Five years punishment for David Hicks: it's quite enough!
Phillip Ruddock, an Attorney-General who is 'grossly inaccurate', misleading in argument, in breach of the standards of the Australian criminal code, and who misrepresents the law? Ask former chief justice Alastair Nicholson and Queens council Lex Lasry!
IMAGE: thanks to Bill Leak and The Australian
Alastair Nicholson: Why the Attorney-General is wrong on Hicks
Alastair Nicholson is a former chief justice of the Family Court and is an honorary professorial fellow at the Department of Criminology, University of Melbourne.
THE article by Attorney-General Philip Ruddock, "Why he can't return" (Sunday Age, January 7) is both disingenuous and grossly inaccurate in a number of respects.
First, there are gross inaccuracies as to the new military commission process set up by the US Congress following the US Supreme Court finding that the first military commission was invalid.
Ruddock considers that it will provide a fair trial. This is perhaps not surprising since Ruddock was equally convinced of the fairness of the first military commission process before the US Supreme Court finding that it was unfair and illegal. He was wrong then and he is wrong now.
In his article, Ruddock sets out a list of what he describes as fundamental safeguards contained in the new process.
Four of the first five "safeguards" are stated to be:
None of these "safeguards" operate in the way that would be required in an Australian (or indeed American) criminal court.
As to the right to be present, s949d (f) of the act setting up the commission provides for an accused to be excluded from certain evidence presented at a trial on security grounds and for the protection of sources, methods or activities by which the evidence was obtained.
There is a discretionary provision for providing a "summary" of such matters.
Accordingly, the accused's right to be present or to test the evidence is illusory. He may be convicted on the basis of evidence of which he is unaware and to which he is unable to respond.
This would be unacceptable in any criminal court in Australia or the US.
As to the right to cross-examine, the act permits the introduction of hearsay evidence, which if withheld on security grounds may not be available to the accused.
If it is made available, such evidence is only inadmissible if the accused demonstrates that it is unreliable or lacking in probative value - a virtual impossibility if the maker of the statement relied on is not present for cross-examination.
Again, no Australian or American criminal court would permit the calling of such evidence or give it credence.
It is also clear that the accused may not have access to all evidence that the prosecution intends to adduce at trial, as Ruddock asserts. This is a flaw that the US Supreme Court found to be fundamental in its Hamdan decision. The flaw remains.
As to the ban on evidence obtained by torture, evidence obtained by coercion falling short of torture may be admissible if the military judge considers that it may have probative value.
Coercion in this context may well include "water-boarding" (simulated drowning), sensory and environmental manipulation (wall-standing and hooding, temperature extremes, deprivation of clothing etc).
These procedures are, or have been, permitted by US interrogators and not classed as torture. Indeed, Ruddock seems untroubled by them.
The common law has for centuries regarded statements obtained by coercion as inherently unreliable and demands that statements must be voluntary before they become admissible. The abrogation of this principle in this case is unacceptable.
Ruddock also asserts that the accused has the benefit of an appeal process right up to the US Supreme Court.
This is misleading because the appeal provided is very restricted and bears no similarity to an ordinary criminal appeal. It is confined to whether the tribunal has complied with the legislation.
He has also ignored international (and Australian) legal requirements for a fair and regular trial, which include essential guarantees of independence and impartiality, a fair hearing and a requirement that a detained person must be brought to trial as rapidly as possible.
The military commission trial that is proposed lamentably fails the fair trial test, not only for the reasons above but also because it cannot, by its very nature as a military tribunal convened and selected by the executive, pass such a test.
Geoffrey Robertson has rightly compared it to that of a trial of a person tried for an offence against a policeman, being tried by a jury of policemen headed by a senior police officer, all of whom are all selected by the commissioner of police and being the subject of a review by the commissioner. The European Court of Human Rights took the view that the presence of a military judge in a trial of a person accused of actions against the military could not be regarded as a fair trial in the 2003 case of Ocalan v Turkey. The same applies here. How can the system put in place by the US even approach the requirement of a fair trial?
Further, the delay in excess of five years in bringing Hicks to trial breaches all international legal norms. There was a 2½-year delay before Hicks was initially charged. This was of itself unacceptable.
