors or by Howard government’s posturing.

  126. Bruce says:

    Mori just didn’t do a job he did a great job with passion and incredible energy, is this his only 5minutes of fame? the world will miss him if it is.
    Somewhere there must be a letter from the USAyrians to Ratty stating Hicks claims and their rebuttal i.e. that the USAyrian investigators found no mistreatment, maybe they only investigated the last week?
    If there is no official letter that is even more interesting.
    Maybe Ratty made it up?
    Mori could have the paper work on this and stuff we haven’t thought of.
    Marines have a reputation for jumping on live grenades.
    Lets hope.

  127. Rob says:

    USAyrians? Do you mean USAryans? Interesting concept.

  128. Bridie says:

    It is spooky, but unsurprising I suppose that people like Spiros and Pavlov’s Cat and others can’t see beyond the individual, the personal, the man known as David Hicks, to the bigger picture, the important indisputable truths, to the very basic fundamental principles of human rights, due process, just law that have been and still are at issue here.

    Major Mori I agree has been key in swaying public opinion in Australia. Nothing to do with so-called Australian sense of fair go, decency, as some have hopefully suggested. Was there ever such a thing, anyway? It is a comforting, completely illusionary myth. People listened and turned because these words, these truths were spoken by a US Pentagon lawyer, someone deemed worth listening to. Sad, but true. But good too, because a US Pentagon lawyer who has made a fool of our government is someone to beware of. This story ain’t over yet.

    That Mori went extra-legal, targeted Howard, was not strategic wizardry, as some have suggested, but tried and true political manoeuvring, pressure and tactics that delivered a highly predictable, desired outcome – Hick’s release.

  129. Katz says:

    No.

    The folks with the whip hand in the Hicks case were the Convening Authority, represented here by Susan Crawford. The Convening Authority wrote the script. John Howard had a walk-on cameo role. Michael Mori played second lead admirably. Moe Davis and the prosecution team were mere spear carriers.

    The Convening Authority — the cutting edge of the Bush Administration probably under the direction of Defense Sec. Gates — want the Gitmo albatross torn from its neck.

    Hicks’s treatment has demonstrated to all inmates in Gitmo, except for the worst of the worst of the worst, that if you play nice and own up you’ll get a slap on the wrist and you’ll be sent home.

    Gitmo will become obsolete and with a sigh of relief Gates will shut it down.

    The US will get out of the business of military commissions, while reserving the prerogative of re-establishing at some time in the future.

    Watch the coming rapid depopulation of Gitmo.

  130. Kim says:

    It is spooky, but unsurprising I suppose that people like Spiros and Pavlov’s Cat and others can’t see beyond the individual, the personal, the man known as David Hicks, to the bigger picture, the important indisputable truths, to the very basic fundamental principles of human rights, due process, just law that have been and still are at issue here.

    Wherever do you get that idea from? I’m sure that’s not the case.

  131. Sir Henry Casingbroke says:

    Kind of plausible Katz but it makes one fatally flawed assumption – that the US Administration knows what it is doing, or that it speaks with one voice. Iraq has shown that this simply isn’t the case. From a distance it looks like a solid shape, but when you get close, it’s seething, writhing nest of snakes and smart operators like Mori slipped right in there through the gap.

    Moe Davis is a career bail bondsman and small town sherriff, Susan J Crawford is a distinguished jurist and an appeals court judge as well as an authority on armed forces law.

    Mori talked to her lawyer to lawyer. She knows that the case against Hicks is paper-thin and eventually would have been appealed out of contention. Hence the nine month sentence.

    But this is no sentence at all. It’s a political fix to accomodate Howard via Gates via Dick Cheney.

    For it to have been a sentence it would have had to formally include the time already served to make a modicum of sense.

    But because there is doubt about the legality of Hicks’s Gitmo time, the US must keep up the fiction that Hicks was there “on ice”, or in some form of quasi POW detention to keep from taking up arms against the US again.

    If Mori talks, or Crawford talks – say, to a Democrat Congressional hearing under oath and under a subpoena – then Howard’s arse is grass.

    If the lurking Howard apologists in the shrubbery have any doubt as to what I am saying is a real possibility, ask yourselves this question: do Howard and co. have anything to hide with regard to the Hicks fix? And if the answer is yes, it will come out, sooner or later.

  132. Katz says:

    Kind of plausible Katz but it makes one fatally flawed assumption – that the US Administration knows what it is doing, or that it speaks with one voice.

    No it doesn’t.

    Gates has replaced Rumsfeld. Gates sees it as his task to eradicate some of the most egregious of Donald “Put a Bra and Panties on his Head” Rumsfeld.

    Gates is on record as wanting Gitmo closed down.

    Gates is Crawford’s boss.

    Crawford is handing out showbags to any “Unlawful Combatant” who’ll cop a plea and pay the $2.00 fine.

    Bush is out of the loop on this one.

