Seventy years on

Today is the seventieth anniversary of the Japanese bombing of Darwin. The event, which has never previously received much attention relative to Anzac Day (and perhaps some others), was commemorated today with a substantial (and IMO too long) ceremony in Darwin and various associated activities.

Unlike the Gallipoli landing, few tales of bravery, let alone heroism, emerged from the attack which, as many have remarked, was on a larger scale than that on Pearl Harbor a few weeks before.

Other parallels have been drawn, notably that both places were unprepared. Yes, Pearl Harbor was caught napping, but it initiated war between the USA and Japan, whereas the bombing of Darwin came several weeks into the war and a few days after the fall of Singapore, when the allies were in retreat, if not disarray, throughout.

There's not much for Australians to be proud of. Our defence strategists and politicians in the years and weeks before had failed to build up Darwin's defences, while many service people on the ground who, if even some of the stories are correct, panicked.

Does this mean that we shouldn't observe the day and, as many people especially in the Northern Territory want, to ensure that it has national recognition (though nobody I'm aware of has gone as far as suggesting it should be a public holiday)?

No. It was the first airborne attack on Australian soil, many people (perhaps more than in any other single event in our country) were killed or injured,  the full extent of the damage and casualties were concealed from the public, and, together with the other defeats and retreats of the weeks either side of it, intensified the wake up call to Australians. It also showed how reliant we were on the USA, who even then had a few fighter aircraft stationed in the area.

Today was a Sunday, so it was easier to get a good turnout to the ceremony. Whether future commemorations will, or should, be quite so lavish is a moot point. There seemed to be a slight whiff of triumphalism in some of the ancillary activities (eg artillery and machine guns being fired with apparent gusto) shown on ABC TV's detailed coverage.

We need to remember that there was very little effective resistance to the attack, just as we need to remember that the bombing was not a prelude to a Japanese invasion of, or even (as was falsely depicted in the movie Australia) an incursion into Australia. Significant as the bombing was, I believe it was,even for Australia, less significant than the fall of Singapore, where our forces suffered much higher losses - killed, wounded, POWs. But it was still important and so deserves to be commemorated in a lower key Anzac Day-style manner.

Former Muslim chastised by media

David Hicks is no longer subject to a control order.

To mark the occasion The Australian has seen fit , in today's lead editorial "Hicks can count himself fortunate", to make some comments about his situation.

As a sign of his goodwill and to fulfil his duty, Mr Hicks should tell the full story of his recruitment and training to Australian Federal Police in his exit interview. In the interests of terrorism prevention, he should not be allowed to duck this responsibility.

Judging by his court hearing, he could have much to tell about guerilla warfare, explosives, weaponry, surveillance, commando tactics, grenade and sniper training. He might also be able to cast light on terrorists' brainwashing techniques, given his view, at one point, that Osama bin Laden was a "lovely brother". Full co-operation with authorities would be the best way Mr Hicks could show his determination to start a new life.

Is this a thinly veiled threat that, unless the AFP is satisfied that Hicks has given "full co-operation", he will be liable to further restrictions? Surely there are bigger fish, even in Australia, for the anti-terrorist authorities to fry.

Worst of the worst? Not according to the prosecution

The mainstream Australian media, including The Age, the ABC and News.com.au report that Colonel Moe Davis, the former chief prosecutor of the Guantanamo Bay detainees, has said that David Hicks should never haver been charged with terrorism offences.

Extract from News.com.au:

Australian man David Hicks should never have been charged with terror offences, according to Guantanamo Bay's former chief prosecutor.Colonel Moe Davis, who oversaw the prosecution of Hicks, quit the war court last year.He testified overnight that evidence for the war crimes tribunals was obtained through prisoner abuse, and political appointees and higher-ranking officers pushed prosecutors to file charges before trial rules were even written.

Col Davis was giving evidence at a pre-trial hearing for Osama bin Laden's driver, Yemeni prisoner Salim Hamdan, in a courtroom at the remote Guantanamo naval base in Cuba.

Since the US began sending foreign captives to Guantanamo in 2002, only one case has been resolved - that of Hicks. Hicks avoided trial by pleading guilty to providing material support for terrorism and served a nine-month sentence as part of a plea negotiated by a Pentagon appointee without the chief prosecutor's involvement.

Col Davis testified that he "inherited" the Hicks case from a previous prosecutor and would not otherwise have charged him because he wanted to focus on cases serious enough to merit 20 years in prison and the Hicks case did not meet that test. He said a supposedly impartial legal adviser demanded prosecutors pursue cases where the defendant "had blood on his hands" because those would excite the public more than mundane cases against document forgers and al-Qaeda facilitators.

