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.

No more control orders for David Hicks

Following an online video request from David Hicks posted on the Get Up Australia website, the Australian Federal Police will not seek an extension of the control order on David Hicks. This is a welcome and overdue move.

News.com.au reports

Former attorney-general Philip Ruddock - the man many hold responsible for Mr Hicks' long incarceration at Guantanamo Bay - said he had no problem with the decision not to renew the control order.
"I'd have no problem with him living in my street," Mr Ruddock told Sky News.

I wonder how many of the others who were so strident in their insistence for the harsh control order imposed last year, eg Mr Rann, Mr Downer, now think likewise.

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."

Observations on the release of David Hicks

David Hicks was released from Yatala prison just over a week ago. The media interest in his whereabouts and various other things, including whether he should apologise to the Australian people, has been intense for a few days (perhaps more intense than it would have been had it taken place outside the normally quiet holiday season).

The Advertiser sent a reporter to locate where Hicks was staying, which he duly did and was rewarded with a photo (on the front page from memory) of him knocking on the door of the house.

A selection of other material I've noted recently:

# An editorial in The Advertiser on 4 January which was more even-handed than most of the rest of the media treatment:

Questions linger in Hicks affair

ANOTHER chapter in the public debate over David Hicks' involvement with al-Qaida and subsequent imprisonment has drawn to a close.

Hicks has had fewer than a handful of opportunities to make public comment but has chosen to remain silent since his release from Yatala Labour Prison last weekend.

Perhaps this is understandable, given the strict conditions governing his release, which include limits on speaking publicly.

However, this leaves questions unanswered on both sides of this important debate.

Some relate to the injustice of his long detention without trial – indeed the validity of that trial – and the conditions in which he was held at Guantanamo Bay.

Others questions relate to the level of his involvement with al-Qaida and activities in Afghanistan, when that country was governed by a murderous, misogynistic and anti-democratic regime.

Given the secretive nature of the "war on terror", perhaps these questions will be answered only when, or if, U.S. documents are declassified.

Hicks might choose to reveal more by finding loopholes in laws preventing him profiting from telling his story.

It would be unfortunate if he were seen to profit in any way, even though many of his supporters might believe he is entitled to compensation.

Whatever the case, it seems key questions about one of the most important issues of our time – terrorism and the fight to prevent it – will remain unanswered for now.

# Tim Dunlop at Blogocracy qualifying his previous support to some degree

# The ABC website running a poll asking whether Hicks should apologise (with some interesting alternative responses):

Should David Hicks make an apology to the Australian people?

	Yes, at best he caused immense trouble through his actions and at worst intended harm to his own society.
	No, the whole affair should be allowed to subside and Hicks should get on with his life.
	The Australian government should instead apologise to him for the handling of his case.

Interest seems to have abated over the last few days, a fact noted by Michael Coulter's Postscript in today's Sunday Age (p14, not online):

Last week, as Hicks savoured his first taste of freedom since 2001, only eight readers (four supportive, four substantially less so) were motivated to put their thoughts in writing.

Perhaps it's that people cared more deeply about the issue of natural justice (the five years of detention without trial or charge) than about the man himself. You rather suspect that if he'd been whacked with a five-year jail term after a proper and appropriate trial, one in which evidence was actually heard and contested, he wouldn't have received much sympathy.

Sadly, the dominant impression left by the whole affair is one of mistrust - of the system that created Guantanamo Bay, of the Australian government that allowed one of its citizens to rot there, and of Hicks himself, because we still don't feel we know all the facts. It's been an ugly episode , and one we'd do well to remember.

I find it bizarre that Coulter implies that a five year term in (presumably) an Australian prison after a sentence imposed by (presumably) an Australian court applying (presumably) Australian law would have cost Hicks much of his support. There are too many hypotheticals here.

On the other hand I agree with his final paragraph. This is why I'll still be interested in the fate of the man (eg will the control order be modified or removed over time?) as well as in the general principle that all Australians should be subject to the rule of law.

