THE NATIONAL body representing Australia’s legal profession has questioned whether Australian Guantanamo Bay detainee David Hicks could ever receive justice under the military commission process.
The Law Council of Australia said it was relieved that charges had finally been laid against Hicks, despite its being two and a half years since he was first placed in the US detention centre in Cuba.
Hicks’ charging has taken too long, according to president of the Law Council, Bob Gotterson. “It is appalling that [Hicks] has been confined to non-reviewable detention for two and a half years and now faces trial in a system which has very serious shortcomings.”
Military commission trials leave detainees at the mercy of executive government, the Law Council said.
This allowed them to be incarcerated even if they were acquitted or served out their sentence, it said. Verdicts could only be appealed to the US president, there are no independent judges, and the rules of evidence do not apply.
The Law Council believed the military commission was an unnecessary and inferior substitute for a normal court martial, Gotterson said. “However, it is clear that this is the manner in which US authorities intend to proceed.”
The US Department of Defense announced recently that Hicks had been charged with conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy. Hicks’ military lawyer indicated publicly that Hicks would plead not guilty to the charges.
Gotterson said we should keep in mind that there was a US Supreme Court decision due in “a matter of weeks” in a case brought by Hicks and other detainees. This decision, Gotterson claimed, “could open the way to challenge the legality of their detention before a military commission trial even proceeds”.
Shadow Attorney-General Nicola Roxon said Labor welcomed the charges being laid against Hicks. However, she urged the Australian Government to “actively ensure that the trial process is fair”.
Labour has maintained that if Hicks has committed a crime, then he should be brought to justice, Roxon told media. However, the party objected to the lengthy detention without charge of Australian citizens.
The Government needed to ensure that the process from now on was open, independent and met the proper standards of criminal justice, Roxon said.
“The Government now has a responsibility to ensure that [Hicks] receives a fair trial, and uses more pressure than it has to date to guarantee Australian citizens fair and just processes,” Roxon stated. “Australia should expect from its closest ally that the trial will be conducted fairly.”