    I grant you that my case won’t be made until other nationals start leaving Gitmo. Then it’ll be proven that Howard had no special deal.

    If that fails to happen I’ll admit my mistake.

  133. observa says:

    So they’ve finally come round to appreciate it was the US military justice system that appointed Mori and look what a wonderful job he did for his client and how well does that reflect on the US system overall? My oh my, wonders will never cease!

  134. Sir Henry Casingbroke says:

    I think that US military justice is as good as any, better than most, but it’s always the exceptional individual against the system.

    Systems of law are eminently corruptible. All you need do is to stack the bench with people who will do your bidding.

    Observa, neva eva make assumptions based on your own ejaculatory impulse for cheap triumphalism lest you get your oscar caught in a logic trap.

    Observa, remember Lt. Barney Greenwald?

  135. Sir Henry,
    Interesting you are channeling Rumsfeld in your use of the “known knowns” and “known unknowns”. I trust you were not one of those joining the (IMHO) unwarranted bagging of him over those phrases. He may have been guilty of some grave sins, but mangling the English language in that instance was not one of them.
    .

    Katz,
    Again – I agree with your analysis. It does appear as if Gates does want it closed down. Good to see that someone in the administration has finally realized the damage it is doing.
    Hmm – two agreements with you in one thread. I think the last time was the thread of doom, was it not?

  136. wbb says:

    Katz’s view is borne out by the Evil One’s appearance on Lateline tonight. Ruddock seemed completely non-plussed by many of the arrangements entered into concerning Hicks. In fact he was so surly that he even took swipes at the tribunal’s sentence. (Ruddock is hard to read sometimes, but.)

  137. Sir Henry Casingbroke says:

    I am speculatin’ but here’s my take on this: the Hicks fix was done by Howard mano a mano with Dick Cheney who flickpassed it onto Gates. A shortcircuit job. Amnesty Phil was sidelined and is now miffed. Phil makes a calculated assumption that there is life after Ratty, who is nearing his use-by-date and is maneuvering himself into a less compromising position. Let’s now watch $weetie, Sir Mal and see how they jump. Amnesty Phil clearly invited Hicks to talk to the media and break the undertaking to the tribunal by saying that talking to the media is not against any Australian law and derisively pointed out that Australia would be unlikely to extradite Hicks back to the US should the latter break any undertakings made in Gitmo. Hmmm, very shysterish. What about the nine months, then? And/or suing the US government? This is going to be the mother of all lawyers’ picnics. The mind boggles.

    Reynolds: I LOVE those phrases, especially when sung as opera:
    LINK

  138. observa says:

    Sir Henry,
    Mori was no unusual precedent, but that was Hicks and his cohorts’ problem all along. We’ve dealt with unusual precedents before- Nuremberg. Ah those were the days eh?

  139. Sir Henry Casingbroke says:

    Obby, my old darling, I agree with you!! Mori is not a “precedent” i.e. a maverick lawyer working within the system. He is not unusual nor the first. That is why I referred to Barney Greenwald. I am not going to tell you who Lt. Barney Greenwald was, if the name doesn’t ring a (ship’s) bell. Use the Google or wait for the brilliant informed LP bloggers to jump in.

    PS 1 I do not understand why this would have been Hicks’s problem, really. Quite the reverse, I would have thought.
    PS 2 Cohort, singular; or supporters, plural.
    PS 3 Your attempt to make the case that somehow Mori’s representation of Hicks threw a spanner into the propagandistic works of the traitorous, homemade sandal wearing, baby-boomer, basket-weaving, latte-sipping, chattering-class ABC-luvvie supporters of Taliban terrorist Mahmoud Mohammed Dawood Hicks does not hold any water. Even your very own organ grinder, “Amnesty” Phil Ruddock, has never tried that line. So, cease and desist.

  140. JT says:

    Many thanks to Malcolm Fraser for proving his left credentials, yet again. Here are his views on the issues — as published in today’s Crikey email.

    __
    5. Hicks, medievalism and the rule of law
    Former Prime Minister, Malcolm Fraser, writes:

    Some people believe the Hicks saga is over. Some people believe the sentence was too light because he was a terrorist anyway. Some believe he was treated harshly and without justice. Others believe that what has happened over the last week was cooked up between governments to minimise the political damage to the Australian Government through this election year.

    If the fraudulent Military Commission process in the Hicks case had not been concluded, the Australian Government would have lost even more than it has lost. If Hicks had been given an extremely heavy sentence, the Government would have lost more again. If Hicks were released before the election and were able to speak personally about events in Guantanamo Bay, the fallout for the Government would be considerable. So, it is the best result for the Government, and I do not believe by accident.

    The Military Commission is controlled, in the first instance by the US military, in reality by the United States Government. Despite Australia’s silence and compliance in matters of fundamental policy, whether in relation to Iraq or the ‘War on Terror’, or the conduct of affairs at Guantanamo Bay and the Military Commission trials themselves, up to this point the US Government had done nothing at all to repay Australia for its unseemly acquiescence.

