“SCOTUS deliberately left an opening for Washington to sidestep the judicial process entirely by simply incarcerating Guantanamo detainees until such time that it determines the war to be over.”

As the war against Islamic fundamentalism will never be over, we can look forward to Hicks being caged like the animal he is until he dies unless, of course, the US does reconstitute military commissions. Either way, justice will prevail

Ted.

I take you back to your article in 2004

"The al-Qa'ida and Taliban prisoners detained at Guantanamo were captured under arms while fighting against US troops and US allies. The concepts of civilian criminal law, such as habeas corpus, do not apply to their circumstance. Moreover, these men belonged to organisations whose violations of the laws of war have rendered them ineligible for prisoner-of-war status under the Geneva Conventions. As illegal combatants who are a constituent element of the global web of Islamist terror, it is entirely appropriate these men should be tried for their crimes by military commissions."

Now that this load of rubbish has been totally proved wrong you move on to say OK Hicks is now suddenly a prisoner of war.

I prefer to get my opinions from people who have not worked as spin doctors for the Republican Party.

BRING DAVID HICKS HOME NOW - Happy 4th of July.

Mr Lapkin,

I have read many comments and analysis in the media in the USA and Britain as well as in Australia and not one has indicated other than the SCOTUS ruling was a severe setback to President Bush's "war on terror" and his entire program to increase the powers of the presidency especially in times of war to something that existed in pre-Nixon days.

To quote just one: Marjorie Cohn (professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists) in an article entitled "A Supreme Rebuke, Bush Loses Guantanamo Case" dated June 30, 2006...

'One of the most critical parts of the Court's decision was its ruling that Common Article 3 to the Geneva Conventions applies to al Qaeda. Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." ‘

Article 3 Common requires that prisoners be treated humanely; it forbids outrages on personal dignity, in particular humiliating and degrading treatment. http://www.counterpunch.org/cohn06302006.html .

President Bush has now to negotiate with congress a law to cover the inmates of Guantanamo and it could take some considerable time. Even when passed into law it will undoubtedly be contested once again to the Supreme Court.

Foreign Minister Alexander Downer and Prime Minister John Howard will sit on their hands, and do nothing as David Hicks, rotting in appalling circumstances for the last 4 and a half years, will remain incarcerated.

You might be willing to sell your fellow Australian’s human rights and accept the Bush administration’s attitude that ‘the man is guilty, trust me’ but there are far more Australians that having seen what President Bush’s word is worth will insist on David Hicks getting at least the minimum requirements of justice with a fair trial

Mr Lapkin, your derisory opening gambit detracts from your argument. You don't have to live in "upscale urban precincts" and "have contempt for America", as you put it, to be pleased that the US Supreme Court has brought down its finding on Guantanamo. You can be pleased with the decision because it demonstrates that the separation of powers in a democracy is still operative. You can be pleased because executive government is once again called - as it should be - to be accountable. You can be pleased because the Americans will now have to consider alternative handling of a difficult matter. You can be pleased because charges and allegation may now be tested in a more widely acceptable forum.

Leigh, meanwhile will prematurely ejaculate in the depths of his anti-humanity and demonstrate his perverse sense of justice by contemplating David Hicks "being caged like the animal he is until he dies unless".

Leave Hicks where he is or ship him back to Afghanistan. We must assume he is unstable or fanatical and a potential danger to Australia (who is going to pay to monitor his movements if he is back in Australia). He will no doubt start a damages action as soon as he is able as he has a host of lawyers around him. They will all be looking for the chance to collect their silver while posturing as civil libertarians.

Hello there Leigh & FrankGol...
I must say that in my humble view, Mr. Hicks is guilty - in 'copper-speak'...he was caught, and when caught, he was "in company, whilst armed"! However,he deserves his day in court, (the sooner the better) if for no other reason/s :
(a) Justice must be seen to be done; and (b) To afford him the opportunity to explain his actions, in order to perhaps, in some way mitigate his behaviour.
Interestingly, when Major Moro (his Defence Counsel) was recently asked if Mr.Hicks had made certain admissions (in Maj. Moro's presence) with respect to his warlike conduct and intent. Major Moro would not, or could not answer the question. That said, as a grandfather, I FULLY appreciate the feelings and emotions of Mr. Hicks Sr. I further believe, that David Hicks is an extremely lucky young man, to have the benefit of such an erudite and consconscientious lawyer, as Major Moro.
David Hicks apparently wished to live the life of an 'Adventurer' of some type. Well, in the real world, when caught, you pay a very heavy price for your lifestyle.

Sille,

You don't have very much sympathy for your fellow human being do you?

Are you so trusting that without a shred of evidence solid or otherwise you fear a fellow Australian so much that you would have him condemned to one of the most dangerous countries on earth, Afghanistan, based on the word of a discredited US President who has found to have lied not only to his own people but through the UN to the world as a whole?

David Hicks cannot now defend himself. After being locked away in a communist Country for four and a half years, and with little or no visits from family or aquaintances, just how is he going to gather evidence in his defence?
If Australia locked up an American Citizen similar circumstances, the Americans would have 'rescued' him shortly after incarceration.
The weak Australian Government just accepts without question, anything the Yanks tell us!
Guilty or not, there is no JUSTICE in this case.

Lapkin is another Howard toady ready to sell out a fellow Australian without a trace of evidence he ever committed any crime or without once speaking to the lawyers who have run the case in the US or here. I have done both.

He is charged with guarding a bloody tank and was arrested leaving Afghanistan. For god's sake why do the morons have to over egg the pudding to turn Hicks into a one man crime wave.

