Colonel Moe or whatever his name is – essentially the prosecutor is coming off quite badly if you watch his body language.

If I have your assurance that the evidence wasn’t obtained by torture, I’ll go with that. I guess they keep it all behind closed doors and away from the rule of law because they just like their privacy. Can’t see anything wrong with that.

David Hicks wasn’t exactly passing nuclear secrets and salafists aren’t exactly the Soviet Union. But he did fight alongside detestable enemies. He didn’t betray the west because, unlike the Rosenbergs, he had already left it at the time he was captured. Hicks had changed his name to signify his allegiance to the “Nation of Islam.” He had left the reservation.

http://www.frontpagemag.com/Articles/Printable.asp?ID=1476

It appears the goal is to speak up loudly now about “getting Hicks home”, ignore the nature of the military process or play it down, and then blame his lawyers for holding Hicks away from the Government’s ‘ideal’ now of bringing him home.

It is impossible to believe Howard wants Hicks back in Australia before the election: regardless of any possible gagging deal entered into should Hicks accept a plea bargain and return, the media surge on the issue should Hicks come back to Australian soil would be damaging enough no matter the result of an overseas trial should that occur beforehand. On the other hand, there will be a continuing denouncing from lawyers in letters pages, emigrating to television, should the military process get underway. Howard would have to wear that, which is mounting in intensity already – so what does he do? His style is to blame others, and blaming the Hicks lawyers and demonising them would appear his way out, or, at least, return fire to neutralise or confuse the issue.

He should be repatriated regardless.

The problem is that he could not be convicted because (almost certainly) the evidence is tainted, having been obtained by torture. So, I don’t see any need for your backflip. He should be repatriated and, if there is admissible evidence against him, tried here.

Law is only meaningful if it is enforceable. And enforceability is only proven by enforcement. Therefore, outside of intrinsic literary or historical merit, Law is only the measure of its enforcement.

The same goes for international law.

For many, the UN is the fountainhead of international law.

Problem is, at the UN, all parties may opt out of the enforcement aspects of international law. Thus any member may, in effect, elect to opt out of international law.

And beyond that, any member with veto power, may opt the entire body out of enforcement. And this veto may be cast without regard for rationale. Thus any veto-empowered nation may, in effect, opt ALL nations out of UN-derived international law for no reason at all.

In a sense then, it is simply the action of the UN to enforce international law that is the sum and substance of international law. Either an adopted resolution is acted upon, thus enacting “international law”, or it is not.

And since enforcement is coercive by nature, only those nations with sufficient strength to coerce others, actually have the power to manifest international law as fact.

By the light of this argument, we may see that International law is indistinguishable from “might makes right.”

Thus discussions of “international law” as anything but the pure application of coercive force (or actions due to the believed threat of the pure application of coercive force) are merely rhetorical.

And rhetoric, it seems to me, is a prompt to more widespread agitation in the hope that it leads to a popular movement that leads to a popular consensus that leads to a popular threat against the existing power structure that leads to either a change in action by those in power or their deposement. The value of rhetoric is only in the end-state action it begets, not in the rhetoric itself.

The attempts to build consensus on international legal matters using this board, for instance, is just this kind of rhetorical play. The so-called human rights organizations, which have no mandate whatsoever and which proclaim American abuses, are agitating as well. The barking of weaker governments is the same as well.

The goal of it all is to influence what the UN might do. And since the UN only has the power of international law insofar as it enforces that law, and since the US is the only country powerful enough to coerce all others, the real goal is to influence the US. Because in the “might makes right” world in which we live, “International Law” is what the US allows it to be.

The other alternative is to topple the UN and replace it with a union of nations that are collectively more powerful and coercive than the US. Since that is a difficult proposition even if there were the will to do so (putting the moral sense of it aside), one can assume we’re back to the first strategy, of influence of the US by agitation.

So its all just a bunch of agitation-ploys, scream, yell, cajole, argue, marshall facts, make facts up, call people names, guilt people, dismiss people, offer people bribes, flatter them, BS them, form a group, get a petition signed, get some insecure or addled US Democrat on board first and try to play the US media to put him/her on television so that popular sentiment is stirred up, which means votes, which means more craven politicians will jump on board, etc, etc, etc. Who knows who to trust, bad faith is thrown in with the good argument, the law is interpretable, and the mob can just as easily be wrong as right.

