Rough justice for roughnecks
Blogging op-ed pundit and law academic Mirko ‘The Torturer’ Bagaric apparently subscribes to The Phantom’s Theory of Justice; rough justice for roughnecks. And David Hicks is one of those roughnecks, whose rights (if any) must be sacrificed to the common good as determined by Bagaric.
One of numerous problems with this approach, however, is that Hicks may well be entitled to Prisoner of War status under the Third Geneva Convention, although a dodgy American military kangaroo court called a Combatant Status Review Tribunal has determined otherwise and labelled him an “unlawful enemy combatant” instead. It’s a tribunal whose activities haven’t received much attention in the Australian media, even though its decision may well prove decisive to Hicks’ legal fate. That’s why I’ll return to it in a moment.
But first to Mirko Bagaric. As Gummo Trotsky discusses over at Lava Rodeo in an excellent post, Bagaric’s argument (as with his arguments on most subjects including the desirability of legalising torture) rests on a simplistic and misleading pseudo-utilitarian analysis. The notion of inalienable human rights (especially those of a roughneck like Hicks) is nonsense, Bagaric argues, echoing the father of utilitarianism Jeremy Bentham. Only a utilitarian or consequentialist approach will suffice in making moral decisions, including as to the manner in which captured enemy soldiers should be treated. However, even if we accept that premise without question (as I will for present purposes), the Geneva Conventions in fact rest on very sturdy utilitarian foundations. If a nation doesn’t treat captured enemy soldiers in accordance with basic generally accepted norms of decency, it can’t reasonably expect that its own soldiers will be humanely treated in a similar situation. As the world’s largest military power, you would think this particular utilitarian equation would weigh heavily in the calculations of the United States, but there’s certainly no sign of it in the Bush Administration’s treatment of prisoners, either at Guantanamo Bay or elsewhere under its extraordinary (and manifestly illegal) “rendition” policy.
The Third Geneva Convention lays down quite detailed rules for the treatment of POWs. Most importantly for our present purposes, it (especially Article 82) prohibits a Detaining Power from prosecuting POWs for offences like murder or attempted murder, where the particulars (as with Hicks) are that the POW simply did his job and tried to kill enemy forces. It’s a basic commonsensical reciprocal utilitarian principle, because otherwise the position of any soldier would be utterly untenable: if captured he could by definition be tried and (perhaps) executed for murder merely for fulfilling the basic role of a soldier in fighting enemy forces, whereas if he refused to do so he would be court-martialled by his own side and suffer a similar fate!
If Hicks is entitled to be treated as a POW under the Geneva Conventions, then he cannot be charged with attempted murder as the Americans have purported to do. Moreover, the known evidence suggests fairly strongly that he is indeed entitled to POW status. Hicks was captured by Northern Alliance forces while fighting in Afghanistan in the months following September 11, just after the US began its invasion to oust Al Qaeda and its Taliban hosts. He was guarding a Taliban tank, dressed in a Taliban military uniform, openly armed but made no attempt to fire his weapon, and was captured along with two other uniformed Taliban soldiers. On the face of it, Hicks was serving, however informally, as a member of the Taliban military forces.
That should be enough of itself to entitle him to POW treatment under the Third Geneva Convention. Article 4 extends POW protection not only to members of the ordinary military forces of a generally accepted sovereign government, but also to “militias and members of other volunteer corps, including those of organized resistance movements” and “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” However odious a regime, the Taliban fairly clearly falls into one or both of these categories. However, a militia or armed force must also satisfy certain additional criteria for its members to be entitled to POW status:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance (e.g. by wearing uniforms rather than being disguised as civilians);
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Again, the Taliban fairly clearly satisfied those criteria too. I suppose the Americans might try to argue that the Taliban did not conduct its operations in accordance with the laws and customs of war, but a nation which deliberately bombed civilians in Falluja; routinely practises “rendition” of prisoners to allow them to be tortured offshore secretly; and which has officially redefined torture to exclude numerous forms of coercion that it wants to continue using but can’t successfully hide or deny; is hardly in a position to throw too many stones in that direction.
It looks like US military authorities are well aware of this potential weakness in their case. US military spokesmen, not to mention Howard and Downer when they talk about the Hicks case, are always careful to characterise him as an “alleged Al Qaeda fighter” rather than a Taliban one. If they succeed in that characterisation, Hicks might well be ‘properly’ denied POW status. A terrorist organisation which routinely resorts to suicide bombings and beheadings of civilian captives can hardly be seen, even on a liberal interpretation, as one which conducts its operations in accordance with the laws and customs of war. Could Hicks sensibly be found to be an Al Qaeda fighter, even though he was in fact fighting with the Taliban and wearing a Taliban uniform? Certainly, he appears to admit that he previously underwent terrorist training with Al Qaeda, but does that imprint him indelibly with an Al Qaeda label?
Of course, in many respects, all this is speculation. It simply isn’t clear how or why a Combatant Status Review Tribunal managed to conclude, contrary to the known evidence, that Hicks was an “unlawful enemy combatant” rather than a POW. As far as I know its reasons for decision aren’t publicly available. But my guess is that it has more than a little to do with the CSRT’s quite extraordinary rules and procedures, most of which conveniently aren’t mentioned by Bagaric (or indeed by Howard or Downer when they mention the Hicks case and profess themselves satisfied that he’s been treated fairly). Here are just a few relevant aspects of the CSRT process to which Hicks has already been subjected (extracts from the Wikipedia article):
- Detainees do not receive the presumption of innocence.
- Detainees do not get access to legal advice.
- Detainees are not entitled to access to the evidence against them, or in their favor.
- Hear-say evidence is allowed to be used against the detainees.