While he was chief prosecutor, Col Davis appeared to be a stickler for the rules. He was a vocal critic of Hicks's defence team and criticised his military lawyer, Major Michael Mori.Col Davis threatened to charge him under the Uniform Code of Military Justice with using contemptuous language towards the president, vice-president, and secretary of defence.Col Davis said Maj Mori was not playing by the rules and criticised his regular trips to Australia. He said he would not tolerate such behaviour from his own prosecutors.

“Certainly, in the US it would not be tolerated having a US marine in uniform actively inserting himself into the political process. It is very disappointing,” he said in May last year. “He doesn't seem to be held to the same standards as his brother officers.”

In an interview with ABC TV's Lateline program in March last year, Col Davis insisted the tribunal process was free from political influence and was evasive on whether abusive interrogation techniques were used on prisoners. In today's testimony, Col Davis said pressure was ramped up after "high-value" prisoners with alleged ties to the September 11 plot were moved to Guantanamo from secret CIA custody shortly before the 2006 US congressional elections and amid US presidential campaigns.

"There was that consistent theme that if we didn't get this thing rolling before the election it was going to implode," he told the court."Once you got the victim families energised and the cases rolling, whoever won the White House would have difficulty stopping the proceeding."

Chaser's war on APEC

Last night's screening of The Chaser's War on Everything screened a fuller version of the fake APEC motorcade/ Osama bin Laden stunt which so discombobulated the security services during the great Sydney lockdown last week.

The video can, at least for the time being, be downloaded from or viewed on the program website. Well worth a look.

Apart from exposing some elementary weaknesses in the security arrangements (eg why wasn't there a running sheet of motorcade details ?) , the whole stunt showed, if last night's estimated viewing audience of around 3 million is any indication, that many Australians haven't lost their sense of humour. Unfortunately most politicians didn't reflect this. Mr Howard, Mr Rudd and Mr Iemma all harrumphed as hard as they could. At least Mr Downer took it more in the spirit in which it was intended:

Foreign Minister Alexander Downer denied The Chaser team had revealed a chink in APEC security, saying as they were arrested, the system worked.

But he told an APEC news conference: "Whatever you think of the humour of The Chaser ... they were clearly not going to harm anybody in a physical way.

"They presumably were, as is the nature of their show, aiming to humiliate a lot of well-known people.

"In my particular case on this one, I managed not to see them, so it just shows how lucky you can get,'' Mr Downer said, smiling.

"The point is they were in any case arrested, so I think the security works.''

Mr Downer would recall the then US Secretary of Defense Rumsfeld's visit to Adelaide last year, about which I posted . The security arrangements then were considerable, but nowhere near as restrictive as they were for APEC in Sydney. And the Chaser team didn't attempt to test them.

More egg in US's face as court throws out cases against detainees

Not surprisingly, the local and international media have much to say about the decision by US military court judges to throw out two cases against persons detained in Guantanamo Bay.

Australian reports, including those of The Australian , The Age and the ABC report on the implications for David Hicks. His local lawyer and his father are both reported as saying that DH will not appeal , as the resolution of the issue could take longer than the balance of the sentence he is currently serving here.

US and UK reports, including the New York Times, Washington Post, L A Times, CNN, Guardian and the BBC, variously describe the Bush administration's embarrassment and explore how it might remove the egg from its face.

For a summary from an Australian perspective Leigh Sales, ABC reporter and author of Detainee 002, a very good book about the Hicks case, on tonight's PM presented a report which, like her book gives a good overview of the situation. She is emphatic about the implications for DH:

This development has no implication for David Hicks. By pleading guilty, he implicitly acknowledged he considered the military commissions fair and workable, so he has limited grounds for appeal. In any case, he only has around seven months left to serve in prison and it's unlikely any legal challenge to his detention would move faster than that.

Which is not to say that DH might not have some redress in future after serving his sentence if the whole Guantanamo structure is dismantled.

Paunch and Judy Condi

What are we to make of this?

Far be it from me to suggest that there's anything improper about this couple being seen together in public wearing matching attire, but I wonder whether Mr Downer's paunch is real, or whether it's been enhanced to give him an appearance ( or illusion?) of Churchillian / Menziean substance.

If it's real maybe he should recognise that it's a manageable health risk and do something about it.

Transfer completed nine days before deadline

David Hicks is back in Adelaide, or as the ABC aptly describes it, "back in solitary confinement". The images of his arrival shown on tonight's Channel 9 and ABC TV news (which must have been filmed with the knowledge and consent of the authorities) show little change from Guantanamo: a small figure in orange (which the newsreaders described as red - look at the videos and decide for yourself) overalls between two guards.

The local law and order brigade have come out in force. While Attorney General Ruddock on this morning's Insiders and Terry Hicks have, from their different perspectives and in their different ways, maintained a civil restraint in their comments, populist ranters like SA Deputy Premier Foley have stirred the retribution pot vigorously:

South Australian Deputy Premier Kevin Foley says Hicks should not be treated as a hero now he is home."He's cost a lot of people a lot of pain," he said."He's cost taxpayers millions of dollars and he's put his father to hell and back."

