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Articles Critique The race is not to the swift, nor the battle to the strong, Nor bread to the wise, nor wealth to the intelligent, Nor success to the skilfull; Time and chance govern all. Ecclesiastes. There is a wild spirit of adventure that looks like malice. Nietzsche. David Hicks was captured by the Northern Alliance in Afghanistan in early December 2001 while travelling with Taliban soldiers who were defending their territory from the Northern Alliance. Davids father, Terry, said his son seemed unaware of the September 11 attacks and extremely doubtful of their authenticity when they spoke on a mobile phone a few days after the American bombing campaign had begun. Since Davids capture he has been handed over to the Americans who have moved him to Cuba and the infamous Camp X-ray.
He remains there uncharged after numerous interrogations by both American and Australian government military officers and/or officials. He was detained in a small cage for more than five months, and was transferred to a small shed type prison cell about the middle of 2002. There is a bed, no chair and no window. The lights are on twenty four hours a day. He has only two fifteen minute exercise periods a week where he is walked shackled between two guards. He is forced to wear an overall type uniform whether it is forty-three degrees Centigrade (over one hundred degrees Fahrenheit) or less.
In a recent letter (early 2003) he wrote about an operation - the nature of this was not disclosed - where he was in hospital and was treated like a human being for three days. After this he was given a chair to sit on for three days. Presently, it seems that the Australian government officials have been trying to persuade David to confess to some crimes in order to be repatriated to his homeland. This is despite comments by Victoria Clarke, Pentagon spokesperson, in February of 2002 stating that all prisoners in Cuba were only the rats and mice of the Taliban and would possibly never be charged with any crime. (This includes the man said to be over one hundred years old who was sent home to Afghanistan in the last few months.) Furthermore American officers from the camp have visited Afghanistan and asked those in command to stop sending these unimportant prisoners to the camp and to concentrate on bigger fish - if and when they capture them. David has not been charged with any crime in Australia. He has not been charged with any crime in Afghanistan.
He is detained without charge, without trial and without access to family or consular assistance. Last month the Bush administration announced that it planned to put Hicks, British citizens Moazzam Begg and Abbasi Feroz, and three other Guantanamo Bay prisoners on trial before a military tribunal on as yet undisclosed charges. The Howard government has enthusiastically supported this flagrant contravention of the Geneva Conventions on prisoners of war and claimed that the kangaroo court would provide a fair trial. Terry Hicks first learnt that his son could face a US military tribunal in the Bangkok airport transit lounge on his way to Pakistan. He spoke last week with the World Socialist Web Site, a few days after his return to Australia. Some sections of the media have also reported that he was held for 5 days, but it was 10.
As soon as the American forces arrived in this area and found out, they seized David. Even if it can be proved that David is innocent, the only evidence they will allow is the intelligence they have gathered at Guantanamo Bay. This means information gathered under stress and duress, which would not be admissible in any Australian court. And the bottom line in these trials is that President Bush makes the final decision on everything, and it is not fair. David is probably being forced to admit to all sorts of things. But even if he refuses to buckle under this pressure and is found not guilty, the US military can still keep him for as long as it likes. No one still knows when and where the trial will be held, or who is on it and how it will operate.
The Australian people have got to start thinking about what this means and where it is leading. There are so many things wrong about this that it is hard to know when to stop. One thing that should happen though is that Mr Howard should be hauled into court for saying that David Hicks is guilty before he has been charged or put on trial. This is illegal. Howard has violated Australian law and this is one of the reasons they do not want to put David on trial in Australia. It is not known how he gets away with it.
If one only looks at Howards record, he would be able to see that there was the governor general fiasco, the children overboard issue, the lies about weapons of mass destruction and now David Hicks and Mamdouh Habib. The lies and deceit are incredible, but the media says nothing. The Howard government should also be prosecuted for refusing to take up the defence of its own citizens, but my guess is they want to have a show trial in order to justify the so-called war against terrorism. Howard can say what he likes, when he likes and the media broadcast it night and day. This is very difficult to deal with, particularly for someone like Maha Habib, who is from an immigrant background and its much more difficult for her. This is another hurdle she has to deal with.
Regardless of whether David or Mamdouh are innocent or guilty, they cannot be kept prisoner in this way. This is a total violation of human rights. The basic point is since they have not been charged after 20 months, they should be released. If it can be done with prisoners from other countries like Afghanistan and Pakistan then why cannot it be done with Australian citizens. The US and Australian governments keep trying to create the impression that if the Guantanamo Bay prisoners are released, they will return home and become sleeper terrorists. Howards attempts at this sort of thing are pathetic.
He is clutching at straws, but the straws are getting shorter. It may seem strange, but Adelaide born David Hicks has much in common with Hemmingway and Koestler. More than a person might imagine, for each of the three was (is in the case of Hicks) an adventurous spirit with the soul of a poet. The news media in Australia even had some blonde bimbo of an early morning news presenter read to us an alleged example of Hicks verse as an intended means of denigrating him. After all, when evaluating poetry, it is timely to bear in mind the inescapable fact that facility with pentameter can be developed over time, for it is merely a craft, but the real art of the poem resides in its content. Secondly, all three involved themselves in the internal conflict of a foreign nation.
