Carmel Egan -
January 21, 2007
THE Federal Government's refusal to bring David Hicks home could backfire with moves in the United States to reinstate the legal rights of Guantanamo Bay detainees likely to further delay his trial.
As Hicks enters his sixth year in prison without trial, Prime Minister John Howard is confronting an election-year revolt by his own back bench over the 31-year-old's treatment.
Despite assurances by Foreign Minister Alexander Downer that Hicks would be tried by a special military commission within weeks rather than months, the introduction of a new bill into the US Congress could delay hearings until next year.
A powerful group of US senators yesterday vowed to overturn President George Bush's abolition of habeas corpus for Guantanamo Bay inmates, which denies them the right to challenge the legality of their detention through the civil courts.
Rebel Queensland National senator Barnaby Joyce said he "didn't care if this is an issue for the federal election campaign". He intended to fight for "one of the fundamental legs on which a democracy stands".
Senator Joyce said it was embarrassing Australia had to rely on the US Congress to defend such a fundamental right.
"You can't have a judicial system without habeas corpus," Senator Joyce said. "The idea of making this an issue solely about David Hicks distracts from what we are really talking about, which is the primacy of a fair judicial system. It is an outrage."
Adelaide-born Hicks was imprisoned in the notorious Cuban detention centre after being captured by Northern Alliance fighters in Afghanistan in December 2001 and handed over to the US military in early 2002. He and other Guantanamo Bay detainees were stripped of the legal right to challenge their imprisonment when the Military Commissions Act of 2006 was signed into law by President Bush in October.
The bill allowed the President to circumvent a decision by the US Supreme Court that had found the original military commissions were illegal.
Leading Democrats and rebel Republican senators have confirmed they will move quickly to challenge the President's abolition of habeas corpus.
A spokesman for Democrat senator Patrick Leahy, who this week assumes the chair of the powerful Senate Judicial Committee, told The Sunday Age restoration of habeas corpus was a top priority and "something I feel very strongly about".
David Hicks' Australian lawyer David McLeod welcomed the move. "Habeas corpus is in Magna Carta and is the basis of the Westminister system," he said.
"The problem with removing it is that Hicks and the other detainees have been precluded from challenging the legality of the (military) commission and their detention until they are convicted. Instead of waiting until 2009 or 2010 to gain access to the civilian courts (after any conviction before the military commission), it could bring it forward to 2008, 2009," Mr McLeod said.
Despite the likelihood of further delays in his son's trial, the decision to pursue the restoration act was welcomed by Hicks' father, Terry. "I think it is great that someone in Congress is going to take this up," he said. "If it does hold up the commission, it will be interesting to see what stand the Australian Government takes, but I know they will just throw it back on David's defence, saying that is causing the delay.
"The President will go all-out to squash this, but at least it keeps the momentum going."
Hicks' American lawyer, Major Michael Mori, doubted the success of the challenge in Congress. "It could take months to get it done, and what if the President vetoes it?" Major Mori asked.
In addition to the abolition of habeas corpus, the commission guidelines released last week allow hearsay evidence and testimony obtained through "coercive interrogation" to be admitted in military commission hearings of non-Americans charged with terrorism.
Major Mori said there was nothing in the recent history of the US that could compare with the stripping of prisoners' rights or the make-up of the military commission.
"We have not done a commission for 60 years," he said.
"Court martials were designed to deal with battlefield and Cold War crimes. Why can't they deal with this? They have to bend the rules to guarantee convictions. David Hicks' life is being placed before an unfair system for (the sake of) politics in America."
Meanwhile, Mr Downer lashed out at critics of his remarks that David Hicks was in good health in Guantanamo Bay.
Mr Downer last week said that someone, whom he refused to identify, had seen Hicks and reported that he appeared not to be suffering mental distress. It later emerged that the person was a media officer from the US embassy in Canberra.
His statement was attacked by Major Mori. "He's being used as a monkey in a cage for people to come to stare at," he said.
Terry Hicks said it was a visit by people who were not qualified to make a judgement on his son's mental health. "They had a five-minute conversation where David was reluctant to pass on any information or really talk to them," he said. "So in five minutes they did a hell of a big assessment on him."
Mr Downer said it was preposterous that he should be attacked for talking about someone visiting David Hicks.
"That's all I said," Mr Downer said. "I made no claims for this person, and I never did. I don't particularly appreciate being abused and denigrated in the context of campaigns that people are running."
He said Hicks' lawyers were not helping his case by attacking the Australian Government and he avoided giving an opinion about the fairness of the new military commissions.
With MARK COULTAN
What is habeas corpus?
Habeas corpus is an ancient common-law writ, issued by a court or judge directing a person who holds another in custody to produce the body before the court. Its most important use is to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. Habeas corpus is recognised in the countries of the Anglo-American legal system.
JOIN OUR CAMPAIGN
The Sunday Age believes that David Hicks should be brought home.
Five years in detention without trial is unjust. To join our campaign email to email@example.com or write
to David Hicks campaign, The Sunday Age, 250 Spencer St, Melbourne, 3000.
David Hicks Case Information