The Guardian 10 August, 2005


Credibility of US military courts
in tatters

Any credibility that the US military court system ever had is steadily being blasted as three US offices of the military courts set up to try David Hicks have resigned, Captain Paul Willee, the head of Australia's military bar, US Major Mori who is a military appointed lawyer to defend David Hicks, Mary Gaudron a former judge of Australia's Supreme Court have all condemned the military courts set up by the US.

Its only defenders remain the US leadership and, of course, the supine leaders of the Australian government who never miss an opportunity to echo whatever opinion and justification that the US leaders hand down.

Paul Willee told the Melbourne Age that "this is a system in which one side writes the rules, chooses the members, makes all the decisions and then reviews their own decisions. There is no better example of a rigged trial."

In response to the claim that the military court procedures have been changed following representations by Australian government Ministers, Major Mori challenged the Australian government "to identify one substantive change that has made the process fairer since the time these emails were written" (that is the emails in which three US military lawyers resigned).

The claim by Howard that if returned to Australia, David Hicks would "go free without answering in any way for those allegations" because the anti-terror laws were introduced after the alleged crimes were committed has also been disputed.

Two Australian academics, Professor George Williams a leading constitutional lawyer and Devika Hovell, a former associate to a High Court Judge, say he could be charged under the Crimes Act or the Geneva Conventions.

In other developments which show that the US is squirming over the international criticism of its operations at Guantánamo, arrangements are being made to return Afghani, Saudi Arabian and Yemeni prisoners to their home countries, providing they are kept in prisons there. It is even offering to build a prison for the Afghani government. The torture of prisoners may well continue in these countries but the aim of the US is to spread the criticism.

Max Waxman, the US deputy assistant secretary of defence is quoted in the Washington Post as saying that "We, the US, don't want to be the world's jailer. We think a more prudent course is to shift that burden onto our coalition partners". It is hard to imaging a more cynical statement.

At the same time the Washington Post declares that these arrangements are the "first major step toward whittling down the Guantánamo population to a core group of people the US expects to hold indefinitely". As far as the US authorities are concerned all those held for years in US custody are guilty. Most have not been charged with any crime and have not been tried. In these circumstance what chance has David Hicks of getting a fair trial or of being acquitted given the spinelessness of the Australian government? He is already regarded as guilty and faces imprisonment "indefinitely".

Amnesty International has made even more serious charges that "the US is holding an unknown number of detainees in secret, incommunicado custody in unknown locations and unknown conditions. Amnesty International has received reports that in the context of the 'war on terrorism' the USA has established secret detention facilities in a number of countries. These could include Jordan, Pakistan, Egypt, Thailand and Afghanistan and in the US base on the British Indian Ocean territory of Diego Garcia."

In its 10-page report Amnesty lists the testimony of a number of persons who have been sent to destinations unknown to them, tortured and moved on secretly to other places of detention and torture.

All of this is in violation of international law. The UN Declaration on the Protection of All Persons from Enforced Disappearance states: "Any person deprived of liberty shall be held in an officially recognised place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention…"

But international law clearly means nothing to the governments of the US and Australia who have torn up all rule books and imposed procedures that are in line with their objectives. Everything is being justified by the "war on terrorism".

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