The Ghost who Walks at Guantanamo Bay

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.”

And here:

“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?

Perhaps it’s because section 948d of the Military Commissions Act 2006 (hastily enacted in the wake of Hamdan v Rumsfeld) purports to make CSRT findings “dispositive”:

… (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. 

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Don Wigan
Don Wigan
17 years ago

“Moreover, he not only expressed approval of Al Qaeda

17 years ago

If a nation doesn

17 years ago

I don’t find Bagaric’s argument convincing at all, but I don’t know how you can describe Gummo Trotsky’s piece as “excellent” when he appears to have completely misrepresented Bagaric’s argument in relation to improperly obtained evidence. I thought that Bagaric was arguing that the complete prohibition of improperly obtained evidence on policy grounds in fact punished the victim(s) and society for the actions of the police or military that actually did wrong, and thus is an inadequate disincentive to future wrongs by the police or military. I assume that he still believes that the improperly obtained evidence should have its probative value and potential for prejudice properly assessed.

17 years ago

There’s been no screaming from the Hicks camp that he should be treated as as POW because they know damn well that the US could detain him virtually in perpetuity completely legally.

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.

Nicholas Gruen
17 years ago

I think it happened to me the other night – which has led me to copy long comments into Word before submitting. But it only happened once, so till I saw your comment I thought that perhaps I had just inadvertently closed the window.

17 years ago

That’s an excellent response Ken!

17 years ago

Thorough and sensible analysis, Ken, unlike that of Bagaric. His deliberate confusion over “rights” and the law of the Geneva Conventions is breath-taking to behold.

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.

17 years ago
17 years ago

“Both sides in any war always believe they are in the right and that the other side is responsible for starting the conflict.”

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

17 years ago

Huh? Ken wasn’t saying that one side isn’t right and the other isn’t wrong about who started a given conflict, he’s saying that the Convention applies no matter what — so that POWs are protected even while the warring parties quibble about who’s fault the war is.

Kevin Schnaper
Kevin Schnaper
17 years ago

I’m not understanding something.

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!”

Danielle McCredden
Danielle McCredden
17 years ago

I think it is certainly legitimate to argue (as many do) that the existing Geneva conventions etc do not properly account for a “War on Terror”-like conflict, or any action against terrorist groups like Al Qaeda. Guerilla warfare, cell-type structures and other responses have had these issues in the past.

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.

Kevin Schnaper
Kevin Schnaper
17 years ago

I’m not trying to “pull a trick” here. I’m making some points is all. And don’t worry your head about how I choose to read your answers. Relax.

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.


Danielle McCredden
Danielle McCredden
17 years ago

From the footage I

17 years ago

“However, it is nonsense to say that to the extent that the current rules are awkward in this situation then we shouldn

17 years ago

My comment #21 was being composed while Danielle’s #20 was being posted. Obviously she and Ken are in serious disagreement about the duration of detention.

Gummo Trotsky
Gummo Trotsky
17 years ago

It might be interesting if Hicks were accorded POW status under the Geneva Convention. Although the convention (allegedly) doesn’t cater well for “Wars on Terror” – i.e. unilaterally declared states of international emergency of indefinite and arbitrary duration – Hick’s status as a Taliban POW is an entirely different pother o’ piscines.

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.


[…] to my previous post, they make a quite damning and convincing case that Hicks was an Al Qaeda fighter not a Taliban one […]


[…] two detailed critiques. Gummo Trotsky detects a pattern of shoddy logic, while Ken Parish does the hard work Bagaric shirked, nailing down Hick