David Hicks is almost certain to be denied a fair trial according to the only independent Australian legal expert to attend the initial directions hearing last month in Guantanamo Bay.

The US military commission process being used to try the Australian terrorist suspect, who has been held prisoner at Guantanamo Bay without trial for more than two years, is “flawed” and a fair trial is “virtually impossible”, said a report released last week by observer Lex Lasry QC.

In the report, Lasry said the military commission proceedings being pursued against Hicks could potentially result in a “substantial miscarriage of justice”.

Former Law Council of Australia (LCA) president Bob Gotterson accepted Lasry’s recommendations and said the Australian Government must now make efforts to have Hicks tried under an independent and properly constituted judicial process.

“Lasry recommends the Law Council call on the Government to request the US to remove David Hicks from the military commission process, and either place him before a court martial, the US civilian criminal justice system or return him to Australia,” Gotterson told a press conference last week.

These remarks follow an announcement by the Minister for Foreign Affairs, Alexander Downer, and federal Attorney-General, Philip Ruddock, who said in a joint statement this month that following the appearance of Hicks before the US military commission, the Australian Government would discuss with US authorities improvements to the conduct of the military commission process.

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.

As well, there is a strong relationship between the Presiding Officer and the Appointing Officer and “several of the current members of the commission may be perceived as officers with some predisposition on the relevant issues”, he said.

This may be because they were “operationally involved in Operation Enduring Freedom in Afghanistan against, inter alia, the Taliban”, or because they were “significantly emotionally affected by the events of 11 September 2001 or because they have already formed and expressed views adverse to the interest of the detainees at Guantanamo Bay”, the report states.

According to the report, the commission includes five members who are not legally qualified. “These officers are required to resolve issues of fact as a jury would and issues of law as a judge would without any experience in doing so and without being given legal directions on which they can rely”.

Lasry states that it is not obvious to him why all the members of the commission are not officers with legal qualifications. “That would be a substantial benefit to the process”.

Major-General John Altenburg, Appointing Authority for the commission, seemed less worried by the question of legal experience. When asked about the advantages of a military commission over a court martial, Altenburg said a commission was “calculated to try only war crimes and no other types of crimes, and therefore you get the requisite experience and expertise in addressing issues of the law of armed conflict”.

Lasry, however, had his doubts: “Bearing in mind the complete lack of legal experience of at least five of the commission members in performing any duty previously involving making legal determinations this rationale for the [sic] selecting the military commission process seems absurd,” he said in his report.

Lasry was particularly concerned about the commission’s rules of evidence, with evidence deemed admissible if “in the opinion of the [commission’s] Presiding Officer . . . the evidence would have probative value to a reasonable person”. The rule is brief and unspecific, according to Lasry, who noted “there are no genuine rules of evidence and no guidance on how questions of admissibility should be dealt with”. The Presiding Officer’s ruling can be effectively overturned by a majority vote of the commission, he added. Former detainees’ allegations regarding interrogation methods at Guantanamo Bay would also call into question the admissibility of ‘confessions’ obtained from the accused, Lasry said. “The consequence is a likely unfairness that goes to the root of the fair trial issue,” the report states.

Regarding the commission’s sentencing provisions, Lasry said the “most fundamental problem” is that the crimes with which Hicks is charged do not carry specified sentences and there is only brief reference to the bare fundamentals of sentencing principle. He suggested Hicks could apparently be found guilty both of the charge of conspiracy and of the charge of attempted murder, which may both arise from the same evidence and conduct, and yet be separately convicted and punished for each.

The count of conspiracy against Hicks is so broad and so easily facilitates a conviction, Lasry added, that it arguably represents a misuse of that charge. “The use of such a charge in these circumstances may also be contrary to international law,” he said.

A further key shortcoming was the absence of an appellate process. “None of this process represents any form of genuine appeal and, indeed, the particular personnel involved admirably demonstrate the lack of independence of the process, such as it is,” Lasry concluded. “Finally, and briefly, on the topic of post-trial procedures, an acquittal will not necessarily lead to the release of David Hicks.”

LCA President Gotterson said the Australian Government must now make “strenuous efforts to ensure any proceedings under which [Hicks] might ultimately be tried take place in a properly constituted and independent court with conventional rules of evidence and a judicial appellate structure”.

“If there is insufficient evidence to place before a court martial or the US criminal justice system in relation to [Hicks], he should be released,” Gotterson said.

Having observed the preliminary hearing for Hicks on the 25 August, foreign affairs minister Downer and A-G Ruddock said Australian officials also identified a number of concerns “involving operational and procedural aspects of the conduct of the military commission process”. These included the lack of agreed rules of procedure, which it was said could lead to uncertainty for both prosecution and defence in preparing cases.

In order to ensure both Hicks and Mamdouh Habib, another Australian terrorist suspect being held at Guantanamo Bay, receive a fair trial, Ruddock said the Australian and US Governments had reached an agreement “that affirmed a number of significant safeguards including the presumption of innocence, the right to silence, the right to defence counsel... and a guarantee that the indictees would not face the death penalty.”

“The Australian Government has made its concerns known to US authorities on a number of occasions, and at the highest levels, about delays in the process,” Downer said. “With the military commission process for [Hicks] now commenced, we will continue to monitor the process closely,” he said.

However, the Government’s response to Lasry’s report was less positive. As Ruddock claimed that a military commission process was necessary to protect classified information, the LCA condemned the Government’s response, arguing it had failed in its duties towards Hicks and Habib. New Law Council president Stephen Southwood QC said Ruddock has acted with haste in rejecting the concerns raised by Lasry, concerns that were now acknowledged by the US authorities.

“Lasry’s concerns about lack of impartiality on the part of the Presiding Officer and members of the Commission have now found support with the Pentagon prosecutor, who has raised the matters in submissions to the military commission,” Southwood said.

“The Australian Government has still not produced any report of its own on the preliminary hearting and has not provided any evidence to challenge [Lasry’s] conclusions about the unfairness of the system,” he said.

Despite concessions such as the prosecution not seeking the death penalty for Hicks, Lasry said he believed “the Australian Government’s contention that it is satisfied with the fairness of the process is untenable”. He also quoted the UK’s Lord Steyn, Lord of Appeal in Ordinary, who described the military commission process as a “a preordained arbitrary rush to judgement by an irregular tribunal, which makes a mockery of justice”.

Attorney-General Philip Ruddock earlier this month said he could not rule out the use of military commissions in Australia. He said a terrorist attack on Australia might force the Government to revive military commissions.

“We are at war with people who are not donning uniforms, who do not accept the rules of engagement, who do not accept the Geneva Convention and who deliberately target civilians,” Ruddock told The Sunday Telegraph.

However, a Lawyers Weekly report (‘Ruddock not backing Hicks style trials’, 3 September 2004, p1) revealed that while Ruddock said he would not rule out the use of a military commission in this country, he also refused to rule it in.

A copy of the Lasry report is available at www.lawcouncil.asn.au.