Saturday, April 07, 2007

David Hicks: Reflections retrospectively

The outcome in the Hicks saga just won't go away with various people reflecting on the matter both in Australia and around the world. The more that emerges about the "trial" and the outcome, the more the questions which are raised.

One of the latest to weigh in on an analysis from a legal perspective is Ben Wizner, attorney for the American Civil Liberty Union. In a piece in the LA Times under the heading "The real crime in the David Hicks case" he says:

"With the guilty plea and sentencing of Australian David Hicks before a military commission at Guantanamo Bay last week, the United States achieved something it had not attempted since Nuremberg: the conviction of a foreign citizen in a military tribunal for violation of the laws of war.

As in Nuremberg, it was not just the detainee on trial but the military commission system itself. The legitimacy of the enterprise hinges on whether the U.S. demonstrates to the world that it can provide impartial justice to those it accuses of war crimes.

I traveled to Guantanamo to observe the Hicks proceedings, and to say that they lacked the dignity and gravitas of Nuremberg is to engage in colossal understatement. The military commissions have been a profoundly unserious legal exercise from the start. The prison at Guantanamo was fashioned as an island outside the reach of U.S. law, and the commissions were devised to provide an illusion of legal process."

Mike Carlton's take on the whole Hicks "thing" in his weekly column in the SMH is put this way:

"How infuriating for the Bush-Howard media toadies that David Hicks turned out to be not much of a terrorist after all. Not a terrorist's bootlace, really.

For five years they dutifully parroted the official line. Hicks was a trained killer, a murderer, the worst of the worst, a threat to us all, an evil menace, Osama bin Laden's golden-haired boy, a traitor.

But when we got to the crunch, all the Pentagon could produce was a confused and deluded knockabout whose most wicked act of terrorism was to guard a Taliban tank at Kandahar airport for a few days. When the whips got cracking, he threw away his AK-47 and did a runner.

The indefatigable Major Michael "Dan" Mori, put it succinctly. His client was a hapless "wannabe soldier", who had harmed no one. "The wannabe finally got a real taste of it and ran away," he said.

In this column last week I predicted that Hicks would be banged up behind bars long enough to keep him out of the way during the coming election campaign. This duly came to pass.

It is possible that the Prime Minister engineered the happy outcome over a Scotch with Deadeye Dick Cheney during his recent visit. It is equally possible that the Americans, ever helpful, did it off their own bat. A Pentagon brigadier-general boasted, rather oddly, that he alone had thought up the idea of gagging Hicks for a year, on pain of a return to Gitmo should that undertaking be broken. This hit the heights of absurdity. Even Philip Ruddock had to concede that it was unenforceable in law and in practice.

A last word might go to that former Liberal prime minister turned subversive left-wing anarchist Malcolm Fraser. The US military commission was a fraudulent tribunal, he wrote for the online lobby group Australians All.

"If our Government is prepared to allow any one of its citizens to be sacrificed on the altar of expediency, if our Government demonstrates that it is not really concerned for justice, for a fair process, for one person, then none of us knows whether circumstances might arise in which the same lack of care, lack of concern, will be exhibited in relation to ourselves."

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