Mr Foley says he hopes Hicks uses his time in prison to reflect on his behaviour. "He should be thinking long and hard about how he is going to conduct himself and rehabilitate himself when he walks from prison," he said.

On tonight's Channel 9 news Mr Foley's grasp of English syntax (has it ever been strong?) loosened as he referred to Hicks the younger's "behaviour he has conducted" [sic], while on ABC TV News he promised that DH would be incarcerated with "mass murderers [and] former magistrates found guilty of pedophilia".

And, while Mr Foley tries to maintain his rage (and spread lies - Hicks was neither charged with nor convicted by a US military commission of "aiding and abetting terrorism"), the ABC reports that a gang armed with knives and machetes carried out nine aggravated robberies across the metropolitan area overnight.

No arrests have been reported. Mr Foley has not commented.

An intended consequence?

The Age reports that Major Michael Mori has been overlooked for promotion in the legal branch of the US Marine Corps. This is hardly surprising.

On other David Hicks-related matters Adelaide Now aka The Advertiser online reports that Hicks is likely to be returned in the next week to ten days to serve the rest of his sentence in Yatala prison. His Australian lawyer, David McLeod, left today for Guantanamo Bay to participate in this process. As he left, he delivered a serve to the state government, warning it against political interference:

...Mr McLeod said the debate over whether Hicks should be subject to a control order was not a political issue.

"It's up to the Commissioner of Federal Police to determine issues such as control orders, whether they should be obtained, and there shouldn't be any political influence in that decision," he said. "If there is, we'd have something to say about it."

At the moment I'm reading Leigh Sales' book Detainee 002: the case of David Hicks. For a review of it see here. I'll post my own comments when I've finished it.

PM looks rattled but tries to defend Vice-President Cheney who has troubles of his own at home

When even The Advertiser has, as it did today, a lead editorial "PM falls out of step with opinion"(print version)/ "Mr Howard must fall into step"(online) , stating that Prime Minister Howard "appears increasingly isolated and out of step with the electorate on issues of key community concern", this is further evidence that the public mood is changing.

On issues as diverse as Australia's continued military commitment in Iraq and Afghanistan, the detention of terror suspect David Hicks and global warming, Mr Howard has given the appearance of being inflexible and unyielding.

.....

On almost the same day Mr Howard pledged to send 70 additional military trainers to Iraq, British Prime Minister Tony Blair announced the immediate withdrawal of 1600 troops.

Mr Howard's protest that it was not a withdrawal, merely a reduction in troop numbers, was at best hollow.

The Labor states are refusing to endorse Mr Howard's $10 billion River Murray plan – the centrepiece of his Government's environment policy – Hicks remains in his cell and, to add to the Government's discomfort, Reserve Bank Governor Glenn Stevens hinted that interest rates could rise again this year.

To magnify Mr Howard's Iraq dilemma, U.S. Vice-President Dick Cheney is in Australia.

Normally the opportunity to host the U.S. vice-president would be an advantage for the incumbent government. Yet, for Mr Howard Mr Cheney's visit could not have come at a worse time.

It's far too premature to be predicting a Coalition election defeat. Mr Howard is a superb political campaigner and strategist.

But to be assured of a fifth term in office, Mr Howard's political luck and political judgment will have to change.

It's good to see at least some parts of the News Corp media (another is Tim Dunlop's Blogocracyat News.com.au) not automatically endorsing the government's position.

Speaking of News.com.au, I see that on its website it quotes Mr Howard as saying, contrary to The Advertiser's view, that Vice-President Cheney's visit here "isn't a political liability".

"It's never a political liability, ever, for the Prime Minister of Australia to have a good relationship with the president and the vice-president of the US," Mr Howard said on Seven News today.

"That is an absurd proposition, and I reject it completely."

Mr Howard said he respected Vice-President Dick Cheney even though they didn't always agree.

"People should look beyond their personal prejudices and understand how fundamental the American alliance is to the security of Australia in our own region," he said.

Mr Howard did not meet Mr Cheney at the airport last night, nor attend his major speech to the Australian American Leadership Dialogue in Sydney today. The pair will meet tomorrow.

Mr Howard's increasingly inflexible opinions have in the last two weeks made him (and, by implication Australia) look foolish. The swift and effective riposte of Senator Barack Obama, in response to a some ill judged comments by the PM (including some Beasleyesque befuddlement over dates) and his being caught napping by Mr Blair's announcement of troop reductions (and what ever you might want to call them, they are reductions) of British forces in Iraq have made Mr Howard look out of his depth.

He should also be aware that a considerable body of opinion in the USA is turning against the policies of the Bush - Cheney administration. See for example a piece by Jeffrey H Smith in The Washington Post.