Let's compare guarding a tank to

1. Bush, Blair and Howard illegally invading an entire nation, blowing it to bits and murdering about 100,000 civilians.
2. Australia locking up 4,500 innocent men, women and children who escaped the Taliban and calling them liars, frauds, queue jumpers and so on. The most famous of those families are the Bakhtiyaris about whom DIMA said on 22 March 2001, "Rakiya Bakhtiyari, Afghan", but still lied and covered up the truth for 5 years.
3. Look at the latest atrocity by US soldiers - the rape, burning and slaughter of a girl believed to be 15 years old and the massacre of her parents and little sister about 7 years old.
4. Haditha.
5. AWB stealing $300 million from the starving of Iraq to finance Saddam Hussein.

Get a grip people. Ted and co would be squealing like stuck pigs if the US did the same thing to a Jew wouldn't they? And I mean no disrespect to the young soldier kidnapped by the Palestinians as they had no right to do such a thing.

But Israel had no right to punish and punish again 1.5 million Palestinians by cutting off their power and water in the heat of summer or any other time.

Thank goodness for the supreme court judgement. As FrankGol indicates, it has restored some of the basic tenets of democracy and human decency, or at least not let Bush run off and blatantly violate them. Heaven help American democracy if the court had found in Bush’s favour. And yet the judgement was a five to three ruling. A bloody close call.

Now article 3 of the Geneva Convention must be upheld….. thank goodness.

David Hicks, and the rest in the Guantanamo pigsty, now need to be tried with highest priority and the shortest timeframe possible, as they have been kept in conditions that are in violation of article 3 for far too long.

What an absurd irony it would be if this good ruling leads to Hicks remaining in incarceration longer than he would otherwise, without trial, which looks very likely.

Sille writes: “Leave Hicks where he is or ship him back to Afghanistan. We must assume he is unstable or fanatical and a potential danger to Australia.”

Horrible. Sille has judged and condemned Hicks despite having no more than the most general concept of his guilt or innocence or mitigating circumstances. He/she should realise that it is a fundamental tenet of our legal system and that of the US, and of democracy, to treat people as innocent until proven guilty or shown to be guilty beyond a reasonable doubt.

We must assume innocence until guilt is formally shown by a lawful court, or a guilty plea is recorded.

For all we know, he was simply on an ‘adventure’ that went a little bit haywire. Perhaps he found himself in a position that he couldn’t get out of without being beaten up or murdered, at the critically wrong time following 9/11.

That’s just complete conjecture. But the point is, we don’t know the full story and we should not condemn him, nor sympathise with a regime that keeps him incarcerated for years without trial

Prior to 1870, captured enemy combatants were simply considered criminals and were either jailed with other criminals, ransomed or executed. It was the United States and Prussia which were the first two nations which signed a treaty giving honourable treatment to captured enemy soldiers.

Today, it is internationally recognised that captured enemy combatants who wear the internationally recognised uniform of their governments, are POW's deserving humane treatment.

In the past, terrorist groups such as the Weathermen, Anarchists, Red Army Faction, ETA or Italy's Red Brigades, which only numbered a couple of dozen local imbeciles, were considered a local law enforcement problem. But today, terrorist organisations like Al Qaida have thousands of members, are equipped with military weapons, and have bases in the most lawless lands on this planet.

These terrorists are not criminals, because criminals do not commit suicide in order to mass murder civilians for political or religious reasons. Neither are they soldiers. They are not representatives of any recognised government, they specifically target civilians, have no regard for the Geneva Convention, and they do not wear uniforms while partaking in "military" operations.

Clearly, a new classification is needed for international terrorists with different standards of incarceration and different standards of prosecution. Hopefully, this will be the legacy of the recent Supreme Court ruling.

Once again, America leads the way.

Ah red, so you're an Amway man? Hm, why are you a redneck? Is it because your family doesn't fork, you think Dom Perignon is a Mafia leader, or you've been fired from a construction site because of your appearance?

Meanwhile an innocent man is subject to the most disgusting and degrading conditions. R I P Democracy

What is wrong with the Aus gov and US reconising the second page of our passport "The Governor-General of the Commonwealth of Australia of Her Majesty Queen Elizabeth the Second,request all those whom it may concern to allow the bearer to pass freely without fet or hinderance and to afford him or her every assistance and to afford him or her every assistance and protection of which he or she may stand in need." dispite of what he has done, dispite of latter change of nationality why has our Government not honored our passport declaration and assisted him.

Sorry Red obviously the US was leading the way in 1899 invasion of the Phillipines were you sent your good old Boys fresh from the Indian campain to socially adjust the Phillipinoes as I read it was no worst than Nanking. US leads the way hey.

I am no fan of David Hicks, but can I ask, what happened to the American found fighting in the same war?
Has he been to court?
John Howard you should be ashamed Sir! after all this foolish man is Australian.
My real fear is under your goverment America thinks for us.

Yes the "American Taliban" as he was dubbed, was given a full criminal hearing, found guilty and sentenced to a term of imprisonment IIRC.

He is certainly no more free than David Hicks is, BUT, some people don't seem to understand that due process does not equal letting someone go free. The American citizen got that justice, the evidence for and against was heard and a decision as to guilt and innocence was made by an (by first world standards) impartial court.

The very fact that one of them has already been tried by the established legal system without problems shows that it can be done.

So question, why does the current liberal government behave as though the Australian citizen should have less rights to due process and a court of law than the American citizen received?

