THE LAW Council of Australia has labelled United States’ new military commission proposal, delivered on the fifth anniversary of the September 11 terrorist attacks, “rough justice” for Guantanamo Bay detainees.
The new Military Commission Bill, which US president George W Bush presented to Congress earlier in the month, provides for a commission system that still contravenes the rule of law, and cannot be expected to provide a fair trial to David Hicks, the Law Council said.
“The proposed new legislation is a political document, designed to appeal to populism in the lead-up to the mid-term elections in the United States,” Law Council president Tim Bugg said. “It contains nothing that would offer fresh hope of justice for [Hicks] and his family.”
The new Bill follows the US Supreme Court’s decision in Hamden v Rumsfeld in June that the existing system of military commission was unlawful and violated the Geneva Conventions.
Bush told Congress the Bill addressed the Hamden decision “by establishing for the first time in our nation’s history a comprehensive statutory structure for military commissions that would allow for the fair and effective prosecution of captured members of al-Qaeda and other unlawful enemy combatants”.
But according to Bugg, many of the “abhorrent aspects” of the commission process remain in the new Bill. “The proposed new system has no redeeming features whatsoever. It remains inherently unfair and contrary to the rule of law,” he said.
The legacy of the World Trade Centre attacks was ever-present in Bush’s address to Congress.
“Five years after the mass murders of 9/11, it is time for the United States to begin to prosecute captured al-Qaeda members for the serious crimes that many of them have committed against United States citizens and our allies abroad. As we provide terrorists the justice and due process that they denied their victims, we demonstrate that our nation remains committed to the rule of law,” the US president said.
Yet Bugg maintains that “those accused will still be pre-judged as terrorists who have no rights to a fair trial, and convicted persons can still be sentenced to death”.
Senior military lawyers have requested legislation based on the Uniform Code of Military Justice and the court martial system. Bugg believes the US’s excuses for not using such a system are “weak” and “clearly politically motivated”.
Bush said the commission system “tracks the courts martial procedures of the Uniform Code of Military Justice, but … departs from those procedures where they would be impracticable or inappropriate for the trial of unlawful enemy combatants captured in the midst of an ongoing armed conflict, under circumstances far different from those typically encountered by military prosecutors.”
Chief prosecutor, Air Force Col Morris Davis, expected that trials would resume in January 2007, although Bugg was sceptical this would happen.
“The Australian Government should rightly be disturbed by this Bill. Its passage would guarantee that [Hicks’] case will not be resolved in any way for several years. If that transpires, the Australian government should seek his immediate repatriation,” Bugg said.