With the Supreme Court having found that the system under which he was charged was illegal in July 2006, new legislation setting up a military commission was passed by Congress and signed by President George Bush on October 17, 2006, and he still has not been charged with any offence.
Any attempt to try him now is clearly in breach of the standards provided by division 268 of the Australian Criminal Code, which adopts international criminal court requirements. Arguably, urging that such a trial takes place, as Ruddock continues to do, is itself a breach of the same code.
Apart from misrepresenting the law, Ruddock's article also contains a number of serious factual errors.
First, he asserts that Hicks' position is different to that of certain British citizens released from Guantanamo Bay at the request of the British Government because none of them had either been charged under the military commission process or been designated as eligible for trial at the time of their release.
The fact is that two of the nine British citizens who were released, namely Feroz Abbasi and Moazzam Begg, had been designated as eligible for trial along with David Hicks and three other foreign nationals, according to a US Defence news release of July 3, 2003.
This led to immediate representations from the British Government to the US and the suspension of proceedings against the two British detainees in July 2004, leading to their eventual release on January 25, 2005.
Had the Australian Government acted similarly, there is no reason to suppose that the position of David Hicks would have been any different.
Next Ruddock asserts that the US had made it clear that a detainee would not be repatriated unless he would be prosecuted and that this was not possible under Australian law at that time.
This cannot be correct because not one of the nine British citizens released from Guantanamo Bay were charged with any offence in Britain. Included were Abbasi and Begg, who like Hicks had been declared by US authorities to be eligible for military commission trial.
They were flown back to London on January 25, 2005, arrested by police on arrival and questioned before being released the following morning without charge. It is hard to see how the position of Hicks on release would have been any different.
Finally, Ruddock fails to address the denial by US authorities of a request by Hicks' legal team for an independent assessment of his mental condition by a senior Melbourne psychiatrist, Professor Paul Mullen, who had previously visited him in 2005.
Such a denial removes a fundamental right from Hicks, namely the right to present evidence that he is unfit to plead by reason of his treatment while in detention, which is also relevant to the issue of undue delay.
It is indeed unfortunate that the Australian Government has failed to undertake its basic duty to protect an Australian citizen and doubly unfortunate that it should resort to "spin" in order to defend itself, as the article by Ruddock demonstrates.
An important issue of principle is involved that transcends issues as to the culpability or otherwise of Hicks, and that is the adherence of the Government of Australia to the rule of law and its obligations to its own citizens.
On the evidence, it appears that the Government has failed to comply with its obligations.
Negligent or just ineffective
ON JANUARY 7, 2007, federal Attorney-General Philip Ruddock mounted a defence of the Australian Government in the case of David Hicks. The defence, in The Sunday Age, fails. It fails as much for what it does not say as for what it does.
The credibility of the Australian Government is drained by the fact that it apparently never considered that the original military commission process might have been unfair. Hicks was left to the mercy of that process.
The primary point now made by the Attorney-General is that despite that oversight and assertions to the contrary, the Australian Government has not abandoned Hicks and, in fact, does care whether or not he gets a fair trial. Further, the Government is "deeply unhappy" about the time the process has taken. For more than three years this unhappiness has had absolutely no effect.
In a joint news release with Foreign Minister Alexander Downer just over three years ago, the same kind of assurances were given.
That official release said the Australian Government had "reached an understanding" in relation to the now discredited military commission process established by President George Bush in 2001, and struck down last year by the US Supreme Court in its judgement in Hamdan v Rumsfeld.
And the assurances about that discredited system? Does this sound familiar? According to Ruddock and Downer, the US had assured Australia it would not seek the death penalty in Hicks' case. As well, Australia and the US had agreed to work towards arrangements to transfer Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and US law.
Of course, the hidden catch was that Hicks' pre-trial detention would not be counted as part of his sentence.
The Australian Government was also assured that, based on his circumstances, conversations between Hicks and his lawyers would not be monitored by the US - and of course in the land of "warrantless wire-taps", we would readily believe that!
And then this great step forward - Hicks would be actually allowed to hear the evidence against him and, subject to any necessary security restrictions, Hicks' trial would be open, the media would be present, and Australian officials could observe.
Having outlined the list of pluses, the Australian Government's concluding view about those illegal military commissions? "In these circumstances, we accept Hicks and (former Australian Guantanamo inmate Mamdouh) Habib could be tried by the US, provided that their trials are fair and transparent while protecting security interests. The Government believes that military commission processes will fulfil these criteria."