Husmusen

I hope Hicksie makes it home with what's left of his mind intact.

It's not who he is, nor what he may have "done", but what he represents that has them running scared. He represents a part of the great unravelling.

- just as Mandela was the beginning of the unravelling of the South African government, which had become totally corrupted in it's efforts to remain entrenched, so long after it's use-by date.

To dwell upon Hicksie in isolation is to be blind to the sea of criminality in which he floats.

Guantanamo is a node in the CIA network (Prof McCoy):

"Guantanamo is not a conventional military prison. It's an ad hoc laboratory for the perfection of the CIA psychological torture. Guantanamo is a complete construction. It's a system of total psychological torture, designed to break down every detainee contained therein, designed to produce a state of hopelessness and despair that leads, tragically, sadly in this case to suicide."

Now, simply Google "CIA + drugs" and you will find out how the CIA supplements it's already bloated black budget. Google "Afghanistan + opium" to find out how their latest investment is appreciating.

In order to make this work, a covert system of transport and distribution is required which can island-hop across national boundaries and avoid inspections. Such a system exists.

It is called "RENDITION". Get it? Game, set and match.

If you had been to Northern Afghanistan in person, you might even know something of this operation first-hand. It makes you think, doesn't it?

*

Alexander and the DFAT boys, if you are reading this, I want that boy brought home in one piece. In ONE PIECE. Got it?

Go Hicksie - you little bewdy!

Hicks deserves his day in court.

However, as an Australian, it should be a kangaroo court with Judge Lynch presiding.

Now the charges that David Hick's is facing (conspiracy and aiding the enemy) cannot be proceeded with all we have left is guarding a tank.

If Hicks was guarding a tank he really is a loopy, tanks those things that get blown up by missiles. Why would anyone want to guard a friggin tank?

Now we have no charges, no Australian crime committed and 4 and a half years later he is still in a POW camp.

Bring him home.

David Hicks, if what the USA, and Mr Lapkin, is said is true was caught by allies of an invading army 'under arms', fighting on behalf of what was essentially accepted for some time as the legitimate government of Afghanistan.

It is regrettable that he chose to do this, but at least he did it out of conviction, and as an Australian citizen he broke no Australian law.

Meanwhile, in Iraq we now have armed civilian 'security contractors' serving essentially as mercenaries for the USA and its allies. Serving for the money, not the principle. There are also Australian citizens working, in effect, as mercenaries in Afghanistan, which I understand under the Foreign Incursions and Recruitment Act is illegal.

So we have a situation of an armed combatant, wearing a uniform, not identifying himself as a civilian, but as a member of the armed forces of a state's government incarcerated as a terrorist, whilst mercenaries are free to roam at will with the blessing of the US and Australian Governments. Am I the only one troubled by this contradiction?

Evidence that is extracted by torture is excluded by law courts, because it is worthless. A person can be made to accuse others of anything you want them to with the aid of torture.

Evidence that consists of hearsay is excluded by courts because it cannot be tested in cross examination. Even in cases where the standard of proof is the balance of probabilities, it is excluded. It cannot be used to provide proof beyond reasonable doubt.

Fair trials allow defendants to defend themselves by providing opportunities for them to demonstrate that the evidence against them is false. That requires that they are told what the evidence is, and that they can cross-examine witnesses.

Some of the Guantanamo Bay prisoners now released were accused of committing atrocities in countries they could prove they were not in at the relevant time. Thus at least some of the asseretoins by US authorities were false. There is good reason to demand that the prisoners have access to the evidence.

We will know whether Hicks is guilty, and what he is guilty of, when he has had a fair trial--one in which hearsay evidence and evidence produced by torture are excluded. It will be time then to argue about whether he is evil, stupid or innocent.

Hamlet, you are not alone in your observation. Your posts to these threads are well reasoned indeed. Like you I loath the hypocrisy revealed by the vilification of Hicks and the acceptance of mercenaries if they happen to be on the "right side".

Whether Hicks is guilty or not is not the primary issue, what worries me is:

1. The Australian Government has failed in its duty of care of an Australian citizen.
2. The USA makes its own rules according to its whims.
3. That 'innocence until proven guilty' no longer plays a part in our justice system.
4. That anyone can be held indefinitely without due process of a trial.

Drooge:

Go read the opinion itself. It's easily accessible at the SCOTUS webite. Why rely on secondary material, especially when it is as suspect as the Leftist dogma produced by Marjorie Cohn?

Cohn teaches at the Thomas Jefferson School of Law, an institution so academically mediocre that I have never even heard of it. And the fact that she is "president-elect of the National Lawyers Guild" doesn't elevate her any higher in my esteem. The NLG is a hard-left organisation whose Stalinist members refused to approve a clause in its charter that upheld democracy and condemned dictatorship. Notable NLG member Arthur Kinoy believed that the role of the "radical lawyer" was to facilitate an armed anti-capitalist revolution. And Guild president Paul Harris was fond of quoting Lenin to the effect that legal struggle was a necessary complement to violent revolutionary action.

It’s rather ironic that you rely on the president-elect of an organization with such a tawdry totalitarian past to argue for human rights.

Steve Madden:

I do not say that Hicks is a POW. In fact, I think that the Court’s ruling to apply the "minimal protection falling short of full protection" of the GC’s common article 3 was a big mistake. The Court erred on that point.

But if you people will bother to read the opinion itself, you will find that my argument is accurate - Hamdan was more of a rebuke to the Lefties who have been screaming about Gitmo’s illegality, than to the Bush administration.