Smith is a former CIA employee who now represents some Kuwaitis who are detained in Guantanamo. He says:

In November, Americans voiced their frustration with the war in Iraq and gave control of Congress to the Democrats. The voters rejected the president's swaggering, go-it-alone approach and the administration's contemptuous attitude toward the Geneva Conventions, which led to the abuses at Abu Ghraib, actions that so damaged our credibility that other nations are much less willing to cooperate in the war on terrorism. Secretary of State Condoleezza Rice, and her able legal adviser, John Bellinger, have pushed for reforms that have begun to reverse this trend -- but much more must be done....there are three things Congress should do.

First, Congress should reconsider the detainee legislation passed last fall. Last-minute changes rammed through by the White House watered down many of the bill's key provisions. On the treatment of detainees and interrogation techniques it created two standards -- one for the military and another for the CIA. The standards for the military are in an Army Field Manual, but the CIA standards are to be enumerated in a presidential executive order. Rumors suggest that the White House is struggling to develop those rules. Congress should relieve the president of that task before he makes a bad situation worse.

If Vice President Cheney has his way, a good dunking may be among the approved CIA techniques, even though "waterboarding" is prohibited by the Army Field Manual. Cheney's October remarks that dunking a detainee was " a no-brainer" were irresponsible and added to the confusion in the field (and around the world) about the rules for treatment of detainees.

It is not clear why the military and the CIA should have different standards for the treatment and interrogation of detainees. All U.S. agencies should use the techniques best able to elicit information that is vital to our security. And why should the CIA once again be asked to take risks not knowing whether, when the political winds change in Washington, its officers will be left facing charges that they violated the law?

Hearings should be held to determine which interrogation techniques have produced useful intelligence. Lawmakers should review the recent report of the government's Intelligence Science Board, which concluded that there was no scientific evidence that coercive techniques produced good intelligence. Congress should also consider the requirements of international law and develop a single standard that will apply equally to all agencies.

Second, Congress should repeal the provisions that stripped detainees at Guantanamo Bay and elsewhere of the right of habeas corpus and that instead gave them an extremely limited right to challenge their detentions. A federal appeals court, interpreting lawmakers' last effort, ruled Tuesday that detainees do not have the right to use a habeas petition to challenge the basis of their detention. The case will surely be appealed to the Supreme Court because detainees must have the right to argue to a federal judge -- not a military officer, as in the current law -- that the factual basis on which they are being held indefinitely and without criminal charges is not accurate. Detainees' right to habeas corpus could be limited, as was suggested by Sens. Arlen Specter and Patrick Leahy, to prevent frivolous lawsuits over conditions at Guantanamo. But detaining men with no hope of a fair hearing ensures that, if they weren't terrorists when they were detained, they probably will be when they are finally released.

Third, Congress should also examine the practice of "rendition," or sending detainees to countries for trial or detention where, it is alleged, they can be mistreated or tortured. Before the attacks of Sept. 11, 2001, rendition was a valuable but selectively used tool of U.S. law enforcement and intelligence agencies. Since Sept. 11 it has been used extensively, and its continued viability has been questioned. Congress should establish a solid legal footing for renditions, including measures to ensure that anyone sent to another country is not mistreated.

The administration should listen, really listen, to the American people and to those in Congress and the military who understand that adhering to international law and our core values will help us win the war on terrorism. It will take years to get out of the hole we're in, but if Congress leads and the president understands, we can begin climbing out.

If you think that Smith is a lone voice look at this New York Times editorial "American Liberty at the Precipice".

In another low moment for American justice, a federal appeals court ruled on Tuesday that detainees held at the prison camp at Guantánamo Bay, Cuba, do not have the right to be heard in court. The ruling relied on a shameful law that President Bush stampeded through Congress last fall that gives dangerously short shrift to the Constitution.

The right of prisoners to challenge their confinement — habeas corpus — is enshrined in the Constitution and is central to American liberty. Congress and the Supreme Court should act quickly and forcefully to undo the grievous damage that last fall’s law — and this week’s ruling — have done to this basic freedom.

The Supreme Court ruled last year on the jerry-built system of military tribunals that the Bush Administration established to try the Guantánamo detainees, finding it illegal. Mr. Bush responded by driving through Congress the Military Commissions Act, which presumed to deny the right of habeas corpus to any noncitizen designated as an “enemy combatant.” This frightening law raises insurmountable obstacles for prisoners to challenge their detentions. And it gives the government the power to take away habeas rights from any noncitizen living in the United States who is unfortunate enough to be labeled an enemy combatant.

The United States Court of Appeals for the District of Columbia Circuit, which rejected the detainees’ claims by a vote of 2 to 1, should have permitted the detainees to be heard in court — and it should have ruled that the law is unconstitutional.

