As a POW, I suggest that he could only be legally detained by the US while hostilities against the Taliban are still in progress. We’ve all rather forgotten Afghanistan since the WoT moved on to Iraq, haven’t we?

Either the US has prevailed over the Taliban – and hence hostilities are over – or it has not – and the hostilities in Afghanistan continue. One reason that the US won’t accord the Guantanamo Bay detainees POW status, and insists in most cases on the Al-Qaeda connection might be found there – granting POW status as Taliban fighters might create something of a political embarassment if the hostilities are still on-going.

From the footage I

We’ve captured many Taliban and Al Qaeda fighters without distinctive markings. If Abu Austraili was wearing such headgear, which I did not hear was the case, then that would put his status on firmer footing, of course. But don’t blanket the argument with with what you wish to be true for the sake of your righteousness.

Read the memoirs by the special forces guys who were first in. There was a heck of a lot of confusion about who was who and sometimes it took them weeks to figure it out, a lot of the times because the captives wouldn’t talk, or just repeated Koran phrases. Al Qaeda and the Taliban did indeed fight side by side in battles, with similar weaponry and sometimes without the distinctive clothing that either seperates them from each other or from the larger population. This “total blur” scenario has not happened all the time, of course, nor has your “utterly-clear-and-distinct” scenario. It just is not as clear as you pretend.

Your point about some kind of devious attempt to conflate Al Qaeda with Taliban is a little paranoid for my taste. You should back off that kind of stuff and just stick to the arguements.

If you assume that any particular agency is corrupt, you will naturally order facts regarding the agency’s actions, where there are significant unknowns, into a narrative that demonstrates the corruption you seek. This is unhealthy.

None of us are on the battlefield. We got any international lawyers posting here? Or is it all just googling, ego and hatred?

I thought “enemy combattants” was a legal designation? If so, how is that outside the law?

From the footage I’ve seen on the tele, Guantanamo isn’t this sordid nightmare it is made out to be. No more so than any other prison. In fact, it looks better than most from what I can see. And there’s human rights people through there all the time, every day from accounts.

The casual dropping in of the heroin issue is funny, btw.

G’night.

However, it is nonsense to say that to the extent that the current rules are awkward in this situation then we shouldn’t have to observe any rules at all. I can’t help but think that the behaviour of the US in relation to the Guantanamo detainees is all a bit of a litmus test to see just how far dominant world powers can wind back protections of international law whilst still claiming to observe it. For further examples see the Howard Government’s efforts to “comply” with the refugee convention.

“What does it mean to wear a uniform if it is indistinguishable from the average citizen?”

Article 4 doesn’t require a uniform, only a “a fixed distinctive sign recognizable at a distance”. Taliban fighters (including Hicks) may not have worn full military uniforms like American or Australian soldiers, but they did in fact wear distinctive headdress and olive green fatigues. That is mostly how the Americans managed to identify and capture them. Moreover, the fact that they were issued Taliban uniform is actually pleaded in the US particulars of charge against many defendants.

“What is the difference between being

It seems to me we have an international military justice framework and rule set that can only (mostly) be understood from the perspective of western military conventions. This creates an enormous problem where western and non-western meet. Exact translation of law is an honest problem here.

What does it mean to wear a uniform if it is indistinguishable from the average citizen? What is the difference between being “issued” a rifle by a ragtag group of Al Qaeda fighters and being handed a rifle by some guy you’re walking with in a newly-formed street posse of Al Qaeda sympathizers? I think these two examples are indistinguishable. Its all in the way you word it. Which is to say, it is a matter of inequivalent translation from our understanding to theirs and back.

The lost-in-translation conundrum happens again with Mr. Hicks’ name. He took a different name Abu something Austraili to signify his allegiance with the “Nation of Islam” — a nation which, to Islamists, supercedes the western idea of the nation state. Is that signification insignificant? Is the name, in a way, a uniform? Why his father calls him by his born name instead of his “real”, current chosen name, is obvious (patriachal identification plus political savvy). All our hearts go out to him, a father that seeks one more chance for his son and himself. But his son’s name is his own now.

I think these are honest questions. And if they are, let’s not pretend to know all the answers.

If a call is to be raised for his extradition to Australia or swift trial or whatever, let us understand that there may not be a precedent for it. Maybe the best argument should be, “we don’t know what the heck he is, except he’s ours!”

What an horrendous piece of moral equivalency this is when you reflect on the events of 9/11 and its aftermath.

There are long-established protocols to deal with such as Hicks – the US and Australian governments have acted illegally and disgracefully in ignoring the rule of law in his and other instances.