Varieties of Australian justice #2

Two developments today: a federal magistrate has, as widely expected placed David Hicks under a control order, and the full bench of the Federal Court has allowed Dr Haneef's appeal against the cancellation of his visa by former Immigration Minister Andrews.

The Hicks case was based upon evidence from his pre-Guantanamo Bay detention, which raises the question of whether anyone accused of terrorism, or convicted by however shonky a tribunal, can ever clear their name.

I find it hard to believe that the conditions, eg reporting to the police three times a week, only having one email account (!) and a midnight to dawn curfew will remain in force for too long (perhaps for the one year duration of this control order). If they do then I'd expect to see more recent evidence tendered showing that the leopard of 2000 has not changed his spots despite the time he spent in detention.

When the going gets tough, does Get Up get going?

The Australian yesterday ran a story "Get Up deserts Hicks over control order".

One of David Hicks's greatest champions, the online activist group Get Up, yesterday deserted the convicted terrorist supporter.

Get Up campaigns manager Ed Coper yesterday refused to criticise the decision by the new Labor Government to impose a control order on Hicks after his release from Adelaide's maximum security Yatala prison at the end of the month.

"All governments have got to weigh up the liberties of individuals and security as a whole," Mr Coper said.

Get Up campaigned strongly for Labor in marginal seats during the campaign for the November 24 election.

The Get Up website challenges this:

The Latest

Thursday, 13 December 2007

The Australian has reported that GetUp has abandoned David Hicks by refusing to criticise the control order to be imposed on him - this is untrue!!

GetUp does find control orders in general highly problematic, and further believes that, based on the evidence publicly available, they would be inappropriate for David Hicks.

We will continue to fight any infringements on the basic rights and liberties of all Australians, including David Hicks.

Today's Australian on page 2 contained a clarification of the article and a letter from GetUp to correct this error.

The Australian's website doesn't appear to show the "clarification", nor does my print copy (or the website) have a letter from Get Up on p2.

What does appear in my copy under the heading "clarification" is this:

"An article in The Australian yesterday("GetUp deserts Hicks over control order") claimed that GetUp campaigned for Labor in marginal seats during the recent election. In fact, GetUp presented independent material rating all parties on election day in more than 100 seats, not just in marginal seats or in support of Labor as claimed."

Some interesting points here. Apart from The Australian's reluctance to put the clarification on its website, GetUp hasn't really indicated how it might support "any infringements on the basic rights and liberties of all Australians, including David Hicks."

Perhaps it could enlist Julian Burnside. His position, as reported in The Australian article, is far less equivocal:

Liberty Victoria president Julian Burnside QC said Hicks did not warrant a control order based on information on the "public record".

Mr Burnside warned that when the order was decided upon by a magistrate, the AFP could keep some evidence secret from Hicks. He said "secret evidence" raised the spectre of the botched prosecution of Gold Coast doctor Mohamed Haneef, warning that Hicks would be powerless to "correct" any mistakes in the evidence.

One law for the ...?

Two contrasting stories.

1. In this week's Bulletin Rodney Adler writes of his time in prison.

Apropos of this, yesterday The Australian reported:

The Bulletin's editor-in-chief, John Lehmann, said the magazine had offered Adler the standard contributor rate for his tale but that Adler had asked for a payment to be made to a Jewish charity instead.

"Adler understands that many Australians, especially those who lost money in the collapse of the HIH insurance group, remain angry with him for his role in the corporate disaster," Lehmann told The Australian. "He knows he will probably never recover his credibility. But his article is not an attempt to appease or justify his actions. Rather, it seeks to build on our understanding of what prison life is like for inmates and their families."

Adler was sentenced on April 14, 2005, after pleading guilty to four charges arising from his conduct as a director of HIH. The insurer collapsed in March 2001, with debts of $5.3 billion.

2. Today ABC News reports:

New law and order measures have taken effect today in South Australia, including laws to stop convicted terrorism supporter David Hicks from selling his story after he is freed from jail this month.