As Judge Judith Rogers argued in a strong dissent, the Supreme Court has already rejected the argument that detainees do not have habeas rights because Guantánamo is located outside the United States. Judge Rogers also rightly noted that the Constitution limits the circumstances under which Congress can suspend habeas to “cases of Rebellion or invasion,” which is hardly the situation today. Moreover, she said, the act’s alternative provisions for review of cases are constitutionally inadequate. The Supreme Court should add this case to its docket right away and reverse it before this term ends.

Congress should not wait for the Supreme Court to act. With the Democrats now in charge, it is in a good position to pass a new law that fixes the dangerous mess it has made. Senators Patrick Leahy, Democrat of Vermont, and Arlen Specter, Republican of Pennsylvania, have introduced a bill that would repeal the provision in the Military Commissions Act that purports to obliterate the habeas corpus rights of detainees.

The Bush administration’s assault on civil liberties does not end with habeas corpus. Congress should also move quickly to pass another crucial bill, introduced by Senator Christopher Dodd, Democrat of Connecticut, that, among other steps, would once and for all outlaw the use of evidence obtained through torture.

When the Founding Fathers put habeas corpus in Article I of the Constitution, they were underscoring the vital importance to a democracy of allowing prisoners to challenge their confinement in a court of law. Much has changed since Sept. 11, but the bedrock principles of American freedom must remain.

Are our core values and the "bedrock principles of Australian freedom " that different from those of the USA ?

Fresh charges against Hicks "drafted"

Fresh charges against David Hicks have been drafted by the US Office of Military Commissions as The Age and News.com.au report. The charges are (1) attempted murder and (2) material support for terrorism.

They have to be approved formally and a hearing date set, all of which will take time, so we shouldn't expect much movement for a while, even if, in a Press Conference yesterday Prime Minister Howard has claimed that his "deadline" has been met :

JOURNALIST:

Details of the charges against David Hicks have now been released how are you responding to that?


PRIME MINISTER:

Well they are welcome. I’m glad that the charges are being laid and that the deadline I set has been met. They are very serious charges and that is why we believe they should be dealt with as soon as possible. The delay of the last five years has been very regrettable. Some of that has been due to objections by people including Mr Hicks’ advisers, but a lot of it has been due to the slow process in the United States and I am glad that it has finally come to a situation where charges are being laid. And I would encourage, in a very public way, and we’ll be doing it privately, for the trial to be brought on as soon as possible so the serious charges against Mr Hicks, and they are serious, they allege that in the full knowledge of what happened on the 11th September, he rejoined the Taliban (inaudible) involved through Al Qaeda of course in the attack on the 11th September.

JOURNALIST:

But the charge of attempted murder when it’s been acknowledged by the prosecution that he didn’t fire a gun, isn’t that extraordinary?

PRIME MINISTER:

Look you and I can’t try it, we can only observe they are serious charges, and that is why it should come on and I don’t intend to get into a debate about the substance of the allegations.

[ends]

Not everyone, for example Tim Dunlop at Blogocracy and me, agree with him.

This morning the Kelvin Thomson, the Shadow Attorney-General challenged the validity of the second charge, claiming that it is retrospective. This afternoon the PM appeared to have reverted to washing his hands of the matter:

Mr Howard says what America decides to do is a matter for them.

"I don't equate what the US is doing with the passage of a retrospective criminal law in Australia, making offences that were not criminal offences at the time David Hicks did the things he's alleged to have done, crimes when they weren't at the time," he said.

There has also been speculation that the matter could be resolved by a plea bargain. Another possible solution suggested by Neil James Executive Director of the Australia Defence Association is for Hicks to be brought back to Australia and placed under a control order:

Mr James, a former army interrogator, says everyone in the Hicks debate in Australia had lost track of the reason he was being detained in the first place - "to make sure he does not rejoin the war".

"Because of the constant delays, bungling and breathtakingly bad record in explaining their position, the US authorities have effectively forfeited the option of trying Hicks by a military commission and probably even by a standard court-martial or civil criminal trial," he said.

Releasing the Adelaide man under a control order was the most practical solution, Mr James said.

"It's a win-win situation. Hicks comes home, the Americans get off the hook, the (Australian) Government gets off the hook, the Opposition gets off the hook, the lawyers shut up. There are no losers in this option."

BTW the ADA website has a detailed (if maybe not up to date) summary of how it sees many of the legal issues relating to Hicks' status.

And of course, as Mike Steketee in yesterday's Weekend Australian reminds us, there is also the issue of Hicks' mental health to be considered.

Despite Mr Howard's claims I'm sure that we'll continue to hear more of the issues.

PS I find it interesting that of all the Australian media Andrew Bolt and Piers Akerman (the latter only on the Adelaide Now website) seem to have received the most detailed information about the charges. They both refer to, and Bolt quotes at length from, them. I'll wait to see if anyone else makes much of them.

