Ray Fulcher, Melbourne
David Hicks' US military lawyer Major Mike Mori told a packed audience at Melbourne University law school on April 6 that Hicks' trial was "politically motivated". Mori was delivering the law school's 2006 Alumni lecture, titled "Why David Hicks will not receive a fair trial come his day in court".
Mori cited the lack of independence from the US government of the military commissions set up to try Hicks and others imprisoned at the US naval base at Guantanamo Bay as a major reason the hearings will amount to little more than "show trials".
He argued that defendants face a situation where those who fought the war against them have set up the justice system, created the offences they will be charged with and will now prosecute them under rules they have established themselves.
He said that in the face of worldwide criticisms of the process there had been cosmetic changes — such as the prosecutors and "judges" no longer sitting together. The Bush administration also swore in a four-member appeals panel. However, according to Mori, one of those sworn in has already said that he believes that detainees are not protected by the international laws of war and another is a close associate of US war secretary Donald Rumsfeld.
There is also a lack of fundamental trial protections. Although some of the "formalities" are observed, such as the right to silence, they are basically irrelevant given that the military has been able to "interrogate" the detainees for years without them having any right to silence.
The usual rules of evidence are not observed by the commissions and much that a civilian court or a military court-martial would not allow can be admitted. For instance, sworn evidence given by a witness in an unrelated trial can be used against a detainee without them being able to question or test its veracity.
The prosecution can also declare anything "protected information" and it cannot then be called in the detainee's defence.
Mori also questioned the "information" gathered during the interrogation of detainees. It is normal practice to record such interrogations and keep records of the information provided — for intelligence and legal purposes. "None of the interrogations of Guantanamo detainees have been recorded", said Mori. He added that, had they been recorded, they could have been brought as evidence for the defence depending on how they were conducted and what was said in them — and that is why they weren't recorded.
The prosecution has created 33 brand new offences to charge the detainees with. "They were written by the first chief prosecutor", said Mori. So the prosecution not only sets up the system to try the detainees, but acts as legislators in creating new offences.
"I've asked what law applies to these commissions, but I still don't know — the presiding officer won't say." The prosecution claims the offences are derived from the laws of armed conflict, but Mori pointed out that some of the charges, such as conspiracy, are not war crimes.
Mori also pointed to the selective enforcement of these "laws". They don't apply to US citizens. He said that recently a US citizen had been put on trial in Peru charged with terrorism and was facing a similar military commission. "The US government put pressure on Peru until the case was transferred to a civilian jurisdiction, which tells me the US don't support military commissions."
Mori also mocked the category of "unlawful combatants". He showed a series of slides of Taliban fighters dressed in "civilian clothing", then US military, CIA and Afghan "allies" also in civilian garb fighting in Afghanistan and asked: "Who is the unlawful combatant?" He showed a slide of a Northern Alliance soldier beating a prisoner and remarked: "This guy is committing more of a war crime than anything David has been charged with."
From Green Left Weekly, April 12, 2006.
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