The Guardian 10 August, 2005

Hicks trial will be a fraud

Bob Briton

Howard, Ruddock and the rest of the federal government have been rattled by the latest revelations about the US "military commissions" reportedly set to try Australian Guantánamo detainee David Hicks. On top of scathing condemnations from numerous sources about the illegality of his imprisonment and the procedures being proposed by the US administration to try him, comes news that military lawyers for the prosecution have left their posts in disgust at the bias inherent in the kangaroo court arrangements.

E-mails to authorities last year from US Major Robert Preston and Captain John Carr have been republished in newspapers in Australia and the US and have exploded like hand grenades. Major Preston said; "I the consider insistence on pressing ahead with cases that would be marginal even if properly prepared to be a severe threat to the reputation of the military justice system and even a fraud on the American people."

Captain Carr agrees. "I echo Major Preston's belief that I cannot morally, ethically or professionally continue to be part of this process." A third military prosecutor — US Air Force Captain Carrie Wolfe – has resigned because of concerns that the commissions are rigged.

Revelations from Preston and Carr include that:

  • Chief prosecutor Colonel Frederick Borch repeatedly said commission members were "hand-picked and will not acquit detainees."

  • The FBI or CIA will withhold 10 percent of the material from defence lawyers that may be of assistance to the accused.

  • FBI documents about the abuse of prisoners have been destroyed.

  • The inadequacy of the preparation of the cases could "constitute a dereliction of duty, false official statements or other criminal conduct".

  • The chief prosecutor is "good friends" with Colonel Peter Brownback, the officer in charge of running the commissions.

    These objections are additional to existing widespread complaints that:

  • Of the panel appointed to try Hicks, only the presiding officer has legal training.

  • Prosecutors can rely on written statements giving the defence no right to cross-examine the authors.

  • Hearsay evidence can be used.

  • Evidence obtained under torture will be admissible.

  • Appeals will go to a two-person panel chosen by arch-hawk Donald Rumsfeld.

    The US administration has put the claims down to "personality conflicts" on the staff of the military commissions. As Hicks defence lawyer US Major Mori points out, this might explain the actions of one former prosecuting lawyer, but not three.

    The excuses offered by the Australian government are even lamer. In March 2004, when the emails in question were first circulated, Foreign Minister Alexander Downer insisted the US military's extremely rough form of "justice" for Guantánamo detainees would be just fine. He now maintains that previous misgivings have been dealt with and that now everything will be fair and above board.

    Howard's command of weasel words left him briefly when quizzed about the latest bombshells during an ABC radio interview:

    PM: "The Australian ambassador [former ASIO boss Dennis Richardson] spoke again to the Pentagon last night, our time, and the head of the military commission operation said those allegations had been extensively investigated over a two-month period."

    Interviewer: "By whom?"

    PM: "By the people against whom the allegations were made."

    A suspect organisation is given the job of investigating itself and comes away with a clean bill of health — can't get any fairer than that!

    The list of high ranking and authoritative people and organisations condemning the farcical procedures is growing. Among them are: the American Bar Association, the Australian Law Society, Amnesty International and British Attorney General Lord Goldsmith. Australian Defence Force lawyer Captain Paul Willee QC has said natural justice would be denied if the former prosecutors' claims were substantiated.

    Australian businessman Dick Smith points out that Howard government claims that there are no Australian laws under which to charge him are ludicrous. He quotes George Williams of the University of NSW law faculty that Hicks could be charged with breaching the Fourth Geneva Convention, the Crimes Act and the Foreign Incursions and Recruitment Act.

    Former High Court Judge Mary joined the critics of the government last week. "It horrifies me to think anyone could think this is good enough. It simply isn't good enough", she told the ABC. She added that Hicks clearly had not broken any American law or he would be tried in an American court.

    British lawyer Louise Christian represented three former Guantánamo terror suspects now living peacefully back home in the UK. She had some advice recently for Australians about their government:

    "Australian citizens need to say to the Australian government 'this isn't good enough', and you need to give your citizens the same protection that the British government has given to its citizens."

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