Hicks update and backflip

US military authorities have now published the new Particulars of Charge against David Hicks on the Internet.

Contrary to my previous post, they make a quite damning and convincing case that Hicks was an Al Qaeda fighter not a Taliban one (assuming the Particulars can be proven, and they are certainly very detailed, much more so than the previous ones which I had also read).   The Particulars are quite different from the alleged facts previously in the public arena, most of which emanated from the Hicks camp.  Consequently, in my view Hicks is prima facie properly designated an unlawful enemy combatant (rather than a POW) and can properly be charged with attempted murder.  Speculating on likely outcomes is inappropriate. 

In my view, the proper stance for any Australian government at this point is simply to insist that he be brought promptly to trial, and to protest that some of the rules and processes of the military commissions are unjust and unacceptable. I don’t, however, object per se to admission of hearsay evidence of sufficient probative value (after all, European civil law admits such evidence as a matter of course), nor even evidence obtained through some coercive means (subject to Bunning v Cross or similar evaluative processes).  I have no problem at all with the argument that people who volunteered to fight with a murderous terrorist organisation like Al Qaeda, especially where they chose to do so in full knowledge of the September 11 events and Al Qaeda’s alleged involvement in them (and that is the case against Hicks), deserve to feel the full weight of the law and do not have a persuasive claim simply to be released and repatriated to Australia.

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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45 Responses to Hicks update and backflip

  1. derrida derider says:

    Note that Hick’s team assert that he only went back to Afghanistan after 9/11 to get his family and belongings, and a lot of his behaviour was consistent with that.

    I’m no lawyer, but that looks like a case full of adhocery to me:

    1) How do you go about proving these particulars? The only possible way is by third-hand hearsay (perhaps by the people who sold him to the Yanks for a reward?) and by statements extracted under torture, both of which are rightly rejected by civilised courts as extremely unreliable.

    2) Even if you accept the particulars, how does that possibly rise to attempted murder? There’s no claim that he shot at US soldiers in general, let alone being able to produce any specific intended victims. In fact the particulars carefully refrain from saying he shot at anyone at all!

    I reckon they’re after a plea bargain, with the attempted murder charge being dropped as part of it. That would save the face of both the US and Oz governments. If Hicks doesn’t agree, then they’ll make sure its a real kangaroo court – they’re desperate for some sort of vindication.

    The whole thing stinks.

  2. Ken Parish says:

    Third hand hearsay would certainly be a problem. Moreover, the European civil law analogy I drew is potentially misleading. French etc judges are trained over a lifetime in a system involving reception of hearsay evidence, and have a very sophisticated system of rules and discretions which ensures that such evidence is considered fairly and objectively. The continental system observes rigorous judicial independence and separation of the judiciary from the executive. None of these safeguards apply to the new revamped US military commission system, which is a part of the American military without many of the independence safeguards that apply to courts martial.

    However, I strongly suspect that most of the evidence against Hicks will have been elicited from interrogation of Hicks himself and other Guantanamo captives i.e. much of it won’t be hearsay, but whether it was extracted through torture of improper threats and other coercive means is less certain (cf the Jihad Jack case). The Americans have denied that Hicks was ever tortured, but whether he was subjected to forms of coercive treatment that other countries regard as torture but the Americans now don’t, is another question. Similarly with whether any evidence against Hicks from other prisoners was extracted through coercive means. This aspect could be dealt with by proper exercise of a Bunning v Cross-style discretion which weighs the factors militating for and against admission of such evidence. But again that could only be done by a Bench of unimpeachable independence and impartiality, which does not describe the US military commission system.

  3. MrLefty says:

    Retrospective charges are fundamentally unjust. The court process being put in place is fundamentally unjust (eg the defendant being unable to hear evidence put against him, indeed!).

    And there’s something incredibly fishy about any charges that require five years of pre-trial detention.

    This is not a justice-finding exercise; it’s a face-saving exercise.

  4. Austin says:

    What are the max. penalties for these charges?

  5. Ken Parish says:

    “Retrospective charges are fundamentally unjust.”

    I agree. I haven’t dealt at all with the second charge against Hicks, namely giving material support to terrorism. It is the retrospective one. I don’t have a problem with attempted murder charges being pursued against Hicks. I do have a problem with the delay, especially given that much of it has been caused by the Americans’ ongoing attempts to force an unjust (and illegal, at least as to the previous executive-authorised system struck down in Hamdan) court process on detainees including Hicks. Unlike you, I don’t think that leads to the conclusion that we should now demand Hicks’ release. I think we should demand prompt trial under a just system, and demand release only if that isn’t forthcoming.