Pig headed Alex

Foreign Minister Downer has, as News.com.au and The Age report, once again resorted to attacking the ALP for what he perceives to be its longstanding foreign policy shortcomings. This is from The Age :

"Australian Labor wants to retreat to fortress Australia," he told the the Young Liberals' federal convention in Melbourne. "Its natural instinct has always been isolationism, and its cut-and-run policy in Iraq is the latest incarnation of that tendency. It is madness to think we can retreat from this crucial battle for civilisation and hope the terrorists will leave us alone."

Arguing Australia could not leave the fight against terrorism to others, Mr Downer warned of dire consequences if the United States retreated to its own borders. "Terrorists in every part of the world, including in our own region, would be emboldened," Mr Downer said. "We would be inviting the violence ever closer to our own homes."

He said that coalition failure in Iraq would be catastrophic, leaving the country to terrorists and insurgents who would try to install a Taliban-style regime, with terrible consequences for Iraq, the region and the world.

In defending the Government's commitment to the war in Iraq, Mr Downer launched a broad attack on the "self-loathing" of the left, which he said argued the West had brought terrorism on itself and which always sought the "seemingly easy option of avoiding conflict, negotiating concessions with the enemy and hoping the threat will disappear".

"Historically the left has always looked for soft options - from appeasement of Hitler, accommodation of Communist expansionism and unilateral disarmament in the Cold War," he said.

This is at best disingenuous, at worst arrant balderdash. Most Australians with any historical knowledge will recall that the best known Australian appeaser was R G "Pig Iron Bob" Menzies, who in the 1930s insisted on selling scrap iron to the expansionist Japanese empire. And who were his most vocal opponents? The waterside workers. And their position on the political spectrum?

Mr Downer is merely President Bush's mouthpiece, except for some limited freedom of action in the South Pacific -Melanesia region: and how stable is that at the moment? All his huffing and puffing about the ALP is simply laying down a smokescreen. Unfortunately for him the winds of change are blowing his smoke away as quickly as he can produce it.

In contrast to Mr Downer's rant, Attorney General Ruddock has, as News.com.au , The Age and the ABC, report refused to ban a radical Islamic group which is, as these sources claim, advocating the establishment of a strict Islamic state with sharia law. It's hard to tell from the reports whether this is intended to be a call to jihad in Australia, or a more general statement of a medium-long term goal. On this occasion I'll follow Mr Ruddock's lead and be alert, but not alarmed.

I wonder what Mr Downer thinks of it all. His department must have provided some advice to the A-G, but has Mr D for his own political purposes (or whatever) disregarded this and blamed the ALP?

Is he any closer to being charged?

Recent developments on the David Hicks front.

Following yesterday's reply from Lex Lasry QC to (the Australian) Attorney General Ruddock's "Why he can't return" article The Age today has the case against him according to the chief prosecutor of the US Office of Military Commissions, Colonel Davis. DH's US lawyer Major Mori replies to this in a piece added to the paper's website this afternoon.

The gloves are off for the military lawyers. Col Davis has (1) asserted that DH "was a fully fledged al-Qaeda operative who took orders from Osama bin Laden, conducted surveillance on embassies and was armed to battle against coalition forces in Afghanistan after the September 11 attacks", and (2) attacked Major Mori "I'm concerned about the health of Australians because he [Mori] comes down there and he blows smoke, which can't be good for your health."

The Major has responded: "It is disappointing to hear Colonel Davis make derogatory comments attacking my integrity...When a prosecutor's case is weak, he or she often resorts to attacking the defence lawyer ...I am sure it was disappointing and shocking to Australian ministers to hear Colonel Davis say that he hoped David's five years at Guantanamo would not be taken into account if he is sentenced. "

I'd thought that this was one of the issues (another is no death penalty, but maybe even that needs to be checked) on which even the Australian government was firm.

Two ALP spokespeople, Joel Fitzgibbon (Defence) and Kelvin Thompson (Foreign Affairs) have
also increased the pressure to resolve the matter rapidly.

For his part Prime Minister Howard has stated today: "I discussed this matter with the President at some length yesterday when he spoke to me [about the revised US policy towards Iraq], and he's been left in no doubt as to the strength of feeling of the Australian Government" [that DH should be charged by the US as soon as possible].

If the Australian government is to be believed, then they and the US are increasingly at odds. In an opinion piece in today's Australian Leigh Sales, the ABC's national security correspondent, makes just this point:

Do not imagine the Government wants Hicks's repatriation. It does not. It wants him to stand trial at Guantanamo. But it is not prepared to accept more promises without results. When the FBI arrested Nazi secret agents in the US during World War II, their trials via military commission and subsequent executions took less than a month. From capture to execution, the Iraqi dictator Saddam Hussein spent two years and 17 days in custody. Hicks has now spent five years, one month and two days in prison, with no end in sight. The Pentagon must now act quickly and efficiently to fix that. It is said that the best predictor of future behaviour is past behaviour. On that basis, the Australian Government must be terrified.