But the fairness and transparency the Australian Government was so enamoured of was short-lived. In August 2004 I went to Guantanamo as the observer for the Law Council of Australia, and officials of Ruddock's department went too. I thought then, and reported, that a fair trial for Hicks was "virtually impossible". The Australian Government has never publicly engaged with my criticisms of the process as it was then. But in a Government media release of September 5, 2004, Ruddock said: "In order to ensure that both Mr Hicks and Mr Habib receive a fair trial, the Australian Government reached an understanding with the United States that affirmed a number of significant safeguards including the presumption of innocence, the right to silence, the right to defence counsel (including an Australian legal consultant) and a guarantee that the indictees would not face the death penalty. Following our observations of the preliminary hearing, it appears that some improvements are required to ensure that understandings on procedural fairness are met in practice."
In 2005, Ruddock's department (perhaps wisely) stopped issuing media releases on the topic of David Hicks. After all, what could they say?
But on July 18, 2005, when asked directly whether Hicks could get a fair trial, Ruddock said: "We did look very closely at the framework of law surrounding military commissions to satisfy ourselves that those who appeared before it would be able to have effective legal representation; that the burden of proof would be beyond reasonable doubt. In other words, that it would include the fundamental safeguards that we would expect in a criminal trial, but also have available to it the opportunity to protect sensitive security information, which is the reason for having trials in that form.
"I later made it clear that there were some procedural issues, which we took up with the United States, and those matters have been addressed ... If there are no further appeals, the military commission process should be in a position to proceed."
Well, they did not look quite closely enough. On June 29 last year, the Supreme Court delivered its judgement in Hamdan v Rumsfeld. The court held, among other things, that the military commission under which Hicks was to be tried lacked the power to proceed because its structure and procedures violated both the US Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.
The Attorney-General of Australia and the Prime Minister (also a lawyer) and their full-time departmental officers missed those issues.
So in the second half of last year, Ruddock began to issue media releases detailing the assurances about the case he was getting from the US Attorney-General, Alberto Gonzales.
Gonzales will be remembered as the White House lawyer involved in the writing or assessment of the "torture memos" in 2002. As The Sydney Morning Herald reported in February 2005, during that time Gonzales advised President Bush that "...foreign fighters captured in Afghanistan and elsewhere should not have prisoner of war status under the Geneva Conventions", which in a war on terrorism he considered "obsolete" and "quaint".
Hicks has been vilified in the cause of diverting attention from the unfair process. He has been accused of causing his own demise by daring to challenge the same unfair process.
Now the Military Commissions Act, recently passed by the US Congress and on which Ruddock relies in his "defence", continues the controversy by its effective abolition of habeas corpus as a means of challenging the legality of detention by the executive government, and the legislative torpedoing of the protection of the Geneva Conventions.
What does our Attorney-General think about these things? Does he think about them at all?
More than five years on, and with no timetable for a "trial", the Australian Government has either been negligent in the way it has put the case to the US Administration or, at the least, embarrassingly ineffective.
This case just simply has to be brought to an end by Hicks' repatriation. Is there no one within the Australian Government with the idealism and fortitude to insist this happen?
Lex Lasry is a Queen's counsel.
Philip Ruddock: Why he can't return
Philip Ruddock is the federal Attorney-General.
In the campaign to gain the release of David Hicks, it has been alleged that the Government has abandoned him, does not care whether he gets a fair trial and has done nothing to secure his release.
The Government believes that Mr Hicks should be tried. The Deputy Leader of the Opposition said exactly the same this week. We are deeply unhappy about the length of time this has taken, but those who say more could be done for Mr Hicks are perhaps unaware of the extent of the assistance he has received.
The Government has already arranged 17 visits by Australian officials to check on Mr Hicks' welfare. That is not neglect of an Australian citizen. We have spent more than $300,000 on Australian legal consultants assisting Mr Hicks.
We follow up matters raised by Mr Hicks, his family or counsel and have sought further information from US authorities on Mr Hicks' conditions of detention and access to appropriate medical and other care.