SA Premier Mike Rann says Hicks is free to tell his story but cannot make money from it. Mr Rann says it should be remembered that Hicks pleaded guilty to supporting terrorism when he faced trial at Guantanamo Bay in Cuba.

"Court documents show that he received training on guerilla warfare, weapons, kidnapping and assassination and I don't regard those activities as those of a good citizen," Mr Rann said.

SA Attorney-General Michael Atkinson warns that Hicks can be deprived of any money he accepts for telling his story.

"We're happy for David Hicks to tell his story but we will prevent him making a profit out of it," Mr Atkinson said. "And if a profit is made we'll take that money and put it into the victims of crime fund."

Am I alone in seeing an inconsistency or two here?

Update later 6 December

I've just noticed the news.com.au version of the David Hicks story, which has airbrushed out all references to Mr Rann. Perhaps the Premier has sniffed the breeze of the comments on the ABC website, which are mostly critical of the Australian authorities.

Terry Hicks speaks to US Media

USA Today reports (via Crikey) that Terry Hicks, David's father, is still supporting his son. It's maybe not surprising that the story doesn't seem to have been picked by the mainstream Australian media.

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.

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.

Hicks case comments

Since the verdict/agreement/plea bargain/sentence has been announced there has, not unexpectedly, been a great deal of media comment, particularly from Australia and the US.

US comment

For a pithy and witty summary here's Andrew Sullivan at The Daily Dish .

If you think this was in any way a legitimate court process, you're smoking something even George Michael would pay a lot of money for. It was a political deal, revealing the circus that the alleged Gitmo court system really is. For good measure, Hicks has a gag-order imposed so that he will not be able to speak of his alleged torture and abuse until after Howard faces re-election. Yes, we live in a banana republic. It certainly isn't a country ruled by law. It is ruled by one man and his accomplice.


William Glaberson in The New York Times offers a more sober assessment:

From the start, Guantánamo, its detainees and the legal proceedings here have provided enough grist to support the competing views of the detention center: a necessary mechanism for dealing with a new kind of enemy, or the embodiment of the war on terror gone awry.

Mr. Hicks’s conviction with a guilty plea provides something for each side. He admitted training with Al Qaeda, guarding a Taliban tank and scouting a closed American embassy building. But there is no evidence he was considering a terrorist attack or capable of carrying one out. Yet he was held five years and four months before he got his day in court. And at the end of a very long day at the tribunal Friday, his actual sentence was only nine months.

To the prosecutors and the extensive public relations apparatus assembled by the military here, Mr. Hicks’s case proved, as one spokeswoman regularly repeated, that the military commission system offers a “fair, legitimate and transparent forum.”...But to some in the courtroom, the proceedings proved only that the system was rigged to show detainees that the only way out of Guantánamo was to give the prosecutors what they wanted. Not only did Mr. Hicks plead guilty, but he also signed a plea bargain in which he recanted his accusations about being abused in detention and promised not to speak to reporters for a year.

.....

In the cadre of observers from advocacy and human rights groups here to monitor the proceedings, the plea deal Mr. Hicks reached was fresh evidence of the coercive power of this place. The plea bargain included a provision that will get Mr. Hicks out of detention here and into an Australian prison to serve the rest of his sentence within 60 days. That provision as much as any served as a reminder of the international crosscurrents that will swirl around many of the cases here. There had been growing diplomatic pressure on the Bush administration to return Mr. Hicks to Australia, where his case has drawn wide attention and where Prime Minister John Howard, one of President Bush’s most stalwart supporters, is facing a tough re-election fight.

.....

as developments unfolded, David H. B. McLeod, an Australian lawyer working with the defense, provided insight into Mr. Hicks’s thoughts. “He says that if he is the worst of the worst, and the person who should be put before a military commission first,” Mr. McLeod said, “then the world really hasn’t got much to worry about."