The Court explicitly recognized:

• That the 9/11 attacks marked the commencement of a state of war with jihadist Islam
• That within the framework of that armed conflict, the US government was entitled to hold enemy combatants "until the conclusion of active hostilities" (so much for Gitmo’s “illegality”)

While SCOTUS found that the currently military commission format is illegal under statute, the Court almost issued an engraved invitation (see Kennedy’s concurring opinion) for Congress to rectify that condition through legislation. And there are already moves afoot in the Senate to pass bills that would authorize military tribunals.

Hi, to all you good people...
I've carefully re-read ALL the posts with respect to the current disposition of Mr David Hicks. I'm so very saddened to see and hear the absolutely vitriolic language of some, levelled at the Bush Administration.; the Australian Government; other organisations; and individuals, who dare to take, a less sympathetic position with Mr. Hick's current dilemma. Of course, David Hicks deserves his day in court. I don't think anyone would deny him this, including President George W. Bush, and his cohorts. What worries me is how this issue has so, schismatized the Australian people. I remember when they returned from South Vietnam, they chucked paint all over our CO as we marched down George Street in Sydney. I never ever thought I'd ever see such a emotional event (as was Vietnam) so divide us, again. Apparently, the David Hicks issue, is well on the path in doing so. I've been out of the Army, for nearly forty years. I do respectfully suggest however, that in order to effectively defeat terrorism, you MUST remove the 'gloves' altogether. And you definitely can't beat 'em, if you have half of society at home, actively preaching, and campaigning against you, at every turn, and at every measure, that you need to take. Terrorists are not bound by ANY law, nor by ANY morality or ANY sense of common humanity.

I'm so very sorry folks...I just don't believe I know this country anymore...I feel I'm an alien in this, the land of my birth.

Ted.

I have read the judgement and the important thing is that it actually uses the wording of the Geneva Convention "regularly constituted court". That means either a civilian court or court martial. It also says that the Uniform Code of Military Justice applies and that the 4th Article of the Geneva Convention only allows for a special tribunal when these other courts are for some reason not available.

So Hick's is either a POW and has been treated illegally under the Geneva convention or he is not and must be tried. He cannot be tried on the current "charges" as they do not exist under the UCMJ.

I realise that as an Israeli-American you are passionate about this issue but this is Australia, we have a fellow citizen incarcerated and probably tortured for over 4 years and now the charges he faces are proven to be false.

Dissenting opinions in court cases are irrelevant, the court has made its decision, even if you think the ruling was wrong.

Bring Hicks home NOW.

Steve:

I live in Australia. I care about Australia, and I write this as an Australian. You evidently didn't read the opinion closely enough. Footnote 32 says that, the charge of "aiding the enemy" can't be applied to Hamdan because he is a Yemeni national. But then the Court stipulates that it could be applicable to Hicks because, as an Australian, he owes allegiance to a country that had deployed military forces alongside the US. So much for your argument that the charges against Hicks "are proven to be false."

As for your point about the UCMJ, the Code is part of US federal law and is easily amended by statute. As I previously pointed out, there are already moves afoot in Congress to amend the UCMJ and provide the explicit statuatory authorization that the Court said was needed in order to make military commissions legal.

As for Hicks being a POW, the Court did not say anything of the sort. The controlling opinion said that the bare bones provisions of the common Article 3 of the 1949 Conventions applied. That is very different from POW status.

And you are utterly and completely wrong in your contention that Hicks must be released. On page 72 of the decision the Court held:

"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities."

In other words, the Court explicitly accepted the right of the US government to hold Hicks et al until the war against jihadist Islam is over. The decision only related to the military commission process as it is currently constituted, and it even left Congress more than enough leeway to allow tribunals to be reconstituted in accordance with its ruling.

So Hicks is going nowhere fast. Nor should he. He's right where he belongs

Ted.
At least you agree the conspiracy charge was wrong. Time will tell if the “aiding the enemy” charge is legal. I suggest not, this will need to be decided by a court. So now you are saying that Hicks can be charged because he is Australian.

The US is considering retrospective legislation to amend the UCMJ this should be deplored as this is the reason Hicks cannot be convicted of any Australian crime.

The court ruled that the Geneva Conventions apply and Charming Betsy will take care of the rest. David Hicks is a prisoner of war or he should be tried by a “regularly constituted court” not an unlawful commission.

What are our Government doing, allowing a fellow citizen to be incarcerated in Cuba when the only charge , in your view, is that he is Australian.

Bring Hicks Home now.

Drooge,

I assume our security services know more about Hicks than we do? He is certainly no innocent abroad. Maybe they should tell us of his activities and a little of his motives. I maintain we are safer while he stays where he is. Have you heard of Mullah Dadullah the current taliban commander in Afghanistan? I fear there will eventually be Australian casualties there

The author still doesn't get it. If I urge the U.S. (and by extension, Australian) authorities to try Hicks and find him either innocent or guilty it doesn't make me pro-Hicks or pro-Taliban.

My rights are no different to Hicks'. So I'm not doing it for him - I'm doing it for ME.

Oh I get it quite well, bennie. And my primary interest is to enhance, rather than eviscerate, our ability to deter those who would commit war crimes. For international law to have any chance of preventing the next Beslan massacre, it must include draconian provisions that will discourage future war criminals. And to this end we must retain a powerful weapon in our deterrent arsenal: the promise that those who commit illegal battlefield acts will wind up in Guantanamo rather than enjoying prisoner of war commissary privileges.

