THE LAW COUNCIL of Australia has applauded statements made by David Hicks’ US military lawyer Major Michael Mori. Adamant that Hicks will not receive a fair trial under a US military commission, Major Mori’s concerns have added fuel to the Law Council’s fight for Hicks, which includes a call for a fair and just trial in the US by either a civilian court or a court martial.
Hicks is earmarked to be among the first batch of detainees to face a US military tribunal, following his capture among Taliban forces in Afghanistan in 2001. If charged and brought to trial, he will be granted direct access to his Australian lawyer, allowed phone calls to his family, and have his trials monitored by independent legal experts.
Law Council president Bob Gotterson QC argued that Major Mori’s claims supported his own views on military commissions. “A military commission is different from a regular court,” he said.
Speaking to Lawyers Weekly, Gotterson stressed the differences between what he regards as the more fair civilian courts or court martials, and the US military commission. “In civilian courts and court martials, the tribunal is independent of the executive government that might be seen as having a vested interest in a conviction. Also, communications between the accused and his legal representatives are privileged, unlike in a military commission,” he explained.
Gotterson spoke of other problems with military commissions. “There are no independent judges — the final decision is subject to the US president — the rules of evidence do not apply, and detainees are at the mercy of the military, which has the power to keep them incarcerated even if they are acquitted or serve out their sentence.”
Hicks, 28, has been held by the US at Guantanamo Bay in Cuba without charge for two years.
Arguing there had been a “legal de-evolution” caused by military commissions, Gotterson explained his hopes for the trial process. “The US and Australia should work jointly and constructively to ensure there is a fair and just trial process. The Law Council has consistently condemned military commissions,” he said.
Considering also Major Mori’s concerns that Hicks’ health had deteriorated, Gotterson said the US government had a responsibility to expedite the case. He noted this might already have been achieved had “normal established legal processes, such as a court martial … been followed, instead of forming these novel military commissions”.
Gotterson noted “one could make the observation that in light of Major Mori’s comments there must be growing doubt within the US legal community about the fairness of the military commission procedure”.
Despite the Law Council’s concerns, the Australian government said it believes the military commissions will be transparent and fair. In a trip to the US last year, Justice Minister Chris Ellison said he would focus on “practical aspects” relating to the trial. It resulted in several concessions from the US on Hicks’ trial. Firstly, it was determined that he would not receive the death penalty and secondly, that any sentence would likely be served in an Australian prison.
Gotterson said Mori’s assertions that a military commission trial would be an unjust one for Hicks left the Australian government’s faith in the system open to question. “I am not sure what the Australian government’s position will be once it has had the opportunity to reflect upon and fully digest Mori’s criticisms.”