Carol Williams in The LA Times makes some interesting observations:

Bringing his case to the war-crimes tribunal first, and before all the procedural guidance was ready, left the impression with many legal analysts that Crawford stepped in to do Howard a favor — at the expense of the commissions' credibility.

Even the chief prosecutor, Air Force Col. Morris Davis, issued what seemed a subtle dig at the plea deal made behind his back. After offering sincere congratulations to Hicks' military defense lawyer, Marine Maj. Michael Mori, he said he also wanted to thank Howard's government for everything it had done to bring closure to the case.

Davis said that the lenient sentence was negotiated without his input and that he signed off on the pretrial agreement because opposing it would have been "a symbolic move."

The Hicks deal followed by only a day Defense Secretary Robert M. Gates' expression of concern before a congressional committee that because of Guantanamo's reputation in the world, the tribunal verdicts were going to lack credibility.

Friday's "machinations" in the Hicks trial and international reaction to the hand-slap sentence "suggest the accuracy of Gates' Thursday testimony about global perceptions of the military trials held at Guantanamo," said University of Richmond law professor Carl Tobias.

Legal analysts condemned the first completed case as fresh evidence that the detention and prosecution are unjust and immoral.

"From the beginning, the Hicks proceedings have illustrated everything that's wrong with these military commissions," said Maureen Byrnes, executive director of Human Rights First.

"The plea deal in particular has the taint of coerced statements and secrecy. The deal effectively censors anything Mr. Hicks might allege about what he says he suffered and implausibly characterizes the last five years of his detention as justified under the laws of war."

As a condition for the light sentence, Hicks was compelled to state that he has never been "illegally treated" in U.S. custody. He also had to promise not to bring any legal actions against U.S. officials or citizens for any reason.

"Add in the widespread perception that the plea deal was in part the result of intense political and diplomatic pressures, and the conclusion is inescapable that these military commissions don't deal justice, they deny it," Byrnes said.

The prohibition against Hicks ever claiming he was "illegally treated" in U.S. custody contradicted sworn statements submitted in his attempt to obtain British citizenship and a more protective home government.

The statement to a British court said he had been repeatedly beaten, sodomized and forced into painful positions during interrogations.

See also Joan Z Shore at Huffington Post 's post "Trial and (T)error".
Crikey has links to these and other comments, with the pithiest summary of them all "Hicks deal stinks say American commentators".

Australian comment

Yesterday's Australian editorial "Plea bargain is less than perfect justice: David Hicks has got a good deal, thanks to politics" reflected the mixed feelings of many conservative and other commentators about both the process and the outcome:

The more that is known about the terms of the plea bargain agreed to by confessed terror trainee David Hicks, and the way it was concluded, the more disturbing it becomes. While the arrangement may serve the purposes of the US and Australian governments and ensure Hicks gets out of prison quickly, it does little to dispel complaints that the process was riddled with political interference. As Geoff Elliot reports in The Australian today, the prosecution, judge and jury were kept out of the loop. Hicks's US defence lawyer, Major Michael Mori, went over their heads to Washington where he negotiated directly with the head of the Convening Authority for US military commissions, Susan Crawford. While not a political figure in her own right, Ms Crawford has had a long working association with US Vice-President Dick Cheney. At the end of negotiations, the eight-member panel of the military commission in Guantanamo Bay was presented with a done deal. This is at odds with the version of events given by John Howard, who said the plea bargain was negotiated between the military prosecution and Mr Hicks's lawyers.

There is an unmistakable stench of political expediency to the terms of the plea bargain, in particular the extraordinary 12-month gag order that prevents Hicks from speaking publicly about the actions to which he has pleaded guilty or the circumstances surrounding his capture, interrogation and detention. The gag also silences family members and any third party. While no one would suggest Hicks should not be allowed to sell his story, a blanket gag order that extends beyond the period of incarceration is a disturbing erosion of free speech. And the fact it is only in place for one year gives a clear impression its main purpose is to keep Hicks quiet until after the federal election.