The power of the "moral middle class"

Today the lead Weekend Australian editorial advocates bringing David Hicks to trial promptly.

It begins with a lot of huffing and puffing (eg " the clamour by some to claim Mr Hicks as a metaphoric indictment of everything wrong with the Howard Government, the Iraq war, George W. Bush and Australian society, is misguided.") but eventually gets to the heart of the matter, if not without some disingenuousness:

Some of the delay in bringing Mr Hicks to trial is a result of appeals by his defence team on the legitimacy of the process. The US Supreme Court has now acted to ensure any trial contains a minimum level of safeguards for Mr Hicks, including a presumption of innocence, a right to be present during the trial, a right to cross-examine prosecution witnesses, a ban on evidence obtained by torture, access to evidence and the provision of military defence counsel. He certainly could not ask for better advocacy than that offered by Major Mori.

These points noted, Mr Hicks deserves justice and he deserves it now. His day in court is long overdue. It is hard to imagine any circumstances under which it would be justified to hold a person in custody for five years without trial, even in a case as exceptional as this. Mr Howard, AFP Commissioner Mick Keelty [sic]and Australia's newly appointed director of military prosecutions, Brigadier Lyn McDade, have been right to call in recent days for Mr Hicks's prosecution to be accelerated.

While Mr Howard's "call" has been a fairly muted one, more in the nature of a whisper, at least he seems to be preparing for the possibility of shifting his ground.

The editorial concludes:

As long as his guilt remains unproven in a court of law, there will be those who will attempt to exploit his continued detention to push their own causes, clouding the real reasons why we are at war with terrorists. Mr Howard would also be mindful that in an election year, a case which has become a lightning rod for discontent among what we might call the moral middle class has the potential to backfire on his Government, particularly as it faces an opponent who has vowed to campaign on the issue of morality...The crimes that Mr Hicks has been accused of are indeed appalling, and offend our fundamental values. The magnitude of the alleged offences, however, should never outweigh the right to natural justice.

"The moral middle class". What an interesting term. Is it meant to be taken as an alternative, if a slightly less harsh sounding one, to pejorative terms such "chattering classes"? Or does it belatedly acknowledge that there are Australians who for years have felt genuinely appalled on moral grounds at our government's hypocrisy in calling for Hicks to be brought to trial in a system which is being made up on the run? I am more than willing to be counted among them.

Update 7 January


The Age website reports today that it will be at least six months before David Hicks is charged.

...Hicks' US defence lawyer, Major Michael Mori, attacked the integrity of the proposed new military commissions after the Federal Government was assured Hicks would be charged. Major Mori said he was troubled that the Government was being told Hicks would be charged, when the person who should decide that was yet to be appointed.

Federal Attorney-General Philip Ruddock said his US counterpart, Alberto Gonzales, had told him there was enough evidence to charge Hicks and he would be among the first Guantanamo detainees to be charged.

Major Mori said the assurances showed "the political fix was in" and that Hicks' case would not be independently evaluated and reviewed.

Mr Ruddock replied it was "not inappropriate to check on the progress of the matter and to receive advice as to the likely timetable for resolving issues relating to Mr Hicks".He said a trial timetable could be influenced by factors including detainees exercising their rights to challenge the process.

The website also has an an article by Mr Ruddock "Why he can't return" . It is probably as detailed a summary of the government's position as I've seen, but several flaws remain in the AG's reasoning, eg

# If the government has spent more than $300,000 on the case and there have been 17 consular visits (over five years) to Hicks, why isn't it able to confirm that his mental health is still sound?

# In attempting to distinguish between the situations of the British citizens who have been released from Guantanamo and Hicks he uses the terms "citizen" and "resident" as synonyms: he of all people given his former position as Minister for Immigration knows that this is misleading.

A Christmas message for our times

The Anglican Archbishop of Perth has, the ABC reports, accused the Prime Minister of hypocrisy over the delays in bringing David Hicks to trial (if what the US authorities propose can be described as a trial).

How many other leading citizens will have the small amount of courage need to follow his lead?

Hicks "at breaking point"

The Age reports that David Hicks is, according to his father, "at breaking point" after he recently refused to take a pre-arranged phone call.

Mr Hicks said his son was unable to communicate properly during their last telephone conversation in July this year.

He was now convinced his son was suffering severe mental problems, exacerbated by spending the past nine months in solitary confinement.

"We have been worried about David's mental state for three years," Mr Hicks said.

"This shows he's not as well as everyone says he is.

"He has probably thought 'do I need to go through this mental stress' and speak to the family.

"The Australian government says he's OK ... but they're cold, they have got no heart, they don't care about him."

According to another report in The Age the Federal government will question a decision to ban forensic psychiatrist Professor Paul Mullen from visiting Hicks at Guantanamo Bay.