If the prospect of being tried before a military commission deters even one potential recruit from joining al-Qa'ida's mass murder spree, then the enterprise is morally justified. Thus captive mujahidin must never be afforded the consideration that we afford to honourable foes. Military tribunals are the only ethically and legally appropriate means of dealing with jihadists.

So if you are really concerned with your own best interest, you should be wholeheartedly supportive of tough policies towards captured terrorists.

This isn't the Victorian magistrate's court, nor should it be. War is played by a different set of rules and it is folly to expect that standards of normal jurisprudence should be applied to a situation that arose out of the battlefield. Hicks volunteered for bin Laden's jihad, and was captured while bearing arms in an active combat theatre of operations. You don't treat uncommon terrorists like common criminals. Hicks played at jihad, and now he'll have to pay the piper in the form of a military commission. Don't do the crime if you can't do the time.

Ted.

Who has ever proved that Hicks is a terrorist, I suggest nobody. It is alleged he translated training manuals into english an amazing feat for someone who did not read arabic.

Guantanamo was declared unconstitutional in 1993 and will be again.

You overlook the fact that he is an Australian ignored by our Govt. I think that the SAS were the first troops in Afghanistan. If he has broken no Australian law why do we allow him to be incarcerated. Habib was also called a terrorist but this has been proved false. Let the man come home where he belongs.

Steve:

Your ability to swallow myth over fact is impressive.

For the umpteenth the Court DID NOT rule that Gitmo was unconstitutional. In fact, the majority opinion explicitly recognized the right of the US government to hold al-Qaeda/Taliban. A 1993 US District Court (the lowest rung of the Federal court system) ruling on the detention of Haitian refugees in Gitmo is completely irrelevant to our current situation. Apples and oranges.

The Supreme Court in Hamdan ruled on statutory (as opposed to constitutional) grounds that military commissions were not legally constituted. But the justices expressly left an opening to Congress to authorize military commissions through legislation. And bills to that effect have already been introduced to the US Senate.

Hicks did not break any law on the Australian books at the time, which is why he can't be tried here. But he did violate US law and the law of war. And given that the US has custody over him, they are the ones to decide his fate. And justifiably so.

Hicks boasted in letters to his family that he trained with al-Qaeda and fought with al-Qaeda in Kashmir. He cops to fighting for the global jihad in his own words. There is absolutely no question about his involvement with al-Qaeda.

What part of this don't you get?

Ted Lapkin, I think your primary tenet, as expressed in the article and several posts, is deplorable.

“It is worth remembering that Hicks was a professional Islamic holy warrior who fought for two jihadist movements that spurn every tenet of civilised warfare. And he was captured in an active combat theatre while bearing arms.” (from the article)

How about giving him a chance to present his side of the story before you brand him as a purely evil enemy combatant?

“So Hicks is going nowhere fast. Nor should he. He's right where he belongs” (6 July)

A shameful thing to write, before he has been determined as guilty, innocent, simpletonian or insane, or before a full understanding of intent, possible entrapment or mitigating circumstances is gained.

“Hicks volunteered for bin Laden's jihad, and was captured while bearing arms in an active combat theatre of operations. You don't treat uncommon terrorists like common criminals. Hicks played at jihad, and now he'll have to pay the piper in the form of a military commission. Don't do the crime if you can't do the time.” (8 July)

You label him as a common terrorist. Well Mr Lapkin, you are quite frankly totally out of place in doing that. It is the role of a court or properly constituted military commission to determine that. It is obvious that you have convicted Hicks in your own mind. But wait, what is this basic tenet of democracy that says something like ‘innocent until proven guilty’ or shown to be guilty beyond a reasonable doubt, or after a non-coerced admission or plea?

There is NO WAY that Hicks is right where he belongs. And those of us who believe in democracy or basic decency SHOULD be outraged by incarceration without trial for any longer than adequate time to prepare for said trial.

I don’t believe he should be brought home, but he MUST be tried as soon as possible. It is as simple as that. And we must denounce indefinite incarceration without trial for anyone, whether they be prisoners of war or whatever.

The problem with messr Hicks (& co), is that while they are not guilty of terrorism offences; they cannot be, they have yet to be tried; they are enemy combatants. In fact, I have yet to see anybody try to plausibly deny the fact that a person who is trained by an enemy army (or terrorist organisation) could be seen as anything other than an enemy combatant. Mr Hicks has certainly never denied his having received training from both the Taliban & Al-quaida, although he has attempted to deny ever fighting for them (makes it hard to imagine how he was captured).

None the less, the US is well known for its willingness to overturn Constitutional Law in time of war (so are we, if you doubt it read Latham CJ's judgment in <i>Pidoto v Victoria </i> (1943)<http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/HCA/1943/37.html>).

The problem for Mr Hicks, is did he impliedly renounce his citizenship of Oz when SAS troops entered Afghanistan to fight the taliban? That made him an enemy alien at least, and appears to be Cth position. If so, has he any right to <i>habeus corpus</i> under Australian Law, or even under US law? In our law he could not have, as aliens can be sent to Naaru without access to the Courts & I assume US will try the same argument. Quite frankly, he left the protection of the 'rule of law' by taking up arms against his parent nation, and did so voluntarily.

I don't like it, but I don't like the idea of meeting trained al-quaida fighters in the checkout at Woolworths. He got himself in the mess, he best get himself out.