From the US perspective, Hicks has sworn he was never illegally treated during his capture, transfer to or detention at Guantanamo Bay. The agreement says this puts to rest any claims of mistreatment by the US. And Hicks has agreed not to take legal action against any US official over his capture, treatment or prosecution. In exchange, Hicks will be handed over to Australian authorities within 60 days and gets a maximum sentence of seven years, suspended after nine months.

For everyone except Hicks, who seems to have escaped with a remarkably light sentence given the serious nature his charges, it is a deeply unsatisfactory outcome. By short circuiting the tribunal process, the most serious allegations will never be tested. Justice has been blatantly compromised by international politics and diplomacy in a way that would be deplored in any other arena. The fact that Hicks's civil liberties supporters have not protested vigorously about this since the plea bargain was struck suggests they know how lucky he has been. Their conduct throughout Hicks's detention must not be forgotten for what it was -- an avenue through which to protest at the policies of US President George W. Bush and the support he has been given by the Australian Prime Minister. Hicks's robust physical and mental condition when he appeared before the military tribunal last week, and the news that he has been able to study mathematics while in detention, gives the lie to the allegations of abuse levelled against his captors. In all, the plea bargain represents an unsatisfactory end to a saga that was allowed to drag on for far too long. The five-year delay in bringing Hicks to trial ultimately proved morally and politically indefensible. This has resulted in Hicks getting what seems a favourable sentence for his agreed offences. While expedient, plea bargains are no substitute for considered justice in open court."

The Age didn't have an editorial but has published several articles including Robert Richter QC's "A trial that was uncomfortably close to Stalinist theatre" and Liz Porter's "Law behind closed doors", as well as 's piece "It is a myth that the Guantanamo camps are hell on earth".

Last night ABC TV's Four Corners had a pretty good overview, considering the brief time between the verdict (or its announcement) and the program. The program website includes a transcript and a handy list of links to other sources See also Tim Dunlop at Blogocracy and a witty "spot the terrorist" post at The Road to Surfdom

Latest developments

Premier Rann, who is in Chile at the moment, has been banging the populist drum about the risks that David Hicks' release might pose. In a pot calling the kettle black scenario Prime Minister Howard who was in Adelaide todayaccused Mr Rann of "rank hypocrisy":

Mr Rann said: "What I want to know from the Federal Government is, what are the conditions of his release? What are the parole conditions? Will he be under supervision?"

Mr Howard said it was only a few months ago that the South Australian attorney-general had joined with other Labor state attorneys-general to demand that Hicks be returned home without charge. The state attorneys-general made the demand after meeting with Hicks' military lawyer, Major Michael Mori.

"I can remember seeing all of them lined up on television after they'd had a meeting with Major Mori," Mr Howard said. "They weren't arguing for a sentence, they were arguing for him not appearing before the military commission. And for Mr Rann to now turn around and say I am worried about the safety of South Australian public is just rank hypocrisy," Mr Howard said.

In this instance I reckon it's Mr Rann who's gone over the top: he talks about "parole", yet Hicks' sentence only refers to a "suspended sentence". They may seem synonymous but there are significant differences between them, as the SA Courts Administration Authority website makes clear: a suspended sentence is imposed by the court at the time of sentencing, whereas parole is essentially an administrative mechanism which may be activated after a period of imprisonment.

In the Premier's huffing and puffing he seems to have forgotten about his own government's policy on corrections, which is set at on the Corrections SA website:

Many people in the community have an impression of prisons as a place where criminals are simply locked up for punishment. That opinion would have been true 50 years ago. After many years of experience and study, government and judicial systems have recognised the need for prisons to be places of change. A basic question needs answering - what is the use of a prison system which returns an offender to the community the same if not worse than when he or she entered prison? The philosophy in most modern prison systems is to try and change the behaviour of offenders by developing in them skills which see all people live in the community without resorting to crime.

There’s a lot of other information on the site about how prisoners are managed and prepared for release (including being given day leave before release). Is Mr Rann proposing that these processes shouldn’t apply to Hicks?