We are now seeking further information on his mental health after his father, Terry, expressed his concerns to me at a recent meeting in Adelaide. Mr Hicks snr has said that he understands there is a limit to what the Government can do, given the United States' continued determination to try his son.
Mr Hicks' US lawyer, Major Michael Mori, and others say it would be as simple as picking up the phone and asking for David Hicks' return. It is not that simple. The US made it clear early on that a detainee would not be repatriated unless the detainee would be prosecuted. Under our law at the time, that was not possible.
That is what distinguishes the case of David Hicks from that of Mamdouh Habib. We made the same, continuous representations regarding Mr Habib - charge him or release him - and his return was arranged immediately after we were told he would not be charged.
The comparison is often made to Britain and the fact that Britain's citizens have been released. Why, they say, can't David Hicks be brought back to Australia?
The simple answer is that Mr Habib and the released UK citizens had neither been charged under the military commission process nor been designated as eligible for trial. Mr Habib and the last of the British citizens were released on the same day - January 11, 2005. There are British residents who remain in Guantanamo Bay and there is a 20-year-old Canadian who has been there since he was 16.
I have also heard those advocating for Mr Hicks say he has not been charged. Mr Hicks was charged with conspiracy to commit war crimes, attempted murder and aiding the enemy in June 2004. The charges expired when the US Supreme Court ruled the military commission process was unlawful because it was established without the express authority of Congress. It now has the authority of Congress, with a new act on military commissions passed last year.
I should address the argument that Mr Hicks could have been charged with offences under Australian law. The best legal minds at the Government's disposal remain adamant that is not the case. That decision is more complicated than simply identifying a criminal offence. The likelihood of success, available defences, the facts in question and the rules of evidence in Australian courts must all be considered.
The Australian Federal Police considered offences existing in 2001, including offences set out in the Geneva Conventions Act 1957 and the Crimes (Foreign Incursions and Recruitment) Act 1978. The AFP asked the Commonwealth Director of Public Prosecutions to consider all available evidence regarding Mr Hicks' alleged involvement with the Kosovo Liberation Army, Lashkar-e-Taiba and al-Qaeda/Taliban forces. The DPP advised that prosecution was not available.
I have also heard the argument that Mr Hicks should be brought home and placed under a control order.
As the Government made clear when they were introduced, control orders are a necessary tool to safeguard the community in circumstances where criminal offences may not be made out.
A criminal trial is preferable to relying on a control order and the US has consistently said it will charge and try Mr Hicks.
In the meantime, the Government will continue to focus on ensuring that any process is as fair as possible. We have secured specific assurances regarding Mr Hicks: he will not face the death penalty and if he is found guilty he will be able to serve out any sentence in Australia.
I have heard the Opposition Leader, Mr Rudd, and the former shadow attorney-general, Nicola Roxon, say the process is unfair because there is no presumption of innocence, no right of appeal and no right of an accused to know all the evidence against them.
The new military commission process makes it quite clear they are wrong on all counts.
In fact, the new act incorporates a number of fundamental safeguards, including:
The provisions are very clearly set out in section three of the act passed by Congress.
The announcement during the week by the US Office of Military Commissions that Mr Hicks would be among the first detainees to be charged is welcome.
The regulations covering the military commissions must be proclaimed by January 15 and the US Attorney-General, Alberto Gonzales, has assured me that soon after that date Mr Hicks will be charged.
I have been criticised for suggesting that part of the reason Mr Hicks' trial has been delayed is because people have mounted legal challenges to the military commission process. That is their right, but it does not mean people can then argue "because it has taken so long he should be released".
I have also heard it said that I have been urging an Australian citizen to plead guilty. I have done no such thing, but I have outlined options - and the US system allows for plea bargains.
Mr Hicks' "day in court" might be delayed by further challenges. Indeed, it is Major Mori's duty to explore and advise his client on any possible challenge to the lawfulness of proceedings, the likelihood of success and the consequences if they fail.
He has been a very effective advocate and has vigorously pursued his client's interests. I hope that when charges are brought he does an equally effective job of defending him inside the commission.
Earlier this week, our chief military prosecutor criticised the delay in the Hicks matter. Some were surprised when I agreed with her. The fact that a trial has not yet occurred frustrates us and the Government will vigorously protest against any hint of institutional inertia.
The US Government has given us certain assurances. We expect them to be honoured.