    A new Labor government should certainly adopt that position (I doubt that Hicks’ trial will have taken place before the election is decided), and should demand Hicks’ repatriation if the Americans continue to refuse to implement a fair, independent, impartial court process. He can then be dealt with here under a control order with stringent conditions, assuming he can’t be charged here as Howard asserts. I must say I don’t understand why Hicks could not be charged with attempted murder in Australia under the War Crimes Act 1945 (Cth). His situation doesn’t even involve the retrospectivity element held constitutional by the High Court in Polyukhovich. I can make a pretty good educated guess though. Most likely too much of the evidence necessary to sustain the charge was extracted by coercion, threats etc, and could not be saved even by exercise of a Bunning v Cross discretion (as with Jihad Jack Thomas). No doubt that’s why Howard refused Rudd’s request the other day to release the legal opinion advising that Hicks could not be successfully prosecuted in Australia.

  6. SJ says:

    How’s this supposed to work:

    …Hicks… a person subject to trial by military commission as an alien unlawful enemy combatant, did, in or around Afghanistan, from on or about September 11, 2001, through in or about December 2001, attempt to commit murder in violation of the law of war, by directing small arms fire, explosives, or other means, with the intent to kill divers persons of the United States, Northern Alliance, or other Coalition forces, while the accused was without combatant immunity as an unlawful enemy combatant who was part of, or supporting, al Qaeda, Taliban, or associated forces engaged in hostilities against the United States or its Coalition partners, and that the conduct of the accused took place in the context of and was associated with an armed conflict.

    The charge contains the admission that he may have been fighting for the Taliban, but tries to pretend that the distiction between Taliban and al Qaeda doesn’t matter.

  7. Ken Parish says:


    You’re correct that they’re still conflating the distinction between Al Qaeda and Taliban to that extent, but the particulars overwhelmingly assert Al Qaeda agency very specifically, even down to giving names of commanders etc.

  8. posthoc says:

    At the time he is alleged to have been surveilling the american embassy it was closed sccording to his civilian lawyer.

  9. SJ says:

    I don’t see how that negates your own argument:

    “Article 4 extends POW protection not only to members of the ordinary military forces of a generally accepted sovereign government, but also to

  10. Ken Parish says:

    My argument in the previous post was that if Hicks was a Taliban militia member, he would probably be entitled to POW status and therefore combatant immunity from being charged with murder etc for normal combat activities. However, he would not be entitled to POW status as an Al Qaeda member, because of factor (d) (which you reproduce). On no reasonable view can Al Qaeda be said to conduct its operations in accordance with the laws and customs of war, which don’t include hijacking airliners and flying them into skyscrapers, suicide bombings generally, or beheading civilian hostages. If the Americans can prove most of the particulars in the draft charge sheet, then Hicks was clearly an Al Qaeda fighter not a Taliban one, and so not entitled to POW status/combatant immunity.

  11. whyisitso says:

    Fine, it’s good that you’ve partly come to your senses, but you’re still missing the main point that this religious nutter thug is part of an outfit that is committed to mass murder and doesn’t deserve all this maudlin sympathy. You’re obsessed with process and haven’t got a clue on the main substance of what he’s about. The security of the non-moslem world is at stake and you’re fretting about his so-called legal standing and rights. I’m far from alone in believing his so-called rights don’t matter a fig. We ARE at war and if we don’t fight it we’ll all succumb to a determined enemy that wants to eliminate us, not to have an intellectual discourse with us.

    It’s just absurb for us to fight under Queensberry rules while the other side is allowed to use the most destructive methods and weapons against us. We have to beat them or we’re all just as dead as the poor buggers in the Wolrd Trade Centre on 9 September 2001.

  12. SJ says:

    Ken Says: “On no reasonable view can Al Qaeda be said to conduct its operations in accordance with the laws and customs of war…

    There’s the difficulty.

    I note that you previously said in respect of point (d) that:

    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

  13. whyisitso says:

    11 September 2001.

  14. SJ says:

    Yeah, yeah. Dresden, Hiroshima, Nagasaki. So what?