On tonight's ABC TV 7.30 Report (transcript not available as I post) Kerry O'Brien interviewed Major Mori , who played a very straight bat (in the cricket sense of the word) and kept a straight face while not revealing very much at all.

And, just now, Crikey has put out a special edition "David Hicks tells all", which consists 20 headlines, eg "The guilty plea: how I advised David - Major Michael Mori writes", each followed by a blank space as the plea bargain deal stipulates.

That's enough for now!

"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.

Another step in the Hicks case

Hard on the heels of today's Age report of allegations of torture made by David Hicks comes news of the next stage in the process laid down by the US authorities (which prompted an on air exchange between Terry Hicks and the Prime Minister: reported on the same link):

Hicks was charged today with providing material support for terrorism and referred to trial by a special military commission at Guantanamo Bay, Cuba, the Pentagon said. But a second charge of attempted murder was dismissed after Judge Susan Crawford concluded there was no "probable cause" to justify it.

For other comments see here(whose headline "Clock ticking for Hicks" implies that the charge will now automatically proceed to a hearing) and here (an unfortunate greengrocer's apostrophe in the headline "Hick's father feels no relief at charges).

Hicks could face years of litigation says Major Mori

Today at Adelaide University there was another meeting or "rally", as most of the media reports I've seen described it, about David Hicks. Anyone who's ever been in a Napier Building lecture theatre (the venue) will know how inaccurate the latter term is. That aside, the indefatigable Major Mori spoke to those present. His comments have been reported in the media, including News.com.au("Hicks will 'be in court for years'"), The Age ("Hicks could face years of litigation"), The Australian ("Hicks will spend years in court: Mori") and Yahoo!7 News ("Hicks facing years of litigation:Mori").

I wasn't at the meeting as I was visiting a friend in the nearby Royal Adelaide Hospital. I did by chance bump into Major Mori as I was walking along North Terrace afterwards, so I was able to tender my apologies, shake his hand and tell him to keep up his good work.

US Vice President Cheney, who is still visiting Sydney (which is not the same as a"tour of Australia", as some eg the ABC have described it) has been quoted by News.com.au as saying that "Hicks is near the head of the queue":

Mr Cheney said Hicks had now been charged and the US Defence Department was now deciding whether a military commission would be convened to try Hicks. "Mr Hicks is near the head of the queue," Mr Cheney said. "We can't interfere with that process.It's a judicial process. We can't influence it. That would be a violation of the procedure.But I do expect that in the not too distant future that ... will get resolved. I can assure you we will be doing everything we can to deal with these matters in as expeditious manner as possible."

Mr Howard said while he did not sympathise with Hicks, he did stress to Mr Cheney his concern about the amount of time it was taking for him to be put on trial. "I have asked ... that the trial be brought on as soon as humanly possible and that there be no further delay," Mr Howard said. "I have put that very plainly and I have put that in the context of direct speaking of close friends."

Hmmm...

David Hicks update

In the last few days there have been several media items about David Hicks, including two from Channel Nine's Sunday

• The cover story "Caged Animal, David Hicks, A Nation's Shame"and whose website features a computer generated image based on reports from recent eyewitnesses: to see it click here.
  
• An interview with Foreign Minister Downer, which included this among several other equivocal statements:

LAURIE OAKES: Some newspapers are reporting this morning that John Howard is working to get David Hicks home before the Federal election, is that true?

ALEXANDER DOWNER: Well, what we are trying to do is ensure that the trial takes place as quickly as possible so assuming that the trial goes ahead on schedule, then whether he's – whether David Hicks is convicted or he's acquitted, and we obviously make no judgment about that - but he should be able to come home to Australia before the end of the year. That is, if he's convicted we've made an arrangement with the Americans which was confirmed to me 10 days ago by the Secretary of Defence, Robert Gates, that David Hicks will be able to serve his sentence or the remainder of his sentence in Australia. If he's acquitted, of course, he'll be allowed to go.


