The US Supreme Court’s finding that the military commission process is unlawful just reaffirms what the Australian legal profession has been saying for years. Kate Gibbs reports
THE US Supreme Court’s findings last week that the military commission process is unlawful is proof that lawyers’ views about the trial of Guantanamo Bay detainee David Hicks were accurate, according to the peak body representing the national legal profession.
“The Law Council has been highly critical of the military commission system from the outset. Now our criticism has been vindicated by the highest court in the United States,” said newly appointed Law Council of Australia (LCA) president Tim Bugg.
“The Supreme Court’s ruling that the military commission structure and procedure violates basic principles of military and international law is a win for justice,” he said.
The judgement by the US Supreme Court was reached in the case of Yemeni detainee Salim Ahmed Hamdan, whose lawyers also challenged the validity of the military commission charges against him. LCA president Bugg said this would have ramifications for Hicks.
In its ruling, the Court said: “Whether or not the government has charged Hamdan with an offence against the law of war, cognisable by a military commission, the commission lacks power to proceed,” the Justices said.
“The procedures adopted to try Hamdan also violate the Geneva Conventions.” The ruling does not demand the release of prisoners held at Guantanamo, but gives the administration an opportunity to find alternatives methods of trying those held.”
The Law Council of Australia has for a long time claimed that the military commission process does not provide fundamental safeguards to justice.
In September 2004, Law Council of Australia observer Lex Lasry QC argued in the a report that the US military commission process being used to try the Australian terrorist suspect, who had been held prisoner at Guantanamo Bay without trial for more than two years at that point, was “flawed” and claimed that fair trial is “virtually impossible”.
In the report, Lasry said the military commission proceedings being pursued against Hicks could potentially result in a “substantial miscarriage of justice”.
Lasry was damning of the military commission trial process, which he said is “not independent in any sense that would generate confidence in its impartiality”. He explained that this is because the commission represents a process created and exclusively controlled by the US Government.
The Supreme Court has criticised the fact that detainees would not get to see or hear the evidence against them and that the rules about the admissibility of evidence were unfairly wide, Bugg said.
“A US military commission trial involving [Hicks], or any Guantanamo Bay detainee for that matter, would have been a complete and utter travesty of justice. It would have placed him at the mercy of a system widely regarded as unfair, rigged and flawed. It was a process controlled by the Pentagon, which acted as gaoler, judge, jury, prosecutor and appeal court,” said Bugg.
“The constantly changing military commission process has been heavily criticised by legal experts from both Australia and abroad,” Bugg has previously commented. “Even the United States’ own military lawyers have been scathing in their opinion of the system’s ability to deliver justice.” In Australia, he added, a senior army officer called recently for the military commission trials to be “abandoned” altogether.
In a letter to Lawyers Weekly, former Law Council president John North said that it is time the Federal Government took responsibility for Hicks, and face its responsibilities. “Despite pleas from organisations such as the Law Council of Australia for [Hicks’] case to be resolved expeditiously and fairly, the Federal Government has continued to bury its head in the sand over the issue.
So ineffective has his own Government been, Hicks has in recent months been forced to turn to Britain for assistance in resolving his lawful status,” North said.
While it claims to have no view on the innocence or guilt of Hicks, the Law Council said that the real issue is the length of time he has been forced to spend in “legal limbo”.
“After spending so long behind the razor wire in Cuba, it is simply not possible for [Hicks] to receive a fair trial, even in a properly constituted court, let alone a deeply flawed military commission.”
Shadow Attorney General Nicola Roxon urged the Government last week to take this opportunity to argue for a fair trail for the Australian detainee. She said Prime Minister John Howard and US President George Bush “got it wrong” on the Military Commissions. “They aren’t fair, they aren’t lawful and they have been scuttled by the US Supreme Court.”
The Australian Government has said that it had faith in the military commission process, said Bugg. He said he presumed that the Government had no faith in the presumption of innocence. “Their stance has clearly put political considerations ahead of principle and that has been obvious for a long time.”