SPEAKING TO David McLeod, Australian-based lawyer for David Hicks, last week, it becomes increasingly obvious just how difficult a task it is to represent a man classified under a made-up term, and being tried by a made-up system.

The root of the problem lies in the differences between waging conventional war and non-conventional war, with the protections available under the former system, and the lack of protections under the latter, McLeod said.

“Trying to deal with the trial of so-called ‘terrorists’ under the conventional law of war, is the same as trying to fit a round peg into a square hole,” he said.

“The reason I say that is that traditionally, certainly up until the Americans have mucked around with the law in this area, terrorism has never been regarded as an offence arising under the law of war. It’s always been dealt with as a domestic, criminal issue, and the very fact that they have described this process as the ‘war on terror’ is really a conflict of terms.”

According to McLeod, under traditional law of war, or armed conflict thinking, there cannot be a war in relation to terrorism.

“The way in which they are dealing with detainees is evidence of this, because on the one hand, the Americans want all the rights under the laws of war, but none of the obligations,” he said.

“They say that they can hold these people until the end of the ‘war’ because they are ‘prisoners of war’ (POWs), but they won’t afford them any of the rights of a [POW] and they won’t deal with them as [POWs].”

Rather than Hicks being permitted POW status or given access to POW hearings, he is subject to an ‘enemy combatant’ status review tribunal, which is not the same thing.

“They’re all rigged,” he said. “There’s no access to the outside world of any great consequence.”

A further problem with Hicks’ status under the law of war is the uncertainty as to when the conflict, being one against global terrorism, will come to an end.

“The whole idea about holding [POWs] until the end of the war is to stop them returning to the battlefield,” McLeod said. “But when you lock up murderers, the prime motivation for locking up murderers is to punish them for what they’ve done, and to try and rehabilitate them and then return them to the street. It’s not, in 99 per cent of cases, to keep them from murdering.

“So, if you wanted to keep all the criminals until the end of the ‘war on crime’, you would be building new prisons until hell freezes over.”

Just how mired Hicks’ situation has become in a war of words was evident in last week’s debate on SBS’s topical program, Insight (‘Hicks on trial’ 20/02/07), which saw the first televised Australian meeting of Attorney-General Philip Ruddock, chief military prosecutor Moe Davis, defence lawyer Major Michael Mori and Hicks’ father, Terry.

Much of the program was spent arguing the appropriateness of the charges proposed for Hicks. In relation to the charge of attempted murder, Davis said that by training with al-Qaeda and positioning himself with a weapon, Hicks “did everything humanly possible” to attack the US and allied forces. “He just never had the opportunity that we can show,” Davis concluded.

Mori’s response was that the US Government admits Hicks “never shot anybody, but we know the Taliban had 40,000 to 60,000 personnel over there. People were actually shooting. Why isn’t the US out rounding up the people who actually shot?”.

The charge of material support for terrorism is of further concern to the defence lawyer.

“Material support for terrorism never existed in any US military manual as a law of war offence. I doubt it ever existed in any Australian law manual. It’s never been prosecuted in the International Criminal Tribunal for Yugoslavia. I’ve never seen it done before.”

But once again, Davis held a differing view. “That’s incorrect, and Major Mori knows that,” he said. “The material support for terrorism has been a criminal offence in the United States for more than a decade.”

If two of the chief lawyers in Hicks’s trials cannot agree on a fundamental understanding of the charges levelled against the detainee, what hope does a jury have in forming a view on his guilt or otherwise?

But aside from the issue of charges, the terminology used under the military commission legislation in respect of McLeod is also questionable. Dubbed a ‘foreign attorney consultant’ by the first act, McLeod is uncertain about the permanence of his role under the second.

“There are two lawyers in Australia who were approved by the US Department of Defence under an arrangement that was made in respect of military commission mark one, and we were given the title of ‘foreign attorney consultant’,” he said. “That gave us access to Hicks in Guantanamo Bay, and it allowed us to be part of the legal defence team.”

But with the passage of the newest military commission Act, McLeod said the expression ‘foreign attorney consultant’ seems to have disappeared.

“They are still regarding what we have signed as in place, as such, because I went to see Hicks a few weeks ago, and no one tried to stop me,” he said. “So I guess they still regard that as making me one of the legal defence team.”

McLeod’s most recent session with Hicks led him to form a view of his mental and physical condition that is at odds with the positive reassurances coming from both the Australian and US Governments.

“He is in a spiral of despair. He hasn’t totally lost it … But he’s showing, as the psychologist and psychiatrist would say, all of the symptoms of someone who has been in isolation for a very long time,” McLeod said.

“He’s left with his negative thoughts, and this has had its physical impact on him. His face is drawn. His eyes … they sort of look like the eyes of someone who’s dying.”

Speaking at a lecture at the University of Technology, Sydney on Monday, McLeod said the logic behind the military commission system reminded him of the classic film Dr. Strangelove.

Perhaps the reasoning that impelled General Jack D Ripper to launch a nuclear strike against the Soviet Union in the film would sit comfortably in the strategic thought of the present-day White House.

“I can no longer sit back and allow communist infiltration, communist indoctrination, communist subversion and the international communist conspiracy to sap and impurify all of our precious bodily fluids,” Ripper said. Substitute ‘terrorist’ for ‘communist’ and its easy to imagine how Guantanamo Bay came into being.

The movie may also offer a fresh way of looking at the Supreme Court’s decision to strike down the first Military Commission. For as General Buck Turgidson offered to the US president in the ‘war room’: “Well, I, uh, don’t think it’s quite fair to condemn a whole program because of a single slip-up, sir”.