BY DALE MILLS
What do you call a trial in which, even if found not guilty, you can end up in solitary confinement for the rest of your life? According to Attorney-General Daryl Williams, one in which "all the fundamental guarantees of the US and Australian criminal justice systems exist according ... to internationally accepted standards".
Williams announced on July 4 that Adelaide-born David Hicks is "eligible" for a US-run special military trial. Hicks is held incommunicado on Camp X-ray, in the US-occupied Guantanamo Bay in Cuba. The US Pentagon has designated six detainees "eligible" for military trial, not including the other Australian citizen in Camp X-ray, Mamdouh Habib, but including the two British detainees.
On July 19, the US government announced that the trials would be suspended, pending discussions with the British and Australian governments. While Britain's attorney-general will attend, Williams will merely send a embassy staff.
Hicks was detained in November 2001, accused of fighting for the Taliban against the US-backed Northern Alliance in Afghanistan. It's impossible to say whether this is true, because he has had no trial.
But even if it is true: it is not a breach of Australian law. The US administration has admitted it is not a breach of US law.
On July 8, Australian PM John Howard told ABC radio that Hicks had "admitted it, that he trained with the Taliban". If so, this is the first time that this admission has been made public. If Howard's claim is based on something Hicks said to his interrogators, it is inadmissible evidence and Howard is prejudicing Hicks' trial.
Hicks' trial bears little resemblance to a US or Australian civil trial. He will not have access to an independent judiciary. There is no jury. There is no appeal. The normal rules of evidence in a criminal trial do not apply. Only two of the three military officers need to find him guilty. What officer would jeopardise a good career by acquitting him?
As commander-in-chief of the US armed forces, US President George Bush can appoint any military officers he likes to the bench that will decide Hicks' fate. They can sentence him to death. And if they don't, Bush can take over and decide the sentence.
Surreally, even if acquitted, Hicks can still be detained for the rest of his natural life as an "enemy combatant" in Camp X-ray, where he can be denied access to relatives, friends, lawyers, newspapers and media from the outside world.
According to US civil rights lawyer Joe Margulies, who is working on his behalf, Hicks probably still does not know where he is. The psychological suffering induced by such solitary confinement is unimaginable. To date, 34 people in Camp X-ray have attempted suicide.
Even if detained for the rest of his life, Hicks is not protected by the Geneva Convention on the treatment of prisoners of war. The US has decided, defying overwhelming international legal opinion, that those they captured during the war in Afghanistan were not soldiers, nor civilians — subject not to civil law nor to the convention.
Only non-US citizens have been denied these rights. US citizens, fortunately for them, are protected by the US constitution.
Human Rights Watch spokesperson Jamie Fellner has said that the US government has institutionalised two types of accused: "In essence, the US has said it's OK to give second-class justice to non-citizens."
If it were not the US government perpetrating it, the treatment Hicks has suffered would be described as an international kidnapping, and a "show trial".
Even if Hicks is allowed independent lawyers — which is doubtful — such lawyers will not be allowed private communication with Hicks.
Defence lawyers will not have access to documents and witnesses unless they first inform the government that they will be using them. Hicks' Adelaide-based lawyer Franco Camatta was quoted in the July 7 Advertiser describing this rule as "unbelievable". He said the process was a "mockery of justice and we can give [Hicks] no certainty that he will get a fair trial".
Information leaked to the corporate media indicated that the US administration was willing to release Hicks to Australian authorities earlier this year, but the Coalition government didn't want to allow him back. As he had clearly committed no crime under Australian law, his lawyers would have easily obtained a court order to demand his immediate release from custody.
The Pentagon is refusing to clarify whether the death penalty could apply, or whether Hicks knows he is to be tried, whether the trial will be public.
The July 8 Sydney Morning Herald quoted Australian Lawyers for Human Rights president Simon Rice describing the denial of normal legal advice as "another step in the continuing breaches of Mr Hicks's human rights". This included UN guidelines requiring member states to ensure lawyer-client confidentiality. There is a ban on non-US lawyers representing Hicks.
It is not just civil-rights lawyers who are concerned about the show trials. The British foreign office has expressed its "strong reservation" about the Britons' trials. Sydney Morning Herald columnist Adele Horin reported on July 11 that a former conservative minister, Douglass Hogg QC, described the trials as "wrong, potentially unjust and damaging to America's reputation". From the Australian government, however, there has been nothing but puppy-dog enthusiasm for Washington.
Former Australian governor-general Sir William Deane, however, has criticised the Coalition government's collusion with the US authorities in the detention and trial of Hicks. Deane is a former Australian High Court judge.
Liberal and former prime minister Malcolm Fraser wrote in an opinion piece published in Fairfax newspapers on July 14 that the process was "a second class trial". He described the current US government as a "fundamentalist regime" and said that "the US is not prepared to comply with international law".
There is also opposition within the US. The National Defence Lawyers Association has warned its members against representing Hicks or anyone that Bush has indicated is ready for a military tribunal, for fear of adding legitimacy to such an abuse of process.
The toll on Hicks' family can only be imagined. His step-mother, Beverley Hicks, told the July 7 Advertiser: "I think it is absolutely disgusting. They are taking away everybody's rights." Hicks' father Terry is tracing his son's steps in Pakistan in the hope that he can find evidence to support him.
The US ambassador to Australia, Tom Schieffer, has not ruled out execution when Hicks is — almost certainly — found guilty by this show trial. It would be foolish to assume that Bush won't allow Hicks to be executed.
Bush and his brother held the record for the largest number of executions carried out under state governors.
Perhaps the last word should go to lawyer, Major John Smith, of the American Office of Military Commissions, commenting on the difference between the special military tribunals and the normal law. "It is not a lesser form of justice", he said, with the irony of his statement completely escaping him, "it's a different form".
From Green Left Weekly, July 23, 2003.
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