Adelaide backpacker David Hicks will be arraigned before an illegally constituted military tribunal at the Guantanamo Bay concentration camp on March 20 and face the retrospective and ill-defined charge of "material support for terrorism".
Because the Guantanamo Bay camp, where Hicks has been held for over five years, is on Cuban territory illegally held by the US military, the process under which he is being tried is subject to the law of neither the US nor any other country.
The development was announced on March 8 by PM John Howard, who proudly claimed the outcome as a victory for Australian diplomacy.
The military commission system was ruled unconstitutional by the US Supreme Court in June 2006 because of violations of the Geneva Conventions. But it was retrospectively sanctioned by the Military Commissions Act, which removed any judicial oversight by US courts. Under its rules of evidence, not only are confessions extracted from Hicks under torture admissable, so is hearsay from unidentified witnesses that may have also been obtained by torture. The charge against Hicks, which carries a possible life sentence, relates to allegations of activity in Afghanistan that, if true, would not have been breaking the law of any country at the time.
Announcing the decision by US authorities in a March 8 interview with Southern Cross Radio, Howard commented: "It does mean that they're serious about getting on with it, I do think this is a result of the representations I've made to both the president and the vice-president."
On the same day, the Federal Court in Sydney rejected attempts by government lawyers to prevent the court from hearing a case being brought by Hicks's supporters that is attempting to force the government to request US authorities release and repatriate Hicks. The US has agreed to such requests from governments of other allies such as Britain.
The government's refusal to take the popular step of obtaining Hicks's release is part of its agenda to hype up the "Islamic terror" threat as cover for attacking human rights. Australian "anti-terror" laws mirror the US military commissions system in sanctioning abuse, removing transparency and oversight, lowering standards of evidence and reversing the burden of proof.
According to Rob Stary, lawyer for the 13 Melbourne Muslim men known as the "Barwon 13", the conditions his clients are being held in are in some ways worse than those at Guantanamo Bay. "Even in Guantanamo Bay, detainees have the right of common prayer. We don't have that in Melbourne", he told Green Left Weekly. He explained that Barwon's Acacia Unit, where the 13 have been held for 10-13 months, used a form of solitary confinement developed at Guantanamo Bay euphemistically called "individual case management".
Under this regime, prisoners are entitled to be out of their cells for up to six hours a day with one other prisoner from the unit. "They are not permitted contact visits with any other adult. They can see their children for one hour a month. [The children] literally go from one side of a glass box to the other. Most of [the detainees] don't like their kids coming to visit because it is such a traumatic episode."
They have been charged with being members of, and providing financial support to, an organisation involved in the fostering of a terrorist act. However, they are not charged with belonging to a specifically proscribed group, but to what Stary decribed as "an amorphous organisation" that only exists to the extent that the defendents knew each other. "There was not much of an identifiable group, but they have formed a great bond in prison since
their arrest", he said.
The prosecution tried to demonstrate a link between the Barwon 13 and the group of Muslims currently appearing before a Sydney court under the "anti-terror" laws. Stary described this as "tenuous" . "They have also been charged with possession of a 'thing'. Earlier we thought this 'thing' was a computer, but now it seems to be literature and videos."
There was "no demonstrated risk" that the accused were threatening any actual act of terrorism. Rather they are accused of having "talked the talk", sharing views in private conversations about political violence that have been intercepted by the authorities. Stary explained that the "anti-terror" laws were broad enough to criminalise approval of the well-known quotation from Mao Tse Tung that power comes from the barrel of a gun, or "if you said that the Iraqi people have a right to expel foreign troops from their soil".