The Australian Government claimed it did not know what the Australians would be charged with or what evidence the US had against them.

But Shadow Attorney-General Nicola Roxon said “Labor believes that the Australian Government must advocate strongly to the US that [Hicks and Habib] be formally charged so allegations against them can be tested and the men can be brought to justice”.

The Liberal Party claimed Labor had been “caught out again fudging its position on detainees in Guantanamo Bay”, and that they should know that a person cannot be prosecuted in Australia for an offence under international law unless the offence is incorporated into Australian law.

Roxon insisted that “if they have been involved in terrorist activities they should be charged and tried by a fair process”.

When US officials said late last week that terror suspects in Guantanamo Bay may still be kept in detention, even if they are found not guilty by a military tribunal, both parties remained uncommonly quiet.

Pentagon officials reportedly said that if detainees were considered a security risk they could be kept prisoner. Two approaches were offered, including that detainees were being held because they were suspected of being enemy combatants in an ongoing war. Secondly, some may be put before tribunals and accused of specific war crimes.

Unsurprised by this news, Hicks’ father said that as long as the “war on terrorism” continued, he believed his son would remain at Guantanamo Bay.

The Law Council of Australia said US Secretary of Defense Donald Rumsfeld’s justification for the ongoing detention — that they were “not common criminals, they’re enemy combatants and terrorists who are being detained for acts of war against our country” — was not acceptable.

“What Mr Rumsfeld forgets is that none of the claims against Hicks and Habib have ever been substantiated by an independent body. Instead, they are being held on the advice of the same intelligence and military agencies which advised the American and Australian governments that stockpiles of ‘weapons of mass destruction’ existed in Iraq,” said president of the Law Council Bob Gotterson.

Australians have been “shocked and outraged” at the acts of terrorism which had cost innocent people their lives, Gotterson said. But they should also be alarmed at the prospect of “justice being pre-empted by politicians who seem intent on playing the role of prosecutor, judge and jury”.

Like Roxon, Gotterson called on the Australian Government to look beyond its own political interest in dealing with this matter. He said that they should work towards securing the basic legal rights “which all Australian citizens are entitled to, irrespective of where they are detained and in what circumstances”.

The Attorney-General’s Department advised that an agreement had been reached between the US and Australia regarding Hicks and Habib and the guarantee of rights they have under a military commission order.

“I call on the government to release this information to the public and to play a more active role to ensure these men are not left in a legal no-man’s land,” said Roxon.