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justice betrayed ......

John Richardson | 08.08.2005 22:57 | Anti-militarism | Repression | World

These deficiencies are peculiar to the US Miliary Commission, as proceedings brought before International Tribunals, US, British & Australian criminal jurisdictions & Military Courts Martials ensure that the rights of a defendant to a fair trial are protected.

The rights of a defendant to a fair trial are protected?
The rights of a defendant to a fair trial are protected?

AUSTRALIA/CUBA/USA: A stated belief of the Liberal Party is: "We believe in a just & humane society in which the importance of the family and the rule of law & justice is maintained."

The Prime Minister & a number of his senior Ministers, demonstrated how this Liberal Party belief, also a 'core' value of our democracy, has been betrayed: to the detriment of us all.

In a series of pathetic, dishonest & deliberately misleading performances, John Howard, Alexander Downer & Philip Ruddock dismissed claims by former US Military Commission prosecutors that David Hicks cannot & will not receive a fair trial before the Commission.

David Hicks has been held at Guantanamo Bay by the US military for more than 31/2 years & is shortly scheduled to face the US Military Commission, specifically set-up by the Bush administration to try non-US enemy combatants in his endless 'war on terror' (US enemy combatants get to be tried in the US criminal justice system & enjoy all the protections afforded by that system).

Over the course of his detention, Hicks has been subjected to torture & for a significant period, was denied legal representation & communication with his family. He continues to be held in solitary confinement.

In spite of its contention that Hicks & the other detainees held at Guantanamo Bay are 'enemy combatants' & therefore not entitled to the protections of the Geneva Convention, the US has refused to convene hearings to determine the status of the detainees, as required by the Convention.

If David Hicks faces the US Military Commission, it will be to answer charges existent under laws created by executive fiat more than 2 years after he was detained, itself a breach of International Law, but a fact that doesn't seem to bother our government or the US.

From the moment the US Military Commission was set-up, its processes have been subject to persistent criticism by eminent international jurists, governments & human rights organizations, including:

*Amnesty International

*Human Rights Watch

*Lord Steyn, one of the most senior judges in Britain's House of Lords

*the President, Swedish Bar

*the Dean of the Faculty of Advocates, Scotland

*the President of the Law Society of Northern Ireland

*the President of the Law Council of Australia

*the President of the Paris Bar

*the Chairman of the Council of the Bar of England & Wales

*the President of the Scottish Law Society

*the President of the Canadian Bar

*the President of the Law Institute of Victoria

*the President of the Law Society of England & Wales

*the Commonwealth Lawyers Association

*the Human Rights Institute of the International Bar

*Justice Richard Goldstone, Former Chief Prosecutor of the UN War Tribunal

At the heart of the criticisms of the US Military Commission is the fact that those brought before it will not receive a fair trial. Military Commission procedures provide:

*that defendants will not have the right to confront their accusers

*that defendants have no protection against self-incrimination

*that defendants have no fore-knowledge of penalties attached to offences

*that defendants have no protection against hearsay evidence

*that evidence obtained by torture will be admissible

*that evidence may be given anonymously

*that exculpatory evidence may be withheld

*that evidence may be withheld from the accused

*that evidence may be withheld from a defendant's legal representative

*that hearings may be held in camera

*that witnesses will not be available for cross-examination

*that a defendant's legal representative may not talk with the media

*that a defendant has no independent right of appeal

*that a defendant may not be released, even if found not guilty

These deficiencies are peculiar to the US Miliary Commission, as proceedings brought before International Tribunals, US, British & Australian criminal jurisdictions & Military Courts Martials ensure that the rights of a defendant to a fair trial are protected.

John Howard, Alexander Downer & Philip Ruddock have continuously claimed
that David Hicks will receive a 'fair trial'.

Confronted with the latest accusations that such will not be the case, they claim to have intervened with the US to correct the 'inadequacies' of the Commission.

At the same time however, whilst our little trio of despicable tricksters continued with their dishonest claims about the alleged fairness of the US Military Commission, whilst using every opportunity to continue their efforts to blacken Hicks' name with misleading information, they have studiously avoided any discussion of the specific shortcomings identified above.

Indeed, when former High Court Judge, Mary Gaudron, waded into the debate & criticised the Commission processes, the best our chief law officer could come-up with was to arrogantly dismiss her claims as coming from a 'retired armchair critic', whilst asserting that the responsibility for the efficacy of the Commission rested with the US & that they had told us that the proceedings would be fair.

Pontius Pilate couldn't have put it better.

Here was our nation's 1st law officer; a Minister of the government; a lawyer; stating that the responsibility for protecting & securing the legal & human rights of an Australian citizen was of no concern to him or his government but was a matter for the US to worry about.

But try as they did to dismiss their outrageous betrayal of an Australian citizen by his government, the controversy surrounding the US Military Commission would not abate.

It was left to the Minister for the Ageing, the blond ice-maiden member for Curtin in WA, Julie Bishop, to try & close-out the issue.

Ms Bishop showed a willingness to go where her more cunning, dissembling colleagues would not & blatantly asserted that the "US Court of Appeals recently reviewed the military commission process & found & ruled that it was appropriate in these circumstances".

The US Court of Appeals DID NOT review the Military Commission process. It addressed the question of whether the US President had the authority to set-up the Commission (agreeing that he did) but not the adequacy of its procedures & processes to deliver to deliver a 'fair' trial.

The efficacy of the Military Commission processes WERE NOT reviewed by the US Court of Appeals & to state otherwise is simply an out & out lie. (A full transcript of the Appeals Court judgement can be found here United States Court of Appeals: Hamden vs Rumsfeld.)

Labor's shadow Attorney-General, Nicola Roxon, challenged the accuracy of Bishop's claim but, of course, was ignored, just like everyone-else.

Bishop's effort highlights just how wilfully & callously determined this government is in ignoring its responsibilities to its citizens, when it is politically expedient to do so. And with further encroachments being made against our civil liberties every day, this is a fact that none of us should lose sight of.

In a late sign that some in the Liberal Party are unhappy with the behaviour of the government over the Hicks affair, Liberal backbencher, Judi Moylon, has publicly called for the government's intervention to ensure that Hicks receives a fair trial.

Short of restructuring the entire Military Commission process & removing it from the direct control of the US administration, this will only be achieved if David Hicks is tried within the US civilian criminal justice system (as US enemy combatants have been) or by Military Court Martial.

Only then will the interests of justice be served & only then will David
Hicks receive the fair trial that the today's Liberal Party is shamefully determined to deny him.


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David Hicks: affidavit on abuse and mistreatment

Full text of the affidavit lodged by Guantanamo Bay detainee David Hicks asserting that he has been tortured during his detention:


Hicks 'should be an Australian'

Allegedly, he is facing trial on charges of conspiracy to commit war crimes, attempted murder and aiding the enemy in the US but now they don't want to do it! Because it would no doubt be in breach of the US Constitution back in the US, back in the US, back in the USA. And back in Australia, back in Australia, back in Australia Mate!


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THE father of accused Adelaide-born Taliban fighter David Hicks caged himself in steel mesh outside the Liberal Party's national convention yesterday in a bid to invite John Howard to experience his son's fate.


John Richardson
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