Inshallah

2 bob

2bob,
One thing you overlook in your comment on Mr. Hicks is that when he trained and joined al Qaeda, he commited no crime under Australian law as it was only AFTER the USA had involved itself in Afghanistan along with our troops did the Howard government declare al Qaeda an enemy organization.
The guy did get himself into this mess as you point out but the question that begs an answer from our present government is why do other foreign countries demand the return of their citizens (notably Britain and Saudi Arabia)and they are repatriated and yet we in Australia allow our citizen(s) to rot in appalling and inhumane conditions in Guantanamo Bay for the last 5 years?

Critics of the Bush administration insist on viewing this through the prism of a peacetime legal system. And that is the primary source of their error.

But the Hamdan decision recognized that the US is at war, and thus wartime rules apply to enemy combatants captured in combat theatres. Even the Court's ruling that the Geneva Conventions apply to Gitmo detainees supports the Bush administration's position that America is fighting a war against jihadist Islam.

During an armed conflict it is accepted practice to detain enemy combatants until the conclusion of hostillities in order to prevent them from rejoining the fight on the other side. And the US Supreme Court explicitly upheld the right of the US government to do precisely that with the detainees at Gitmo.

The arguments that A) Hicks should be released forthwith; or B) that he must be tried immediately fly in the face of legal reality. All these cavils about "indefinite detention without trial" are like saying that the Allies were morally bound to release German POWs before the end of the war.

This is a different sort of war, but a war nonetheless - legally, morally and practically.

Mr Lapkin, can you explain what you mean by "legal reality"? And in what three senses is this "a different sort of war, but a war nonetheless - legally, morally and practically"? (i) legally? (ii) morally? and (iii) practically?

The US position on Guantanamo prisoners was deemed to be legal until the US Supreme Court found it not to be. So does the US fudge it "practically" until it hits upon a "legally" approved solution? That leaves "morally".

Your explanation may throw light on your analogy from hindsight about German POWs which appears implausible.

Drooge,

Certainly I agree, he did not commit any offence against Australian Law. However, neither has Schapelle Corby (at least that she's been found guilty of by an Australian Court), yet she has no right of appeal to an Australian Court. Neither do refugees from around the planet, that are sent offshore under our Pacific solution, provided an appeal as of right from Naaru. However, this man voluntarily left our country to train with, fight for & defend, one of the most appalling regimes (in terms of human rights abuses) in history. Whilst he is now in American custody, if that custody is deemed to be entirely unlawful, I believe that he should be repatriated to Afghanistan and held with the remainder of the Taliban fighters (those that have not already been executed).

I understand that this would be a preferable option for Messr.Hicks, a quick (some would say indencently so) trial, where just having been a member of the Taliban is sufficient to warrant a death sentence, under the current governments version of the taliban's sharia law. Those that escape death, can and are detained indefinately, until the defeat of the taliban.

So in brief, whilst he committed no offence under Australian law, he certainly may have under Afghan law & should be repatriated to Afghanistan & tried immediately.

Inshallah

2 bob

Ted,
Don't get your facts wrong the Bush Administration haven't declared a war on "Jihadist Islam" they declared a war on terror. There is a world of difference as I'm sure you well understand. The Supreme Court’s decision that the Bush Administration must abide by the Geneva Convention is by no stretch of the imagination its support of how President Bush is waging the war on terror. The Geneva Convention guarantees certain rights to prisoners of war (NOT enemy combatants)like freedom from torture and so called rendition. Finally, why is it that countries like Britain take care of their own citizens held at Guantanamo Bay while the Howard government elect to abdicate that responsibility to another country? How can one feel any pride for one's government, one's judicial system and one's country when one sees it prostate itself at the feet of another?

Ted, every person ever held in Guantanamo since 9/11 has been considered to be enemy combatant, yes? Or at least captured in a combat theatre.

But many of them have been released without charge or penalty beyond their period of detention and some rough treatment therein.

So what does this tell us? It tells us that those released were actually not enemy combatants afterall. Or at least it strongly suggests this.

So this immediately tells us that there is a high likelihood that there are still people in Guantanamo who are not actually enemy combatants, and others who might have strong mitigating circumstances.

Either this, or it tells us that the US is willing to step totally outside the realm of law and fairness and simply treat these people as pawns or trading chips in international relations.

Or both. In fact, almost definitely both.

The US prides itself on democracy, but demonstrates something very different. It used to pride itself on treating people better than some of its ‘less civilised’ enemies. But it seems to have lost that ideal altogether.

It is doing itself immense damage with the antidemocratic image projected across the world from Guantanamo. This on top of the most unbelievable events at Abu Graib, and its generally terrible image anyway, is helping galvanise opinion against it, in countries that should be onside, and cementing hatred in those that are ideologically opposed.

I think it is an enormous blunder on the part of the US to detain these people indefinitely without charge and/or trial.

Drooge:

The Authorisation for the Use of Military Force AUMF passed by the US Congress on 18 September 2001 states:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Terrorism is a tactic, and you can't declare war on a tactic. You declare war on the people who attack you. Given that the people who carried out 9/11 were part of a global jihadist network, the AUMF constituted a declaration of war on jihadist Islam.

Ludwig:

Some Gitmo inmates were released after they were deemed to be no longer a threat. And in over a score cases that determination turned out to be wrong - with former detainees being killed or captured in Afghanistan after having rejoined the ranks of the Taliban/al-Qaeda.

The US hasn't stepped "outside the realm of law" at all. Your problem stems from your inability to comprehend the simple fact that the applicable law in these cases is the law of war, not peacetime criminal law.