But at the end of the day, it all comes down to this: Do I personally feel Guantanamo should be shut down or not? Do I personally feel that Abu Austraili should be turned over to the Austrailian government or not?

And my opinion on these matters is based solely on my conviction about the probable result of each action to me personally.

If Abu Austraili/David Hicks gets shipped back to Austrailia, would that bother me? Nope. It wouldn’t. I don’t think he would be a threat to me because I trust Australia to act wisely on behalf of itself and the world.

Should Guantanamo be shut down? I don’t know. I wasn’t there when its prisoners were caught, so I have to take somebody’s word for it. Naturally some organizations are going to try to convince me not to take the US’s word for it, but that’s all part of the agitation game. It would take a heck of a lot of agitation for me to believe some jihadi over the word of an American soldier. So by and large it is my conviction that these people are in Guantanamo for a reason, just like most people in jail are in there for a reason. And my conviction is they probably aren’t being tortured. Furthermore, the countries that they would return to for trial if we were to allow their extraditions… well I just don’t trust them to care after my safety. And that’s that.

Thank you and goodnight.

It

Hicks was incarcerated at a time when the so-called “war on terror” was met with a heightened fear from the general public, and the hawkish push not widely regarded as idiocy. That environment gave cover for whatever was done to Hicks – a cover which along with general public sentiment towards the push has ebbed away.

It’s hard not to see Bush and Howard and their cohorts left out of the boat politically high and dry, remaining with a necessary (for them, sadly, as they clearly seem to regard it) result in their favour whatever the human cost.

Their recent ‘assertion’ they’ve been “waiting patiently” to give “their” side of the story as reflected in recent military spokesmanship whereby they openly hope to elucidate the public is crap, evident through the time they’ve held Hicks without giving it until now.

As an issue, this is more than about the legalities of Hicks’ case; indeed, more than about Hicks. The legalities I don’t believe can be removed from the politics of it. While human rights issues are at stake, what also is happening is that Hicks has become a significant fulcrum upon which resides balance of public opinion for the whole Iraq cum ‘war on terror’ cum ‘pre-emptive’ cum bombastic mentality of those world leaders’ deeds. To Australians, David Hicks is a point or a place where various perceived wrongs meet.

In many ways he embodies the whole fiasco: opportunistic-silly, ideologically-silly, and dangerous exploits all round, leading to everyone boxed in.

Likewise, the current Australian Government is forced (by their elective needs) to use this ‘place’ as a way of turning back that ebbed public opinion. On that basis it is almost impossible to imagine Hicks will have a chance to table his side of the story, if indeed he hasn’t been rendered mentally incapable of that already.

Perhaps the best thing which can possibly correct his fate is greater public outcry. But even that is a dubious correction for fair process. Can he at all be tried fairly, outside of a rank military knuckleheaded flagellation?

Howard’s best opportunity now is to vicariously heighten the public hate or uncertainty towards Hicks – a public trial – and attempt to have that sentiment swallow up a drawn out military process beyond the end of the year. Similarly, as a political fulcrum, Rudd can use (yes, we’re down to this) Hicks as a means to throw political weaponry at Howard for policy and personal failings, but must do so without treading on public fears and overall alliance issues – can he do that?

The seminal question really does remain: can Hicks be tried fairly? Hope remains this can be done, and if so, will reflect a greater humanitarian achievement all round.

We know all this. It’s not looking good, but it’s important to keep talking it.

Apologies to Ken if this thread was intended to be singularly about legals.

Bahnisch may not have intended to leave the impression his comment so strongly gives out, that US internal terrorism doesn

I completely agree. I haven’t seen any recent reports or assertions that Hicks is chained to the floor. But it is reported (and not denied) that he spends 22 hours per day in a small cell on his own, and that 21 of the daily 2 hour exercise yard periods he is supposed to get have been cancelled in the last month for one reason or another i.e. in fact he spends 24 hours per day confined in a tiny cell with no human interaction at all. Imagine living like that for 5 years. What would it do to your mind?

Given that the particulars alleged against Hicks are (effectively) that he was a mere footsoldier who didn’t fire a shot in anger against the Americans, there can be no objective necessity at all for such treatment. He is not a key terrorist mastermind. Hicks could and should, as you say, be confined in far more humane conditions on the American mainland. There is no reason not to accommodate him in accordance with the requirements for ordinary POWs, even if he isn’t entitled to POW immunity because he was fighting with a terrorist organisation. And the Australian government could and should be demanding such treatment for him (as well as a fair trial), and demanding his release if the Americans don’t provide it.