On ABC TV's Insiders Opposition foreign affairs spokesman Robert McLelland not surprisingly doubted Mr Downer's claims.(Transcript is not available at time of posting - promised for later - but item can be viewed using Windows Media/ Real Player.)

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.

Lawyer at last meets client and expresses concerns about treatment

The Australian, The Age, The Washington Post , The New York Times and the ABC report that David McLeod, David Hicks' Australian lawyer, has visited his client in Guantanamo Bay.

From the ABC website:

Mr McLeod told ABC radio's PM program that Mr Hicks was chained to the floor of the cell where he is kept for 22 hours a day, and was clearly despairing of his situation."His visage was an extremely sorrowful one," he said."It took us some time to discuss the matters that had occurred in Australia with him, and to convince ourselves that he was in a position to understand what we were imparting to him."

Mr McLeod has likened the US military prison to a Nazi death camp and says he will take his concerns to American authorities."He continues to be locked up for 22 hours per day," he said."He tells me that he's only seen the sun three times since the beginning of December last year when he was moved." Mr McLeod reports that his client is chained to the floor for 22 hours a day and has not seen sunlight for months.

From The Washington Post website:

"He has no privacy whatsoever ... his toilet paper is rationed, he hasn't been able to comb his hair since going there because he's not provided with a comb or brush," he [ McLeod]said.

Tonight the ABC claims that Attorney-General Ruddock has asked for a further report:

"I've asked that an assessment be carried out and that be dealt with as a matter of urgency and I think informed views on this matter should await some more detailed assessment," he said.

A few days ago Foreign Minister Downer was satisfied with a comment by a US embassy media officer that Hicks was in "reasonably good shape". Now a more detailed assessment is required. When and where will it all end?

Kennett adds another Liberal voice in support of bringing Hicks back

The Age reports that former Victorian Premier Jeff Kennett has added his voice to those calling for a swift resolution to the David Hicks affair. The print edition also claims that Senator Marise Payne (Liberal NSW) has also reiterated her concerns about delays in bringing the case before a court.

Another story posted at smh.com.au suggests that there may be some flaws in the case against Hicks, as two of the US embassies he was alleged to have staked out were apparently abandoned at the time he was supposed to have done the staking )or staking out).

Black hole or vital tool? More on Guantanamo, Hicks etc

The question comes from a recent BBC report. A partial answer has been provided by today's report from a delegation of British goverment MPs

MPs who have visited Guantanamo Bay have called on Britain and the international community to do more to help the US close the camp.Seven Foreign Affairs Committee members visited the detention centre for "enemy combatants" in Cuba in September. In a report they were critical of the conditions there, but said many inmates posed a threat and the world needed to find a "longer term solution". Opposition MPs and human rights groups called the report "disappointing".

The chairman of the committee, Mike Gapes, told BBC News: "The problem is if you closed it straight away what do you do with the people that are there? Some of them no doubt could be released - sent back to their country of origin and be of no threat to anyone. But there are people there that are dangerous people...The international community as a whole needs to look at finding a longer-term solution."

The MPs spent only one day at the camp and had no direct access to detainees. Their report says food was plentiful, medical care good and the facilities broadly comparable with a British maximum security prison.But they said the camp did not meet UK guidelines for recreation and education facilities nor for access to the media, lawyers and the outside world.One area apparently was closed for repair after detainees had been found dismantling the plumbing to make weapons.Electric lighting was kept on 24 hours a day. Some detainees were reported to be clinically obese; two were being force-fed and 20% had some psychiatric condition (emphasis added).

The MPs said prisoner abuse had "almost certainly" happened there but the added that this was "unlikely to be taking place now".

And in Australia...The Age puts the report into an Australian context, following on from earlier statements that Foreign Minister Downer had relied upon a cursory assessment made by a US diplomat without medical expertise following a three minute or five minute visit (depending whether you read The Age or The Australian). Having weighed up the evidence thus obtained Mr Downer has expressed the opinion, as The Age states, that " there was no suggestion that David Hicks was suffering from mental illness".