Given the government's record of equivocation on all Hicks related matters I'd be surprised if the questioning was very robust. It seems that those who want to see the matter resolved are being fobbed off with bureaucratic waffle which appears to hold out a slight chance of a resolution while preserving a ruthless and immoral status quo.

There are some, such as Mirko Bagaric, who criticise people like me for focusing on David Hicks to the exclusion of the other Guantanamo detainees. I take their point, but justify my position by saying that the Hicks situation is different because he, like me, is an Australian citizen and therefore deserves the protection of our legal system. Once this has been given I'll turn my attention to the remaining detainees (and other persons who have been detained without trial).

Why do do many Australians not care?

This, not "Why is the Australian government leaving Hicks to languish at Guantanamo Bay?", is the question which Leigh Sales , writing in today's Australian, thinks David Hicks's supporters should be asking.

She makes the point that the weekend rallies did not attract much support: I'd have to agree with her about the Adelaide one. This and other examples, eg little coverage in mass circulation newspapers or commercial TV, lead her to the view that both government and opposition are "convinced the issue is of no great concern to mainstream Australia". This, she believes, is why Hicks's lawyers are now, as I posted last week taking action in the Federal Court.

Reading between her lines, I don't detect many signs of optimism, though her final paragraph is a good summary of why Australians should care more:

Regardless of what people think of Hicks and whether he is guilty or innocent, his case raises issues that matter and ought to be debated: should Australia allow a foreign country to lock up an Australian citizen for five years without proving a case against him? And is Australia prepared to sacrifice fundamental principles and values, such as the right to a speedy trial, in the name of the war on terror? The fate of Hicks as an individual is important and after five years, needs to be resolved urgently. But long after he has either been released or convicted, the broader questions will remain.

I don't doubt that Ms Sales has accurately summed up the government's position at the moment, but I wonder how long Mr Ruddock's pledge of a fair trial will hold up if the foreshadowed proceedings don't get under way soon:

Hicks would likely be charged after January 17, when new regulations for the US military commission expected to try him come into effect, Mr Ruddock said.

"We've sought assurances that there'll be a presumption of innocence, that he will know the evidence that's going to be presented against him, that he will be effectively represented in the military commission process, that there are appeals ... into the civilian court system," he said.

"We are certainly pressing the US and have received certain assurances from them that a fair trial should be possible under the scheme that they've legislated for."[Emphasis added]

This is all pretty vague. What happens if Mr R's requirements for a fair trial aren't met within the time frame? Will he or Mr Howard then ask the Americans to release Hicks, as the British and many other governments have done about their citizens who were incarcerated in Gitmo?

Fair Go For David rally

Here are some pictures of today's Fair go for David rally in Victoria Square Adelaide, which was held in 40 degree plus heat.

Charles Southwood (ex-ABC FM presenter, MC)

Kay Danes

Mem Fox

Brian Deegan (lawyer whose son was killed in 2002 Bali bombings)

Professor Leon Lack (expert on sleep deprivation)

Ahmed (Australian citizen of Iraqi origin who returned to Iraq in 2003, was detained without trial, interrogated by British and US intelligence and spent some time in Abu Ghraib prison before being released without conviction) with Steve Kenny (his lawyer who has also acted for the Hicks family).

Terry Hicks (David's father)

[All links accessed 9 December 2006]

The Road to Guantanamo

Yesterday I saw The Road to Guantanamo, a dramatised documentary which follows some English-domiciled Muslims who in 2001 travelled to Pakistan, then to Afghanistan, where they were captured, incarcerated at Guantanamo Bay and eventually released after their interrogators were unable to elicit enough information to bring them before what passes for a justice system in the war against terror.

The movie has an authentic ring to it - the depiction of the Guantanamo Bay camps looks particularly convincing and not all the guards are absolute b*stards all the time - and will inevitably remind Australian viewers of David Hicks.

The Australian government hasn't had much to say about the movie yet, though it has refused a visa to one of the characters depicted therein.

I recommend the movie highly, and not only to those for share my views.

Government re-thinking or re-fudging David Hicks?

Tim Dunlop at Blogocracy has an excellent post "Mr Howard's Bushy blind-spot" in which he summarises some recent developments in the David Hicks case and states:

Any reasonable person concerned about the war on terror would understand that a commitment to the rule of law is basic to our understanding of ourselves as a democratic nation in that fight. And yet, the Howard Government has let Mr Hicks languish in the prison at Guantanamo Bay rather than insist that the Bush Administration release him from this legal limbo.

There seem to be some indications that the government is shifting its ground a little from, for example, the view expressed by Foreign Minister Downer in July. The Senate has, at Barnaby Joyce 's urging recently passed a resolution urging that David be brought to trial quickly, and there are reports that Attorney-General Ruddock has agreed to meet Terry Hicks, , David's father. Even so I'm not expecting a quick resolution of the matter.