The Guardian 10 August, 2005
Editorial
Credibility of US military courts
in tatters
Any credibility that the US military court system ever had is steadily being blasted as three US
offices of the military courts set up to try David Hicks have resigned, Captain Paul Willee, the head
of Australia's military bar, US Major Mori who is a military appointed lawyer to defend David Hicks,
Mary Gaudron a former judge of Australia's Supreme Court have all condemned the military courts
set up by the US.
Its only defenders remain the US leadership and, of course, the supine leaders of the Australian
government who never miss an opportunity to echo whatever opinion and justification that the US
leaders hand down.
Paul Willee told the Melbourne Age that "this is a system in which one side writes the rules,
chooses the members, makes all the decisions and then reviews their own decisions. There is no
better example of a rigged trial."
In response to the claim that the military court procedures have been changed following
representations by Australian government Ministers, Major Mori challenged the Australian
government "to identify one substantive change that has made the process fairer since the time
these emails were written" (that is the emails in which three US military lawyers
resigned).
The claim by Howard that if returned to Australia, David Hicks would "go free without answering in
any way for those allegations" because the anti-terror laws were introduced after the alleged crimes
were committed has also been disputed.
Two Australian academics, Professor George Williams a leading constitutional lawyer and Devika
Hovell, a former associate to a High Court Judge, say he could be charged under the Crimes Act or
the Geneva Conventions.
In other developments which show that the US is squirming over the international criticism of its
operations at Guantánamo, arrangements are being made to return Afghani, Saudi Arabian and
Yemeni prisoners to their home countries, providing they are kept in prisons there. It is even
offering to build a prison for the Afghani government. The torture of prisoners may well continue in
these countries but the aim of the US is to spread the criticism.
Max Waxman, the US deputy assistant secretary of defence is quoted in the Washington Post as
saying that "We, the US, don't want to be the world's jailer. We think a more prudent course is to
shift that burden onto our coalition partners". It is hard to imaging a more cynical
statement.
At the same time the Washington Post declares that these arrangements are the "first major
step toward whittling down the Guantánamo population to a core group of people the US expects to
hold indefinitely". As far as the US authorities are concerned all those held for years in US custody
are guilty. Most have not been charged with any crime and have not been tried. In these
circumstance what chance has David Hicks of getting a fair trial or of being acquitted given the
spinelessness of the Australian government? He is already regarded as guilty and faces
imprisonment "indefinitely".
Amnesty International has made even more serious charges that "the US is holding an unknown
number of detainees in secret, incommunicado custody in unknown locations and unknown
conditions. Amnesty International has received reports that in the context of the 'war on terrorism'
the USA has established secret detention facilities in a number of countries. These could include
Jordan, Pakistan, Egypt, Thailand and Afghanistan and in the US base on the British Indian Ocean
territory of Diego Garcia."
In its 10-page report Amnesty lists the testimony of a number of persons who have been sent to
destinations unknown to them, tortured and moved on secretly to other places of detention and
torture.
All of this is in violation of international law. The UN Declaration on the Protection of All Persons
from Enforced Disappearance states: "Any person deprived of liberty shall be held in an officially
recognised place of detention and, in conformity with national law, be brought before a judicial
authority promptly after detention…"
But international law clearly means nothing to the governments of the US and Australia who have
torn up all rule books and imposed procedures that are in line with their objectives. Everything is
being justified by the "war on terrorism".