- The use of evidence acquired through coercive interrogation is allowed.
- There is no protection against self-incrimination.
- Evidence acquired through the torture of other suspects was allowed.
- The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.
- Detainees had no right to present witnesses or to cross-examine government witnesses.
- Detainees were not allowed to attend their own tribunals, unless they signed a long, complicated agreement wherein they agreed to waive rights. Half or more of the detainees declined to sign the agreement, without independent legal advice. American military spokesmen described this as the detainee deciding they did not want to participate in their review.
The US Supreme Court expressly declined to rule on the legality of the CSRT process in its decision last year in Hamdan v Rumsfeld (which ruled illegal the Military Commissions which were to determine the substantive guilt or innocence of charged prisoners who had previously been found by a CSRT to be “unlawful enemy combatants” and therefore potentially eligible to be charged and tried criminally). However, a lower court judge in that case expressed the view that the CSRT process didn’t meet the minimum requirements of Article 5 of the Third Geneva Convention (which remains part of the domestic law of the United States).
I must say I’m a little bemused as to why Hicks’ lawyers haven’t to date made any moves to challenge the legality of the CSRT finding against him. If it was held invalid, then Hicks simply could not be charged with attempted murder or tried before a military commission reconvened under the new legislation enacted in the wake of Hamdan v Rumsfeld while the Republicans still had the numbers in both Houses. On the other hand, if this “unlawful enemy combatant” determination remains unchallenged, Hicks might well ‘properly’ be found guilty. US military prosecutor Colonel Moe Davis hints at the argument the Americans are planning to use against Hicks here:
Colonel Davis said the evidence against Hicks was damning and would be fully laid out during the military commission.
“He picked up a rifle and a grenade, went to where he thought the US forces and coalition forces would be present, when they weren’t there he relocated to another spot where he thought there were better opportunities.”
“If Mr Hicks had the training, the equipment, made the conscious decision to go back to Afghanistan to the combat zone and pick up arms so he was positioned and ready, he just never had the opportunity,” Colonel Davis said.
Assuming that this correctly characterises what is alleged against Hicks, it clearly would not allow him to be charged with any crime if he is entitled to be treated as a POW, but might well amount to attempted murder if he isn’t. Under Australian law at least, the provisions of section 4 of the NT Criminal Code are fairly typical of the law in relation to attempts to commit a crime:
4. Attempts to commit offences
(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that, by reason of circumstances not known to the offender, it is impossible in fact to commit the offence. …
So why hasn’t Major Mori been given instructions to challenge the validity of the CSRT determination that Hicks is an “unlawful enemy combatant”, given that it may end up being conclusively determinant of his criminal liability or immunity?
… (c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
At least under Australian law, a provision of that sort would not be sufficient to exclude judicial review of the legality of such a finding by an organ of the executive government. Certainly, the US Supreme Court’s constitutional powers to review executive government decisions (like those of a CSRT) aren’t as strong as those of Australia’s High Court, and American courts have tended to adopt a somewhat more deferential approach to executive government. Ultimately, however, even a conservative and deferential US Supreme Court might well rule against the validity of an utterly perverse CSRT determination made in the face of both the law and facts.
Perhaps Hicks and his legal advisers have simply concluded that it’s better to take their chances with a military commission trial and worry about another judicial review challenge later, rather than mount it now and delay the process for another couple of years while Hicks continues to languish in effective solitary confinement in Guantanamo Bay. Perhaps Mori simply hasn’t yet had an opportunity to get instructions from Hicks since the new charges were laid (I gather they carefully avoided serving notice of the charges on Hicks until the day after Mori had left Guantanamo on his last visit). Perhaps there are other legal factors, of which I’m not aware, that make a legal challenge to the CSRT determination unviable. I don’t claim to have an encyclopedic knowledge of US law. Do we have any US lawyer readers who can help out with information here?
Finally, I should observe that there are some aspects where I actually agree with Bagaric. I certainly agree that Hicks is indeed a roughneck, and may well be a dangerous one. He isn’t the dreadfully wronged innocent abroad that some of his more strident supporters would like to paint him. Not only did Hicks undergo terrorist training with Al Qaeda, he has also by his own account been a dedicated Jihadic warrior through three successive military campaigns, in the former Yugoslavia, in Kashmir and then in Afghanistan. Moreover, he
not only expressed approval of Al Qaeda’s September 11 atrocities, but in full knowledge that those events had occurred returned to fight for the continuance of the Afghan regime which was giving Al Qaeda support and sanctuary. Whenever and however Hicks is repatriated to Australia, he will bear close watching.
Secondly, and quite apart from the validity or otherwise of criminal charges against him, one consequence of being classified as a POW is that the Americans could perfectly legally keep him in detention until the war against the Taliban is concluded. They also have a discretion (but not an obligation) under the Geneva Conventions to allow Hicks’ release and repatriation if satisfied that conditions can be put in place to ensure that he cannot simply return to Afghanistan and rejoin hostilities as a combatant. However, the Americans have allowed the repatriation of various UK and Canadian citizens in situations apparently not dissimilar to that of Hicks, and the control order regime enacted by the Howard government should provide the necessary machinery to allow effective surveillance and supervision to be maintained.
I agree with Bagaric that a person who has behaved as Hicks has done can reasonably expect to suffer some restrictions on his liberty in the interest of the collective good. What he shouldn’t reasonably expect, and what Australians should no longer tolerate, is to be imprisoned in unnecessarily harsh conditions for 5 years without trial, improperly denied POW status under international law, and then subjected to a manifestly unfair kangaroo court process to determine a criminal liability from which he would be legally immune had he not been improperly denied POW status.