The Guardian 14 February, 2007

Act now to bring Hicks home

Anna Pha

"David Hicks’ situation can be drawn to a quick and fair close. If the US believes he violated US federal law, then Australia should demand that the US immediately try Hicks in a US federal court. Otherwise, he should be returned home and not subjected to a tribunal system that the US deems insufficiently fair to try its own citizens" said Major Michael Mori, David Hicks’ defence counsel.

The Coalition government is coming under increasing pressure from the public and from within its own ranks to bring David Hicks home. Prime Minister John Howard’s setting of a deadline for the US to lay charges — which won’t be met — illustrates that he is feeling the political heat.

Howard recently admitted that the US would send Hicks back to Australia if the Australian government made such a request. Howard steadfastly refuses to.

After more than five years of the most cruel and degrading conditions in the US Guantanamo Bay prison on an area of Cuba the US illegally occupies. Hicks has still not been charged of any offence. He has spent almost two of these years in solitary confinement, deprived of sunlight, with only one or two hours a day outside of his cell, usually at night. Charges are being prepared of "material support of terrorism, which the US authorities conceded is not a war crime, yet the case is to go before a military commission, not a federal court.

These military commissions, still to be set up, are under the recently passed Military Com­missions Act — the military commissions set up by a previous Act to try Guantanamo prisoners were found to be illegal by the federal court.

The new commission is likely to face similar legal challenges which could take years. The Act seeks to deny non-US citizens the right to go to the federal court if they are charged under it. It also says that no one being tried by military commissions can invoke the Geneva Conventions under it as a source of rights.

These commissions can make judgments on pure hearsay and use "evidence" obtained under torture, evidence that is provided and not seen (for "security reasons") by the defence or Mr Hicks. With such provisions their aim is certainly has nothing to do with a fair trial. The whole incarceration of Hicks at Guantanamo was political from the start. The US and with it the ever compliant Australian government have locked themselves into tight comer and are still hoping for some sort or conviction.

Retrospective legislation

Major Mori writes: "What is most disturbing is that now, five years into his confinement at Guantanamo, Australian ministers and the US are saying that Hicks has violated US federal law. If this is correct, there was no reason for Hicks to remain at Guantanamo for five years without a trial in a US federal court. Either Hicks did not violate US law or there was an intentional decision to deprive Hicks of a US federal criminal trial where he would have had the same legal protections as a US citizen."

Major Mori makes the point in an article published in The Age that the Australian government is opposed to the use of retrospective legislation, yet that is exactly what it is — an Act passed in 2006 being applied to events of 2001.

The US authorities claim it is not retrospective, but a "codification" of law that is 10 years old. The 10-year-old legislation is not under military law — it comes under the jurisdiction of federal courts. Anyone tried under that legislation should come before a federal court, not a military one. The Australian government makes similar claims — that it is not retrospective.

Backbenchers Bruce Baird, Peto Georgiou and Warren Entsch have openly said that Hicks has been in detention too long, will not receive a fair trial, and should be brought home and placed under a control order. Liberal MPs have expressed concern at the large volume they are receiving call for Hicks to be brought home.

Lobbying MPs is clearly having an effect with an election coming up. So keep those letters, emails, faxes, phone calls coming. Howard is on the back foot now, and Hicks will be brought home soon, as long as his deteriorating health condition holds out.

Mori says that Hicks wants desperately to return to his family and is willing to do whatever the Australian government asks of him on his return.

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