Patrick Goodenough | International Editor | Friday, June 30, 2006
David Hicks, an Australian convert to Islam captured in Afghanistan in late 2001 after allegedly training with al-Qaeda, was one of the Guantanamo Bay detainees due to be prosecuted by a military commission. He had pleaded not guilty to three charges -- conspiracy to commit war crimes, attempted murder, and aiding the enemy.
The Supreme Court has now ruled the commissions illegal, throwing into question the fate of the more than 400 detainees being held at the U.S. military base in Cuba. Hicks was one of the first group of 10 inmates to be awaiting trial by a military commission.
Unlike Washington's other key war-on-terror ally, Britain, Australia has supported the military tribunal concept, to the anger of Hicks' supporters at home.
While Britain successfully fought for the release of all its citizens from Guantanamo Bay, Canberra has declared itself satisfied that Hicks will get a fair trial.
Hicks late last year won the right to acquire British citizenship in a bid to win freedom by that route, but the British government stymied the attempt this week by saying it would not seek his release, in line with policy regarding dual nationals in third countries.
Thursday's Supreme Court ruling said the military tribunals were illegal under U.S. law and the Geneva Conventions, which govern international treatment of prisoners of war.
Howard, speaking in a radio interview from China, refused to admit himself embarrassed by the court decision, and also made clear he would not use the development to call for Hicks' release or return to Australia.
If he was returned to Australia, he said, Hicks would not be able to stand trial because at the time of his offenses it was not a crime under Australian law to train with or support al-Qaeda.
And he did not think Hicks should be able to get away with what he had admitted to having done - "he trained with al-Qaeda, and in full knowledge of the terrorist attack on the 11th of September he returned from Pakistan [to Afghanistan] to rejoin al-Qaeda."
Howard said he wanted to see Hicks brought to trial in the U.S., as soon as possible.
"As the military commission trial is regarded by the court as unconstitutional, there clearly has to be another method of trial -- a court martial or a civilian trial -- which conforms with the Supreme Court decision."
Howard also pointed out that the court ruling had related only to the constitutionality of the tribunals. "The decision does not rule that the detention of people is illegal, nor does it decree that Guantanamo Bay should be closed down."
Hicks' trial has been delayed since last November, when a U.S. district court upheld an application by Hicks to grant a stay pending the outcome of the Supreme Court appeal brought by another of the group of 10 detainees, Salim Ahmed Hamdan.
With that appeal now finalized, Hicks' Australian lawyer, David McLeod, said he hoped the government would change its position on the detainee.
"The only option now available in the interests of both maintaining the credibility of the Australian government and in the interests of one of its citizens and the rights of an individual, David Hicks, is to call for his immediate release," said McLeod, who has called for an urgent meeting with the foreign minister, Alexander Downer.
McLeod said in a statement that the court decision "demonstrates that the rights and welfare of Australian citizens caught up abroad in legal processes that fall short of Australian and internationally-accepted standards cannot be allowed to be compromised by political alliances."
In the radio interview, Howard reiterated his uncompromising view about Hicks.
"I have sympathy for the principle that people should be brought to trial when they're charged with an offence, but I don't have any sympathy for somebody who trained with an organization such as al-Qaeda," he said.
Australian Attorney-General Philip Ruddock in a recent written briefing said the U.S. military tribunal system was designed to afford each accused person a full and fair trial, with procedural guarantees including the presumption of innocence, standard rules of evidence for prosecution and defense; and the requirement that guilt be proven beyond reasonable doubt to secure a conviction.
In addition, he said, Australia had secured an agreement with the U.S. which, among other things, precluded the seeking of the death penalty, and would enable Hicks to serve out any prison term handed down in Australia.
On Thursday, Senate Majority Leader Bill Frist said he would introduce legislation allowing President Bush to use military tribunals to prosecute Guantanamo suspects.
"Congress should work with the president to update our laws on terrorist combatants to respond to the new threats of a post-9/11 world," he said.
Earlier, Bush said he would work with Congress to find a way that would "that would enable us to use a military tribunal to hold these people to account."
In a joint press conference with Japanese Prime Minister Junichiro Koizumi, Bush said he would not jeopardize the safety of the American people.
"I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court."
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