The Guardian 24 January, 2007

Guantánamo — the injustice continues

Defending the indefensible, Foreign Affairs Minister Alexander Downer last week in a press conference in New York City announced that David Hicks, the man detained without charge for five years in the US prison in Guantánamo Bay, was not suffering from any mental of physical illness. Downer’s claim was based on a three-minute observation of Hicks by a Canberra-based US Embassy spin doctor during which Hicks did not even speak.

Downer’s statement was followed by revelations that the US and British embassies David Hicks is supposed to have targeted in August 2001 in the Afghan capital of Kabul, were empty at the time. He is now likely to be charged under a newly constituted military commission which his American military lawyer, Major Michael Mori, says has rules worse than the previous commissions.

The charge against David Hicks was part of a charge of conspiracy against him which was dropped when the US Supreme Court last year ruled that the military commissions which were to hear the accusations against prisoners were illegal.

All staff left the two embassies in Kabul in 1989 as civil war broke out. The British embassy was reopened in December 2001, four months after Hicks is alleged to have staked it out. The US embassy was reopened in January 2002.

The new military commission rules allow the use of hearsay evidence and evidence obtained using coercion i.e. torture. This, said Major Mori, meant that David Hicks’ chance of getting a fair trial was zero.

"It’s a fresh coat of paint on a broken down house", he said. "All I want is for David to get a fair trial for a real crime. The real problem is the same people who wrote the previous system created this system."

There is also no provision in the new rules to take into account the five years David Hicks has spent incarcerated in Guantánamo Bay. Describing the military commissions as falling "well short of fair trial standards", the Law Council of Australia said they were "designed to rubber-stamp decisions about guilt that were made long ago."

Writing in The Age newspaper on January 16, Peter Vickery QC, from the International Commission of Jurists in Victoria, stated that David Hicks may not be held in indeterminate detention even under the modern laws of war, and certainly not in the conditions in which he imprisoned at Guantánamo Bay.

A United Nations report on detainees in Guantánamo 12 months ago stated: "Terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in international law. Accordingly, the United States Government should expeditiously bring all Guantánamo Bay detainees to trial … or release them without further delay."

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