As for your statement that the US is treating its prisoners like its less civilised enemies - rubbish. The US doesn't decapitate hostages; observers from the International Red Cross regularly visit the Gitmo detainees; and if individual American personnel violate the laws of war, they are court martialled, a la Abu Ghraib and Hamdania. US war crimes are an aberration, whereas with al-Qaeda they are the rule.

But then, I'm sure you would oppose a rush to judgement about the accused Marines, no? After all, haven't you been arguing for due process of law for Gitmo? Or does your concern only extend to al-Qaeda jihadists, and you are perfectly willing assume the worst about America and hang these accused Marines out to dry?

Ted.

Why were the US citizens captured in Afghanistan in similar circumstances to Hicks tried in US civilian courts?

Using your own statements Hicks can only be tried now because he is Australian.

I don't give a rats about what congress authorised "Shrub" to do. I want to know why an Australian is being held by a foriegn government with our Govt washing its hands of the whole issue.

Bring Hicks Home NOW

Ted

“Some Gitmo inmates were released after they were deemed to be no longer a threat. And in over a score cases that determination turned out to be wrong.”

Yes! So why were they released? Because they were being used as pawns in international relations. It had stuff-all to do with their guilt or innocence or proper legal process.

“Your problem stems from your inability to comprehend the simple fact that the applicable law in these cases is the law of war, not peacetime criminal law.”

I don’t accept that there should be a different rule of law in times of peace or war, especially one that is so profoundly different in terms of human rights, basic decency and democracy.

“As for your statement that the US is treating its prisoners like its less civilised enemies - rubbish.”

Excuse me, but it is very close to the truth. The US doesn’t approach the sort of extremes seen in some other countries or organisations….. does it? I wonder just how aberrant Abu Graib really is, for example. Even if that sort of thing is totally out of character, the US still most definitely crosses the line of decency and fundamental democratic values, and would cry foul if other countries did the same to its citizens or combatants.

Besides, as I keep on saying, the US holds itself up as the shining light of fairness, uncorrupted government, and all things good….doesn’t it? How about practicing what one preaches!

“I'm sure you would oppose a rush to judgement about the accused Marines…”

You are sure are you? Well then you completely fail to understand my perspective, or else you are deliberately trying to attribute non-existent contradictions and inconsistencies to me. I call for quick and lawful judgement, in all cases.

You may find this hard to believe, given your tendency to jump to conclusions, but I don’t detest the US. I think that what they are doing on the world stage is a complex mixture of good and bad, of good intentions and headstrong actions, of self-interest and genuine global concern, etc, etc.

Steve:

Yup, the crime of "aiding the enemy" is applicable to Hicks because he is an Aussie - and thus owes allegiance to a nation that is fighting alongside the US. Correct.

And it is also true that non-Americans are not eligible for all the benefits afforded by the US government to its citizens. Thus Hicks is subject to a harsher standard of treatment than John Walker Lind.

So what?

Since its ex parte Milligan decision in 1866, the US Supreme Court has recognized that American citizens enjoy certain rights that are not due to non-citizens. And that is the standard practice of nations throughout the world.

So what's next, letting tourists and backpackers vote in Australian elections? After all, that seems to be your argument - that there should be no difference between the rights of citizens and non-citizens.

Ludwig:

You say that you reject the idea that a different legal standard applies in war as opposed to peace? So does that mean that you think soldiers in combat should be required to read the enemy their rights before shooting them in a firefight or calling in an airstrike? Should SASR troopers in Afghanistan be prohibited from shooting Taliban from ambush without trying to disarm them first?

War is played by a rougher set of rules that bear no resemblence to the conventions of peacetime society. Soldiers receive medals for doing things on the battlefield that would send them to prison if they were done at home.

Your failure to assimilate this fundamental point leads you to ludicrous policy prescriptions that are nothing more than a recipe for getting more of our guys killed.

And as the inimitable George S Patton famously observed: "you don't win wars by dying for your country. You win them by making the other poor bastard die for his."

Ted.
Yes Australia is fighting alongside the US in Afghanistan , so the charge of aiding the enemy of Australia should be an offence in Australia. We should be able to incarcerate him in Nauru or Christmas Island not Guantanamo Bay.

Why should Hicks be the USA’s problem. He is ours. I have no views on his guilt or innocence, these are yet to be tested.

We should look after our own citizens, not depend on the tortuous US legal system. He is our problem.

Bring him home now.

Your comment on tourists and backpackers is beneath your obvious intellect and I will not comment.

Ted, this tendency to jump off to the end of the spectrum doesn’t help your arguments. We are talking about the detention of prisoners and their determination as guilty or innocent. This is the part of law that should not be different in wartime and peacetime. We have not at any time been talking about what happens on the battlefield. Let’s stay focussed.

Guantanamo is the classic crystallisation of why one lawful standard should be maintained throughout war and peace – the long detention of many, who are then released without charge, the long detention of many who are not released and not charged. The release of some who proved to be enemy combatants. The charging and then further long detention of David Hicks without trial. It’s a dog’s breakfast!

It is just the most absurd overriding of democratic principles… by an apparently democratic country.

Even the worst and most blatantly guilty civilian criminals get their day in court, quickly, and know their future immediately. But these men in Guantanamo, some of whom may be innocent (and some of whom may be the worst of murderous low-life), get treated in a much harsher manner than even the worse civilian criminal.

It is beyond outrageous, and as I said earlier, it is doing the US no end on damage, both amongst its ideological enemies and its allies.

Ah Ludwig:

You are now qualifying your assertion that there should be no distinction between the laws of peace and war. Now you are saying that the difference should apply only to "the detention of prisoners and their determination as guilty or innocent."

