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. 



Yesterday the military judge presiding over the 9/11 military commission trials concluded that a Defense Department order requiring him and other commission judges to move to Guantanamo in order to speed up the trials constituted an appearance of unlawful command influence stating  “An objective, disinterested observer fully informed of all the facts and circumstances would harbor a significant doubt about the fairness of the proceeding.”  (Order, p. 8). Really? Ya think? Someone could actually doubt the fairness of the military commission proceedings? I mean we have learned that the FBI has infiltrated defense teams, that they have put listening devices in attorney client meeting rooms, CIA interpreters have infiltrated the defense teams-- the sound was cut off in the courtroom during discussions between the judge and defense counsel--by unknown people- because something was said on the public record that some unknown individual far from the courtroom did not apparently think should be on the record--- and now there is finally a recognition that someone might think things are not fair? Well anyway, better late than never right? 
The military Judge suspended the trial indefinitely pending rescission of the order requiring the judges to move to the base.  Dismissal of the charges could follow if the move order isn’t rescinded and/or the prosecution doesn’t appeal within five days. 
Read the entire amazing order here.  
Could this be the final straw that shuts down the military commissions?

The new rule requiring the judges to move to gitmo was rescinded. Read more here.
I guess we have to wait for more interference and doubt about the fairness of the proceedings before the commission shuts down!