LawFuel – Law Newswire – From ‘Jurist’ – Australian Prime Minister Malcolm Fraser says that the trial of Australian Guantanamo detainee David Hicks before a US military commission has demonstrated the disturbing willingness of two allegedly democratic governments to abandon the rule of law for an expedient and evil purpose.
President Bush established Guantanamo Bay to enable the United States to put prisoners alleged to be terrorists beyond the reach of the American legal system, beyond the reach of the Geneva Conventions and beyond the reach of any element of international law. By executive decree, he established military tribunals which the United States Supreme Court struck down on the basis that the President had exceeded his powers. Congress passed a law establishing new military commissions, a law that has not yet been tested in the Supreme Court.
The future of the commissions probably rests on a judgment as to whether or not such laws can be passed in relation to non-citizens. Their rules of procedure are utterly inconsistent with the rules of procedure in the normal justice system of America or of Australia. The loose use of hearsay evidence and evidence obtained under harshly intrusive questioning is allowed. It is left to the President to define how far that intrusive questioning may go.
This is the system established to try David Hicks and other people from Guantanamo Bay. In my view it was a system designed to achieve a guilty verdict on the basis of evidence that would be totally unacceptable if applied to American citizens or to an Australian citizen within Australia. The circumstances surrounding the Hicks trial, if one can call it that, and the plea bargain support that view.
For around a year, perhaps for longer, David Hicks had been kept in solitary confinement, no access to the sky, to the outside, to other people, inadequate exercise, a lighting system controlled from without the cell and also, we are advised, temperature changes from extreme cold to heat, could be part of the regime.
There were attacks on Major Michael Mori and his credibility and the way he was conducting Hicks’ defence, all undertaken by the prosecution, even at one point implying that Major Mori could be charged. At the arraignment proceedings itself, Hicks’ civilian lawyers were barred from the process because they wouldn’t sign a blank cheque agreeing to rules for the conduct of counsel, which the United States Department of Defence had not yet drafted.
These processes collectively were designed to put Hicks under intense mental pressure, perhaps for a very specific reason. While the United States government, and for that matter the Australian government, seemed to want – as New South Wales Director of Public Prosecutions Stephen Charles indicated – a guilty verdict, the evidence they had available, even after five years imprisonment, was weak and could not have been successful for a United States citizen in a civilian or in a normal United States court martial.