The Spanish civil war in the case of Ernest and Arthur and the Afgani civil war in the case of David, who unlike his two literary colleagues actually took up arms in the defense of the governing party (Taliban), which a decade earlier had won the admiration of the U.S. by booting out the Russians and bringing the evil empire to its knees. So then, no one could suggest that these three men are not kindred spirits (warrior poets), but what disparate fates awaited them purely on the basis of time and chance. The first two were pronounced heroes, while David, due to nothing more than a shift in cultural values over time, has been branded a pariah. In any event, how was David Hicks supposed to have been able to foretell that the U.S. would invade Afganistan, kidnap him from within the jurisdiction of a sovereign country, and finally invent a new status (illegal combatant) permitting them to keep him at arms length from due process until hell freezes over, until the war on terror is won.
The U.S. has been undergoing an interesting socio political process of evolution for the last three centuries or more. What with its witch trials, slavery, civil war, McCarthyism, Pentecostalism and jumping paranoia, its little wonder that reason struggles to get a back seat. Since John Howard formed his close friendship with US President George W Bush, many Australians could be forgiven for thinking that he could use his influence to further Australian interests. The looming trial of David Hicks is evidence that the Prime Minister has failed to take the opportunity to use this influence to the advantage of an Australian citizen. David Hicks has been held in Guantanamo Bay, Cuba in a US military camp for 19 months, without trial or charge, in conditions that can only be described as cruel, inhuman and degrading treatment. Mr. Hicks may or may not be a terrorist, but the birthright of all Australians is that their Government will fight for their legal rights when they are imprisoned overseas.
The Government should demand the same treatment for Australians as is received by citizens of the United States. The only US combatant captured in Afghanistan, John Walker Lindh, was offered a criminal trial in the United States before a court with full legal rights and due process in accordance with US law. By contrast, one of Australian citizens will face a military commission without any right to appeal. The commission will not be independent from the US Government and will not operate under the standard rules of evidence. Mr Hicks will have a lawyer chosen for him by the US Government and his own Australian lawyer will be limited to the role of a consultant. Recently, Government Ministers have pre-empted the legal process by leaking alleged evidence to be used before the commission. If this selective disclosure of evidence had happened prior to a criminal trial in Australia, the Ministers could have been found to be in contempt of court. The Governments sensitivities on this matter were displayed clearly this week when The Australian newspapers Freedom of Information request about the legality of David Hicks' detention was denied on the basis that it might damage relations with America. It seems that, for the Government, David Hicks poses less of an issue about justice for a citizen and more of a matter of not offending our American allies.
Britain, the other member of the coalition of the willing, is fighting hard to seek justice for its citizens who could share Mr Hicks fate. With their long legal tradition, the British are rightly concerned about the proposed military trial and Tony Blair made such representations directly to President Bush. Australia was unable to prosecute Hicks under its anti-terrorism laws because they did not exist when Hicks allegedly trained with al-Qaeda in late 2000 and early 2001. Tough new terrorism legislation outlawing membership of al-Qaeda was not conceived until after the September 11, 2001, attack on the World Trade Centre, months after Hicks trained in Afghanistan. It was passed in November 2002, a year after he was captured. The Australian criminal justice system depends on comprehensive rules to prevent the admission and misuse of unreliable evidence. Rumsfelds order makes everything potentially admissible before a military commission, including unsworn statements, if it meets the fairly nebulous standard of having probative value to a reasonable person.
In Australia, a guilty verdict must be unanimous. At the military commission, it requires only a two-thirds majority, with unanimity only required to impose a sentence of death. In the Australian system a miscarriage of justice can be rectified by an independent appeals court. A decision of the US military commission can be reviewed only by a panel of three military officers appointed by Rumsfeld. The panel deliberates behind closed doors and is not required to consider any submissions from the accused. These practices are alien to our criminal justice system and the Howard Governments ambivalence has undervalued the rights we associate with Australian citizenship. Aided by Australias strong friendship with America, the Prime Minister should also make strong personal representations to the President to secure justice for David Hicks.
Instead, he sent one of his junior ministers, Senator Ellison, to Washington who simply secured the same concessions that the British had already fought for. It is unfortunate that Mr Howard is unable or unwilling to use his influence with the Americans and David Hicks fate relies upon the concessions earned by Tony Blair. It appears that Mr Howard has less regard for seeking justice for our citizens than his British counterpart. Labor created the US alliance and will always support it - but the Labor Party understands that there are some instances when Australia must stand up for its citizens. The unlawful detention and fair trial of an Australian citizen is perhaps the most fundamental example. A great Australian tradition is the principle of a fair go.
Regardless of what causes Mr Hicks might have supported, holding him in a cage and making him face a Breaker Morant style military tribunal is not the Australian way. At the very least, with trials now a possibility, the Government should be ensuring Hicks and Habib have full access to consular assistance and their Australian lawyers, and should be pressing for their return if they will not be afforded a standard of justice that meets the expectations of the Australian community. In fighting a war on terror we must show by our actions, and not just our military might, that we will defend all aspects of the Australian way..
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