Thursday, February 26, 2015


Hicks: the questions that should have been asked

The biggest questions about the Howard government's blunders and crimes against Hicks are unasked.
For starters, why did the Australian government of the day refuse to provide effective consular assistance to one of its citizens, when it does no less for drug smugglers, murderers and rapists in trouble overseas?  
Why did Australia accept, without question, US assurances that Hicks was guilty, and not mistreated?
Can it ever be lawful for another country to seize an Australian citizen, question him on its ship on the high seas and then intern him in a prison camp, without any Article 5 hearing on prisoner of war status as required by the Geneva Conventions (and in Hicks' case, the US Uniform Code of Military Justice)?
Does the US president have the authority to unilaterally suspend the Geneva Conventions (or any other treaty)? Or flout parallel UCMJ provisions that track Geneva, word-for-word?  
After the initial decision in Hicks' favour in DC district court, how could the Howard Government take the side of the US government on subsequent appeals? Why weren't briefs filed on Hicks' behalf in Rasul - his own case that he ultimately won?  
Why wouldn't any government want to support its citizen's right to habeas corpus in a foreign court?
As for the military trials, is it possible that the Howard Government never took advice as to the legality of the prosecution of Hicks under either presidential or statutory military commissions? 
Did George Bush have power to create a system of military commissions outside the UCMJ? When the Supreme Court, in Hamdan, ruled he did not, finding instead that the Bush commissions violated both US law and Geneva Conventions, why didn't the Australian government demand Hicks' repatriation?
Incredibly, the government then supported and encouraged Hicks' re-prosecution under the new Military Commissions Act, an Act which also purported (unsuccessfully) to denyhabeas, and contained the novel Material Support for Terrorism, a "war crime" any first year law student could have assessed invalid.  
Aside from Hicks' own suffering, the worst thing about the Howard government's hostile mishandling of the affair was the terrible precedent it set, not least a presumption of guilt in "terror" cases and a reflexive deferral to the imperial demands of the US. 


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