One quibble, though: your earlier (#4) response to Yobs is inaccurate – the Geneva Conventions predate Japan’s WWII atrocities by a considerable stretch of time, originating in the 19th century. That the USA should trash these traditional conventions in such flagrant manner speaks poorly of our supposed Pax Americana.

Likewise, the disgusting complaisance of the Howard government in allowing (encouraging?) another country – and a supposed ally at that – to imprison one of our citizens without trial is beyond the pale.

It is also alleged that Hicks travelled to Pakistan to visit a friend on or about September 9, 2001 and that while at his friend’s house he watched the September 11 terrorist attacks on New York and Washington DC and expressed approval of the attacks

Hicks then returned to Afghanistan, the charge sheet alleges, and was issued an AK-47 automatic rifle and armed himself with 300 rounds of ammunition and three grenades to use in “fighting the United States, Northern Alliance and other Coalition forces”.

Whether Hicks can properly be regarded as a POW or an unlawful enemy combatant may well depend on whether he was issued the rifle, ammunition and grenades by the Taliban or Al Qaeda. If the latter, the prosecution would have a reasonable argument that he was an Al Qaeda (unlawful) combatant notwithstanding being attached to Taliban forces and wearing a Taliban uniform when captured.

In previous wars it’s more than likely he would have been shot out of hand in the field, except insofar as he might have had some intelligence value. Any intelligence value he may have had would have evaporated by now. If he’s tried and found guilty he’ll probably end up with a determinate custodial sentence which is much better than he could expect as a POW.

The bleating about Hicks is totally sickening. There are far worse cases of injustice in the world than this.

It’s immaterial whether he’s Al Quaeda or Taliban, they are both the same. In respect of 9/11 Al Quaeda was an agent of the Taliban, and protected by them. Afghanistan committed a vicious unprovoked act of war on the USA.

In fact there isn’t a blanket prohibition in Australian courts on admission of illegally obtained evidence, although you would never know it from reading Bagaric’ article. It is seriously misleading in that respect as well. The Australian position is well summarised in this article by Debra Osborn in Murdoch Uni’s E-Law journal:

Neither the Exclusionary Rule of the United States, nor the ‘fairness’ centred Canadian or English doctrines is the law of Australia. In Australia, the various public policy objectives of the other justice systems collectively underlay the discretion to exclude illegally obtained evidence. In Bunning v Cross the Australian High Court ruled that trial judges have a discretion to reject illegally or unfairly obtained evidence after considering these competing public policy requirements and weighing them against each other. In doing so, the majority affirmed that the statement of Barwick CJ in R v Ireland represented the law of Australia

On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

Stephen and Aickin JJ went on to specifically deny that fairness to the accused was the aim of the discretion, rather it was

to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law.

Their Honours then set out factors that are relevant to the exercise of the discretion. These include:

(a) the seriousness of the offence;
(b) the cogency of the evidence;
(c) the nature of the criminality,
(d) the ease with which the evidence could have been obtained legally; and
(e) whether an examination of the legislation indicates a deliberate intent on the part of the legislature to circumscribe the power of the police in the interests of the public.

Trial judges in Australia have the discretion to weigh up the merits of each case without fear of being overturned on appeal unless they fail to consider the relevant criteria in exercising the discretion. They are able to give consideration to competing public policy objectives in light of the facts of individual cases and reach a decision on those facts. The Bunning v Cross discretion applies to confessional evidence as well as evidence procured in consequence of illegal searches and unlawful acts.

—–

Osborn goes on to argue that there are more satisfactory formulae than the current Australian position. Her article contrasts strongly with Bagaric’s simplistic, misleading nonsense. Of course, he’s writing a populist op-ed piece rather than a scholarly journal article, but that’s no excuse for being as radically misleading as that.

I read such an assertion very recently but can’t now find it. I see that the Wikipedia article on Hicks says:

In November 2005, the Australian Broadcasting Corporation programme Four Corners broadcast for the first time a transcript of an interview with Hicks, conducted by the Australian Federal Police in 2002. [12] In this interview Hicks acknowledged that he had trained with al-Qaeda in Afghanistan, learning guerilla tactics and urban warfare. He also acknowledged that he had met Osama bin Laden. He claimed to have disapproved of the September 11 attacks but to have been unable to leave Afghanistan. He denied engaging in any actual fighting against U.S. or allied forces.

Hence I’ll suitably amend the primary post. It dopesn’t change the substance of my argument, however. The same Wikipedia source says:

Terry Hicks has said that his son seemed unaware of the September 11 attacks when they spoke on a mobile phone a few days after the American bombing campaign in Afghanistan began.

In other words, at the very least Hicks was well aware of the 9/11 attacks after speaking to his father, but nevertheless chose to continue fighting with the Taliban to support the continued sanctuary they were offering to Al Qaeda.