31 March 2007

"Worst of the worst" sentenced to 9 months' imprisonment and 12 months' gagging

To be worst,
The lowest and most dejected thing of fortune,
Stands still in esperance, lives not in fear:
The lamentable change is from the best;
...the worst is not
So long as we can say 'This is the worst.'

- Edgar
King Lear Act 4, Scene 1

David Hicks, who has reportedly been described by some in some high places as "the worst of the worst", has been sentenced to nine months imprisonment, following a plea bargain and collateral negotiations in a US Military Commission.

There are some strings attached to the sentence, not least that he is forbidden to speak to the media for 12 months and that he has agreed not to pursue any allegations that the US authorities abused him. The head sentence is seven years, of which six years and three months has been suspended, apparently as part of the plea bargain. No discount has been given for the five years and four months which he has already spent confined in Guantanamo Bay.

For a selection of media reports see the Australian sites News.com.au (check out Tim Dunlop's Blogocracy post while you're there),
ABC Online, SBS News, The Age and, from the rest of the world, the BBC , Al jazeera , CNN (includes link to a video interview with Tim Bugg of the Law Council of Australia), Reuters, The Guardian , Telegraph.co.uk, The Washington Post , and The Economist.

The Economist report "Justice Shackled", published after the plea but before the verdict, makes some good comments:

The Pentagon will be relieved that the tribunals have started to show results after five years of controversy over the status of “enemy combatants”, claims of torture, the admissibility of forced confessions and a Supreme Court ruling last year that halted an earlier version of the tribunals. Yet the Hicks case is hardly an impressive start for America's offshore justice.

Many in Australia regard Mr Hicks as more of a lost soul than a dangerous terrorist (see article). Indeed, his charge sheet portrays him as little more than an al-Qaeda foot-soldier, and a poor one at that. His jihadi CV is pitiful compared with the evidence being given by some of the 14 “high value detainees” belatedly brought to Guantánamo from CIA secret prisons in September.

Where to from here? Prime Minister Howard and Foreign Minister Downer (who as recently as three days ago didn't reject the "worst of the worst" tag) have come out dissembling but they haven't, at least as far as I'm concerned, confronted the major flaws in the process, which Julian Burnside QC succinctly enumerated before the hearing :

The “trial” will have at least three distinctive features:
  1. it will be dealing with offences which did not exist at the time of the acts in question;

  2. it will receive hearsay evidence;

  3. it will receive evidence obtained by coercion.

[For more discussion of some key legal principles of the case see the transcripts of the ABC RN radio programs featuring Burnside which were broadcast earlier this month here and here.]

Despite the apparent tightness of the settlement, eg no media comment by Hicks for 12 months, I'd like to know how enforceable all the provisions are, and, moreover, who will do the enforcing. What is its precise status in Australian law? Have Mr Howard/ Mr Downer/ Mr Ruddock by decree or something similar imported some US "law" into Australian law? If so, what happens if the US Supreme Court rules that the current iteration of the military commissions are unlawful?

We have not, I'm sure, heard the last of these matters, even if, as Messrs Howard, Downer and Ruddock would doubtless wish there is some lessening of public interest in the matter.

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