  15. Ken Parish says:


    I can’t see how it’s possible to save the Free World by wholesale trashing of basic freedoms. There aren’t very many more basic than the right to a fair trial before an independent, impartial court. Or do you think it’s perfectly OK to assume conclusively that what a prosecutor says must always be true?

    Now, I accept that islamic terrorism poses a real threat to western liberal democracy/freedom, and that some rights may need to be qualified/compromised in the interest of preserving it. But surely we should always err on the side of surrendering the minimum that is consistent with preserving that freedom. No-one is alleging that Hicks is Osama Bin Laden’s key henchman or anything like it. He’s just a dangerous fanatical religious convert dickhead Muzzie footsoldier. If we can’t successfully prosecute him because the Americans cheated on the rules to such an extent that they extracted key evidence by coercive means that can’t survive the extremely fair balancing exercise laid out in Bunning v Cross, then frankly I wouldn’t be terriblly concerned as long as Hicks can be made subject to a tight, long-term control order under anti-terrorism legislation, to make sure authorities can effectively keep a close eye on him. If that requires amendments to anti-terrorism legislation, then I would certainly support reasonable ones. That sort of compromise of basic freedom is proportionate to the threat. Surrendering the entire notion of a fair trial (which is what the US military commission system involves) isn’t proportionate at all.

    Just in case you can’t be bothered looking back at my previous post for the Bunning v Cross factors, here they are again:

    (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.

    If illegally obtained evidence can’t survive this sort of weighing exercise, it shouldn’t be admitted. Note that, if the conduct alleged against Hicks was much more serious than just acting as an ordinary footsoldier against the Americans (and not actually firing a shot), then it might well be that some evidence obtained by threats or coercion might be admissible under the Bunning v Cross test. But it isn’t, so the “let’s throw the book at this mongrel and bugger the rules” argument isn’t very persusasive, at least to my way of thinking.

  16. whyisitso says:

    If we don’t win this war our basic freedoms will be a thing of the past. We simply have to get our priorities right and they don’t include treating the likes of Hicks as anything but an enemy of our society.

  17. Dave Wane says:

    I am of the view that Hicks is a weirdo who went to Afghanistan looking for a “cause”. Islam became his new thing, and he embaced it with gusto.

    He is not the kind of person that should be free to carry out the things that extreme lunatic muslims are capable of.

    However I do believe(based on what information is on the public record) he should have been brought to trial and faced the charges that have been alledged long ago!

  18. That’s a very good and cogent post Ken. I’d planned to do a Bunning & Cross post over at Catallaxy on this issue, but you’ve saved me the trouble.

  19. On the hearsay point, a number of Law profs in the US have pointed out that the collapse of most terrorism trials in the civil US jurisdiction has been precisely because the only evidence the government prevented was either hearsay and/or highly speculative and conjectural interpretations of evidence (for instance, a video taken by a group of Muslims on holiday at Disneyland) by “expert” witnesses employed by the FBI or other security agencies. Much of the other evidence was rubbish informers had made up in order to get tens of thousands of dollars. In almost all instances, the charges were thrown out, or the defendants acquitted. In some instances, defendants were convicted on minor firearms or immigration charges. But it appears that much of the evidence brought before courts adhering to normal rules of evidence has collapsed when tested.

  20. Bannerman says:

    Feeling the pressure to remain forever the sanctified centrist, Ken?

  21. cam says:

    So why wasn’t this PDF produced five years ago? Why aren’t these charges already laid and why aren’t these allegation going to be contested in a civil court?

    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.

  22. Kevin Schnaper says:

    This is quite silly. EVERY captured islamist shouts torture to the skies. Every one. They are taught to say they are being tortured and that the are being discriminated against because of their religion and that the infidel are defiling the Koran on premises. You must be aware of this, no? In light of this, to say with utter conviction, “poor Abu Austraili, he’s been coerced out of self-incriminating evidence”, is just ludicrous.

    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.

  23. whyisitso says:

    Bahnisch’s comment simply demonstrates the absurdity of attempting to try offences committed in the battlefield as if they were domestic criminal offences. It’s hard enough even in the domestic locale to prove terrorism because of the skill and sophistication of organised terrorists. The same thing used to happen with the Mafia. Al Capone had to be busted for tax evasion because his numerous violent murderous crimes couldn’t be “proven” to the satisfaction of lawyers.

    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.

  24. whyisitso says:

    And Kevin, thanks for your really excellent comment.

