Trial and record of the accused Hicks (Australian held at Guantanamo Bay)

The Australian ^ | 6th August 2005 | David Nason and others

[naturalman1975]

TRUTH in the David Hicks affair remains as elusive as ever after fresh allegations this week from inside the US military that the Guantanamo Bay commissions are so seriously flawed that a fair trial is impossible.

The most damaging blows yet to the commissions -- still supported by the Howard Government -- came from three US Air Force prosecutors involved in the trials who have quit the investigation in protest.

One, John Carr, said the process appeared to have been rigged and that the first four cases -- including Hicks -- had been been "handpicked" and would not be acquitted.

Although the Pentagon denied the claim, it has eroded the credibility of the military commissions.

Australia's former war crimes prosecutor Greg James warned yesterday: "We have a name for a political system that embraces trials of this sort. We call it tyranny."

Yet failure of the trial system to produce a credible result will also deny Australians an opportunity to learn the truth about Hicks, and how a young Adelaide man came to train with terrorists and despise the West.

Much remains unknown about Hicks's past, but he held disturbing views. In the film The President Versus David Hicks, the Australian tells his family in letters about his training in Pakistan and Afghanistan.

The Australian's Imre Salusinszky, in reviewing the film, detailed some of the troubling material. In Hicks's words, he says he wants to "go fighting in the way of God against the friends of Satan".

Talking of his life, he says he has "one month learning, then one month fighting, then keep changing".

His training, his letters say, aimed to ensure "the Western-Jewish domination is finished, so we live under Muslim law again".

The letters also quote him attacking the Jewish plots to divide Muslims and turn them against Osama bin Laden. He talks of "the Jewish propaganda war machine" and the "Washington-Jewish domination".

Hicks is accused of training and fighting with a trio of terrorist groups after heading to Albania in 1999, where the US claims he joined the Kosovo Liberation Army, fighting on behalf of Albanian Muslims.

Later that year he allegedly went to Pakistan, where the next year he joined Lashkar-e-Tayyaba, known for its attacks on India, Jews and Americans. It was via LET that he allegedly went to an al-Qa'ida training camp, where he met Osama bin Laden and helped translate training manuals from Arabic to English.

Specifically he is alleged to have chosen to join al-Qa'ida fighters at Kandahar airport after the September 11, 2001, attacks.

After that, allegedly he joined others, including American John Walker Lindh, in combat against the US-led coalition during its invasion of Afghanistan -- which suggests Lindh could be a witness against him.

But racist views are not enough to convict a man of terrorism, and they offer an incomplete picture of Hicks.

The hope must be that a full test of the evidence against him, in a proper tribunal, would offer more.

Hicks, who turns 30 this weekend, is charged with conspiracy, attempted murder and aiding the enemy. He allegedly trained in al-Qa'ida camps in Afghanistan, helped guard a Taliban tank at Kandahar airport and joined Taliban forces in northern Afghanistan with the intention of fighting against US-led forces.

However, from the start, criticism of the military justice model set up by the Pentagon to try Hicks and the other alleged terrorists held at the US naval prison in Cuba has been prolific, from conservatives and liberals alike.

Almost from the day Hicks was captured by anti-Taliban forces in Afghanistan in January 2002 and handed over to US military authorities, there have been questions raised about the humanity of his confinement, the length of time he was held without charges being laid, the conduct of his interrogations and the evolution of a trial process that has seemed to undermine many of the rights of the accused that Australians accept as the norm.

But it has taken this week's revelations -- first aired on the ABC -- that three USAF prosecutors involved in the military commission thought it was a fix and had quit in protest, for people to really sit up and start taking notice.

Two of the prosecutors, Robert Preston and Carr, put their concerns in writing.

Preston emailed a supervisor saying the trial process was perpetrating a fraud on the American public and that the cases being tried -- including that of Hicks -- were "insignificant at best".

His most serious allegation was a claim the chief prosecutor had repeatedly advised his junior staff that the military panel to hear the first four cases would be "handpicked" and "will not acquit these detainees".

In the explosion of legal outrage that followed, the Law Council of Australia and the head of Australia's military bar, Captain Paul Willee QC, were among those demanding the Hicks case should be heard either in a civilian court or by a proper military court martial.

According to Willee: "If what has been said in the emails that we have seen is true, then it breaches every single precept of natural law and justice in the criminal context."

But the Australian Government has remained unmoved. This week Prime Minister John Howard, Foreign Minister Alexander Downer and Attorney-General Philip Ruddock all insisted that Hicks would get a fair trial before the military commission, their confidence the result of US assurances that the claims of Carr and Preston had been fully investigated by the Inspector-General of the US Defence Department.

According to Downer on ABC television's The 7.30 Report, "the investigation revealed that there were personnel issues which apparently -- which aren't really any of our business -- but there were personality issues, personnel issues, which had led to these expressions of view coming from these two prosecutors".

Leaving aside the obvious absence of an independent review, it remains unclear just how much effort the Australian Government put into satisfying itself that Hicks will receive justice.

No one in Canberra or Washington was yesterday prepared to say whether any Australian politician or official had asked for and read the Inspector-General's crucial report. Nor could anyone provide any detail about the personality clashes it identifies that apparently explain everything.

For Josh Dratel, the New York attorney working as pro bono lead counsel for Hicks, and his US Marines co-counsel Mike Mori, the attitude of the Howard Government remains as frustrating as it is baffling. "How much evidence does the Australian Government need for it to come to a different conclusion?" Dratel asked yesterday.

Mori says he just can't understand why the Howard Government would not want to fully reassess the military commission process in the face of an allegation that an Australian citizen might face a rigged trial.

Former war crimes prosecutor James is less concerned about this, saying the 16 months since the Carr-Preston allegation were made is a long time and that changes to the military commission process addressing their concerns may well have occurred. But other aspects, such as the charges Hicks faces and the rules of evidence that will be used at his trial, worry him greatly.

According to Dratel, all the evidence to be used against him at trial will be from US military interrogators reading from reports of their interrogations of Guantanamo Bay prisoners. Apart from testimony relating to interrogations of Hicks, it will be hearsay, which would be disallowed in a civil court but would stand under the rules of the military commission.

James says such evidence will fail to meet basic Australian standards in the Evidence Act or in common law. It would also fail the tests imposed by the International Criminal Court in the war crimes tribunal for the former Yugoslavia and by the international military tribunal at Nuremberg 60 years ago. "Even a Nazi would not face a military tribunal like this," James says.

Mori this week indicated the defence would try to have all the hearsay evidence ruled inadmissible at the start of the trial, along with any testimony related to interrogations of Hicks that were unrecorded and any statements from witnesses unavailable to the defence for cross-examination. But Mori admits that the rules of the commission were designed to "let everything in".