Fyodor and Mark

As far as I’m concerned, due process and the conditions of Hicks’ incarceration are the issues. I don’t think we can simply assume, as you seem to argue, that the substantive charges against Hicks are self-evidently false/trumped up, any more than we should assume the correctness of the RWDB position that he is self-evidently guilty as sin and doesn’t deserve a fair trial.

Kevin

Discussing anything with you is a complete waste of time. I won’t be responding to any further comments you make, and any further abusive ones will result in your being placed on permanent moderation.

That

We can only win this war if we have the will to win it – something I seriously doubt!

“The West, have OVERWHELMING power ”

That’s just a silly statement as has been proven by the tough time we’re having in both Iraq and Afghanistan.

Part of what we’re fighting for in this supposed “GWOT” is the rule of law. That means fighting by OUR rules, not the enemy’s. Contra the hysteria of such as whyisitso, we’re not in danger of losing this “war”. Our “existence” is not “threatened”. Ask the average Iraqi or Afghan if their “existence” is “threatened” and they’ll give you a far more informed and realistic answer than you’ll get out of these illiberal paranoiacs.

The fact of the matter is that “we”, i.e. The West, have OVERWHELMING power relative to the fanatics opposing us. Our victory in policing and military terms is certain, but ideologically-motivated criminal organisations such as AQ can be truly defeated only by attacking their legitimacy in the eyes of supporters. This requires moral victory: the demonstration that we DESERVE to win because our ways are manifestly superior to theirs. We can only win this moral victory if we hold ourselves to higher standards than the enemy.

From Hicks himself, totally unsubstantiated.

I have no problem with some restriction of civil freedoms in the kind of military context into which David Hicks injected himself.

What I really hate is
1) The deliberate removal of the whole thing from the rule of law – by doing it all at Guantanamo. Five years without any kind of hearing before an independent magistrate and without basic supervision by people who are not involved in his detention is a complete outrage.
2) The systematic abuse of Hicks. If Hicks were imprisoned for a long long time then even if it were unjust ie if he was not guilty, that would be one of those things that happens even in peace time but particularly in a military context where lots of innocent people are paying the ‘ultimate price’. We’ve got people in jail who are not guilty and it’s terrible, but it happens. But he should be in a prison in which he gets some basic human rights with regular visits from the Red Cross and loved ones. From what one hears he is being systematically destroyed as a human being, being chained to the floor, unable to communicate with people etc.

We have to ask ourselves seriously whether our child-like devotion to lawyer-driven law isn’t a threat to our very existence.

Bahnisch may not have intended to leave the impression his comment so strongly gives out, that US internal terrorism doesn’t exist because few cases can be “proven”. If he really believes that he’s living with the fairies at the bottom of the garden.

That Americans are “cheating” on the rules or “Trashing basic freedoms” is a childish way to put it isn’t it? It’s the Islamists that are doing that. The United States if fighting for you and I and our ability to look at art and talk on the net and meet girls and drink booze and fly kites and walk down the street without having an IED detonating.

What happened was some hotshots in the Pentagon came to Rumsfeld with a new form of coercion that they thought was legal under existing law, Rumsfeld ok’d it. A month later, some Pentagon lawyers decided it maybe wasn’t so obviously legal after all, and Rumsfeld immediately ixnayed the technique pending further inquiry. Your use of the word “torture” is indiscriminate. Your need to demonize those in the Pentagon is hysterical lefty boilerplate. These people are doing their damndest in one hell of a difficult situation.

You contention about the US deliberately bombing civilians in Falluja is a slander. You should be ashamed of yourself. Your compulsion to take the enemy’s side in questions of fact demonstrates the debasement of your character.

Oh, and can we all just call him by his name, “Abu Austraili?” I get pretty sick of people trying to change the words we use for the benefit of their arguments. Did we not read our Orwell? David Hicks by any other name does not smell as sweet.

I have no problem with the state charging an individual, but if they are not prepared to do it under the rule of the law, even with someone pretty repugnant as Hicks is, then I am not willing to give the state the benefit of the doubt.