The Guardian 22 November, 2006

Bring David Home!

Pressure is mounting on the Federal Government to have David Hicks released from Guantánamo Bay in Cuba where he is being held by the US. Even Howard’s own Justice Minister, Chris Ellison, has said that Mr Hicks has been in detention for too long. David Hicks has been held in Guantánamo Bay for five years without charge — almost two of those years in solitary confinement.

Last week a meeting of state and territory Attorneys-General in Fremantle signed a historic declaration of principles which they regard as fundamental to the Australian legal system. They endorsed the Fremantle Declaration in response to the Federal Government’s appalling handling of the David Hicks case.

West Australian Attorney-General Steven Kons said the principles include the presumption of innocence, the right to a fair trial, the principle of habeas corpus(the prohibition on indefinite detention without trial), the right to access any evidence that may be used against you, the prohibition of torture, access to rights under the Geneva Conventions, the separation of powers, and the prohibition of the death penalty. (The separation of powers refers to division of government into three branches: legislative, executive and judicial.)

"These are fundamental norms of the Australian legal system, and we as Attorneys-General are responsible for ensuring that these principles are upheld in our jurisdictions", said Mr Kons.

David Hicks has not been assured of any of these rights. This was illustrated very clearly by Mr Hicks’ military lawyer Major Michael Mori when he addressed the meeting of Attorneys.

Needless to say, the Federal Attorney General Phillip Ruddock did not have the courage to accept the invitation to hear first hand about the barbaric treatment of David Hicks.

Other Parliamentarians from both major parties and many members of the legal profession did however attend meetings and many were visibly shaken by what they heard.

Despite being held in Guantánamo soley on the basis of "suspicion" he has spent many months in solitary, locked up in a small hell-hole 23 hours a day — what is officially called "single cell occupancy".

For the first 16-18 months he was denied access to sunlight — the one hour of exercise outside of the cell was at night.

And the Howard Government says he is fine!!

The government blames David Hicks for the long delay in him being charged. Is it his fault?

He was captured on November 21, 2001 and not charged with anything until June 2004 when charges were laid by a military panel set up to hear the case. But the charges were subsequently thrown out because at the time of his capture they did not exist under US law. The Military Commission set up to hear his case did not operate under any of the rules of a public court.

A challenge in the US court system by one of the other prisoners saw the US Supreme Court in June 2006 in the Hamden v Rumsfeld case find that the US Military Commissions were illegal.

The Bush administration then decided to change the rules. The Military Commissions Act (MCA) of 2006 was passed in September 2006 and signed by Bush on October 7. The US Secretary of Defense is currently writing the rules to govern how the Military Commissions will operate.

US citizens exempt

The MAC is an amazing piece of legislation widely condemned around the world by legal, human rights and other groups and individuals.

It does not apply to US citizens. It seeks to reverse two court decisions, and deny non-US citizens the right to go to the Federal Court if they are charged under the Act.

The MCA says that it complies with the Geneva Conventions. At the same time, however, it contains provisions saying that no one who is subjected to trial by Military Commissions can invoke the Geneva Conventions under it as a source of rights.

So far Mr Hicks has not been charged with any offence under the new legislation.

There is no way that any prisoner can get a fair trial under the MCA’s Military Commissions. The rules:

  • enable the prosecution to withhold its source of "evidence" or how it was obtained; it is up to the defence to prove it is unreliable without knowing where it came from

  • permit the submission of evidence obtained under torture

  • deny defence counsel access to "classified evidence" even though defence counsel are approved military personnel.

    The MCA not only attempts to create new offences for aliens but makes them retrospective to 2001.

    As for the future, if Mr Hicks were charged tomorrow, there could be years of delays in the courts as the new system is challenged.

    The Bush administration is determined to keep its activities at Guantánamo out of the US court system, and to operate beyond US and international law with its treatment of prisoners at the US camp. If cases such as that of Mr Hicks were to be heard before the federal courts the authorities would have to hand over documents and show for the world to see how it obtained its "evidence" and what little evidence it had. The MCA is aimed at giving the government something to hide behind while keeping up a public semblance of fighting the "war on terrorism".

    The Australian Government has shown no interest in investigating any crimes — it has not been able to dig up any offence under Australian law that Mr Hicks could be charged with.

    The US Government says it would release Mr Hicks if the Australian Government asked for his release. It has so far released around 300 of the 700 prisoners and only charged around 10 of them. It released a number of Afghanis so that they could assist the Afghan Government in the elections in that country and most recently responded to Iran’s request for prisoners to be returned to Iran.

    There is only one thing holding up David Hicks’ release: the Australian Government.

    David could be released if enough pressure is placed on the Howard Government, if more publicity is given to his plight and opinion polls show that this is an issue of concern with the electorate. Just as Howard was made to "discover" global warming, he can also be made to bring David home.

    Contact your local MP and State Senators and let them know what you think of this grave injustice that is being perpetrated against an Australian citizen.

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