    Both governments will say: Hicks has had his day in court, he pleaded guilty, he has been justly treated. What we really need to concentrate on and to understand is that Hicks did not have a day in a court. He had a day in a fraudulent tribunal, controlled by a special law, which the Americans would never dare to apply their own people. A US citizen would be free to take a ruling from such a tribunal to the US Supreme Court, which would find that the Military Commission does not provide justice.

    What we have seen is the end result of unremitting and ‘medieval’ pressure on Hicks. A pressure increased by threats of a long and continuing sentence in jail, by what Hicks would have believed to be a guaranteed guilty verdict, regardless of whether he were guilty or innocent, because that is what the system provided for. If he were to plead guilty, he was offered a way out. That also means that the particular evidence against Hicks did not have to be revealed. Remember that the more serious charges against him were struck down for lack of evidence. After everything that had gone on, Justice Susan Crawford could not have struck down all charges. She let the least important ones stand. The guilty plea meant the evidence or its sources did not have to be revealed, or the means by which it was collected made clear.

    Hicks’ guilt or innocence is an open question. A plea of guilty was extracted from him by the pressure exerted upon him — and by the fear of that pressures continuing without an end in sight. What man would have pleaded otherwise?

    I do not know if he is guilty or innocent, he was certainly wild and foolish, but that is not the point. The point is justice, the Rule of Law and due process. If our Government is prepared to allow any one of its citizens to be sacrificed on the altar of expediency, if our Government demonstrates that it is not really concerned for justice, for a fair process, for one person, then none of us knows whether circumstances might arise in which the same lack of care, lack of concern, will be exhibited in relation to ourselves.

    The rule of law, its equal application to all people, is the most fundamental principle underpinning our democracy. In some ways it is more fundamental even than the right to vote. A government that breaches that principle so clearly, so plainly, so blatantly, a government that asserts that the Military Commission has provided a legitimate day in court, is a government that on this issue stands condemned.

    I am convinced that there was a political settlement to get rid of the Hicks case, cool it, calm it, wash it out of our hair; it has become too hot to handle. David Hicks has been silenced until after the Australian election. What has happened has stained Australia’s reputation. It will take a different example and a different concern to repair the damage — damage that we should not forget.

  141. Brendon says:

    It is all timimg, really.

    Had Hicks been free today to join the terrorist organization Jundallah he would be getting American money to operate in Iran. He would be a hero.

    And if Hick was with Al Qaeda in the 1980’s he would had a guest spot on a Rambo movie as a “freedom fighter”.

    http://www.britannica.com/eb/topic-1010422/Jund-Allah

    http://blogs.abcnews.com/theblotter/2007/04/abc_news_exclus.html

  142. John Greenfield says:

    All this Malcolm Fraser deifying really is too much. The guy was an absolute asshole. These people need to be judged by what they did when they had power; not by their warm lettuce-flogging epistles to the luvvies once they are in History and God’s waiting room. Please.

  143. Spiros says:

    I’ve never forgiven Fraser for November 1975 and believe his government was as bad as people were saying at the time. (This of course includes the performance of his Treasurer, J. Howard.) Going back further, his performance as Defence Minister during the Vietnam War was even worse.

    But what he’s said about Hicks is true.

  144. Katz says:

    Hilarious revelations from the Convening Authority. It seems that Brigadier-General Thomas Hemingway, legal adviser to the military tribunal convening authority, came up with David Hicks’s very quaint gag order.

    It would appear Hemingway had protracted negotiations with Defense Counsel Mori over whether the gag order whould be one year or two, and whether it could or should apply to everyone connected with Hicks, including presumably his barber. (It was finally agreed that Hicks’s barber could speak.)

    But it would appear that Mori and Hemingway did not discuss the small but knotty practical issue of how to get Hicksy back into the pokey were he to blab to his barber, or to anyone else, about the origin of foreign objects he may have found up his rectum.

    And then this!

    Hicks’ Adelaide lawyer, David McLeod, said yesterday that compliance with the 12-month gag was up to Hicks, and he would not advise him either way on whether to abide by it.

    “At this stage David has signed up to the agreement, and one would assume that if he has done that he expects to abide by it, but that remains to be seen,” Mr McLeod said.

    Asked if it was realistic to think Hicks could be returned to Guantanamo Bay for breaching the gag, Mr McLeod said: “According to Major Mori, yes.”

    The question arises whether General Hemingway relied on any greater legal authority than Michael Mori when deciding that, yes, we can hoick Hicks out of the barber’s chair in suburban Adelaide if he spills the beans.

    And as an aside. Hemingway’s declaration takes the heat off Howard as the source of this deal. Howard is too smart to deal with dolts like Hemingway.

  145. FaceLift says:

    Katz,

    Hemingway’s declaration takes the heat off Howard as the source of this deal.

    Glad to be able to agree with you on something. Well put! Happy Easter!

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