  25. All along my two biggest concerns with the Hicks case have not related to the points you’ve raised – important as they are Ken.

    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.

  26. whyisitso says:

    “From what one hears he is being systematically destroyed as a human being, being chained to the floor, unable to communicate with people etc.”

    From Hicks himself, totally unsubstantiated.

  27. Fyodor says:

    What Bannerman said. I’m pretty disappointed that you’ve been taken in by the flummery of the US authorities, Ken. The best they’ve come up with is associating Hicks with LET and AQ. Well they would say that, wouldn’t they? Retrospective charges, hearsay evidence, coercion, interminable delay in a legal black hole impervious to habeas corpus…it’s all a fucking travesty of justice.

    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.

  28. whyisitso says:

    “We can only win this moral victory if we hold ourselves to higher standards than the enemy.”

    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.

  29. Ken Parish says:


    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.


    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.

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

  31. Robert says:

    While the legal outlay is much appreciated, gee it’s hard to see this as anything but political.

    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.

  32. D W Griffiths says:


  33. Pingback: Club Troppo » Temporal Foreign Policy

  34. Kevin Schnaper says:

    Playing the “slippery slope” card is not an argument, as it is wholy impossible to quantify all the subsequences arising from any particular matter of interpretation of law into probabilistic statements of any value for the purposes of prognostication. A fear that America is heading down a scary path is just that, a fear. And I think an ungrounded one, especially considering that what is being hashed out by the US side is matters of interpretation, rather than abrogation, of “international law”. And ane cannot prove that an interpretion of law that drifts from some view or other is de facto wrong. One can only contend that this is so, and agitate for one’s own interpretation.

    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.

  35. John Quiggin says:

    Ken, I posted along similar lines to your comment #5. Given the facts alleged against Hicks, the claim that he could not be tried in an Australian court does not stand up.

    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.

  36. Kevin Schnaper says:

    The evidence against Hicks was not obtained by torture, (almost certainly) so he may in fact be convicted.

    He should be repatriated regardless.

  37. Robert says:

    Further to the politics of it if I may, Costello’s smarmy quip about Hicks “not being on a backpacker’s tour” shows the contempt with which the current Government holds not only Hicks but the way it has fallen badly for them. That sort of comment is offensive and inappropriate.

    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.

  38. Geoff R says:

    Been reading Ronald Radosh’s The Rosenberg File which provides a study of a similar period. Julius Rosenberg was an enthusastic would-be spymaster and devoted Stalinist but his actual contribution to Soviet intelligence was wildly overstated at the time, and the evidence linking Ethel Rosenberg to espionage was very weak and the FBI knew this. They were sentenced for treason but were only convicted of conspiracy to committ espionage. But there was an incredible panic about the Soviets having the bomb and about domestic Communists as the enemy within, being Jewish didn’t help either. Internationally the execution was a PR disaster for the US, which obscured Soviet horrors of the time such as the Slansky trial, but the White House insisted they had to ‘send a message’ and that to grant clemecy would have been a back down. Hicks and co. are the recent version of the 1930s amateur spies.

  39. Kevin Schnaper says:

    The Rosenberg File was written in ’84 or so, no? Or do you have the 1997 version with the new intro that talks about all the subsequent revelations. The original publication of that book was before Glasnost, Mitrokhin and the Freedom of Info act which resulted in the release of the Venona decrypts. The original is a bit out of date. You can read Radosh’s 2001 comments on the matter here, (where he directely contradicts your assertion about the purely political nature of the conviction):


  40. Geoff R says:

    I don’t think the Rosenberg conviction was ‘purely political’, but it wasn’t a just outcome. Yes I have the most recent version of the book. Radosh has shifted his moral evaluation over time.

  41. Kevin Schnaper says:

    I think the injustice was in Ethel’s execution. I think Julius’s efforts had very serious consequences.

    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.

  42. Kevin,

    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.

  43. Kevin Schnaper says:

    My point is, claiming torture happened or that torture didn’t happen requires the same burden of proof on the writer, that is, none. Qualifying it with “almost certainly” is a piece of polemical tradecraft – it means the same as “may have” except with added antipathy. I’m just trying to keep everybody on the straight and narrow about what is actually known versus what is surmised.

  44. vee says:

    If it hasn’t all ready been mentioned, a discussion about it is currently on Insight.

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

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