Ok... I'll play within your newly narrowed parameters. Let's look at the rules of evidence.

For evidence to be admissible in any conventional criminal proceeding, the prosecutors must demonstrate that there was no possibility of tampering. At every stage of the investigation, police and prosecutors must fill out documents that prove an unbroken chain of possession - from crime scene to forensic lab to evidence storage facility to courtroom.

But how can you expect that pristine standard from some 19 year old Marine who finds incriminating intelligence material on the body of a dead al-Qaeda fighter during a firefight? Such documents will be passed on to translators and intelligence officers whose primary interest is not a successful criminal prosecution, but rather the tactical exploitation of any information in order to defeat the immediate enemy. And all of this takes place while the bullets are flying.

You can't isolate the 'crime scene' with bright yellow tape during the middle of a battle. And everyone involved has other things on their mind - such as staying alive and killing the enemy.

In recognition of this different reality, military tribunals have traditionally employed a more flexible standard towards the admissibility of evidence by contrast with conventional criminal proceedings. Thus we see the Nuremberg tribunals, as well as the International Criminal Courts dealing with war crimes in Rwanda and the Balkans, all allow hearsay evidence that is deemed to pertinent by the judges. With a few limited exceptions of course, hearsay is inadmissible in a conventional criminal trial.

This difference is emblematic of a general recognition that the standards of peacetime jurisprudence cannot reasonably be applied to cases arising out of battlefield circumstances. And this is merely one example of how the laws of war and peacetime differ, even in the courtroom context that you cite.

Mr Lapkin, what interpretation do you put on the Pentagon's announcement yesterday that it would now treat detainees in accordance with the Geneva Conventions?

Do you "read" the memo issued by Deputy Defence Secretary Gordon England as a repudiation of the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections?

Do you see any significance in the fact that the White House announced its change of policy in an indirect manner with nothing from the key public figures who normally lead these matters?

In the light of the Supreme Court's criticism of the US for not adhering to the internationally recognised Geneva Conventions, particularly Article 3 which prohibits "violence to life and person" and "humiliating and degrading treatment" of detainees, do you think David Hicks will now be freed from his solitary confinement with no access to reading or legal material? Should he be?

“Ok... I'll play within your newly narrowed parameters.”

Ted, it was you who jumped right outside of the arena of our discussion. I haven’t narrowed the parameters at all.

“You can't isolate the 'crime scene' with bright yellow tape during the middle of a battle.”

You can’t isolate a crime scene or gather clean evidence in many cases in civilian law either.

I don’t have great faith in the civilian legal system. The chances of a judgement matching the crime are compromised by all sorts of things, and the chances of even the best democratic legal system getting it wildly wrong are quite high. But it has still got to be a million times better than interminable incarceration with no hearing or judgement.

I have no problem with the admission of hearsay evidence in any court, just so long as everyone is aware that that is what it is. If it is the best source of evidence in some cases, then so be it.

You go to some trouble to point out how the law of wartime and peacetime could differ in the courtroom context. But the magnitude of differences in peacetime law is so great that it encompass these differences. Again, any perceived differences should not for one moment mean that there is no courtroom proceedings for enemy combatants or alleged combatants, or that their day in court should be delayed for any longer than for civilians.

Ted, I don’t think any of your arguments support the notion that people should be left in limbo in incarceration in a democracy (or anywhere)….. at any time.

I also wonder what position you would take on this whole subject if you thought David Hicks was innocent. You maintained neutrality towards him in the article, but then demonstrated condemnation for him in your posts. This is most unfortunate because it has clouded, or at least given the strong impression that it has clouded your judgement on this issue. It is hard to imagine that you would advocate a system that would keep an innocent person under such conditions.

Ted

Are you feeling so secure in your views today? Hicks as I said is now and always has been a prisoner of war. A position confirmed by your beloved Republican Party (Don't worry I would have skipped the country if my boss was beaten by Hillary Clinton :))

The quicksand of Guantanamo is starting to suck more victims in, after the first tuesday one november it will haunt some forever.

Steve - wrong again. You should really read the material upon which you pontificate before you hold forth. It might save you some embarrassment.

Hicks was not declared to be a POW by the Hamdan decision. The Court declared that Gitmo detainees were eligible only for the "minimal protection falling short of full protection" that is afforded by the GC's common Article 3. That "mimimal protection" does NOT equate to POW status. The Supreme Court majority did not argue that jihadists who fight wearing civilian clothes and who see the deliberate slaughter of civilians as a legitimate tactic of war should be worthy of treatment as honorable combatants.

And I am quite convinced of the rightness of my view (pun intended). My coming to Australia was due to the conquest of my heart by a lovely Aussie damsel, not to any need to "skip the country."

Ludwig:

I disagree that I "jumped outside the arena of our discussion." You stated that you:

"don’t accept that there should be a different rule of law in times of peace or war, especially one that is so profoundly different in terms of human rights, basic decency and democracy."

You didn't originally qualify your statement in any way would limit its application solely to courtroom proceedings. Hence my illustration of the ludicrous implications of your position on the ability of soldiers to fight effectively on the battlefield.

When you later declared that you meant to limit your comment only to "the detention of prisoners and their determination as guilty or innocent," I agreed to stay within your newly specified parameters of argument. And I then proceeded to demonstrate how your argument is flawed, even within those more narrow boundaries.

It's not my problem if your arguments aren't tightly worded enough.

Frank:

I think that the conditions of Hicks confinement should be dependent on his behaviour. If he is cooperative, then I'm sure he'll benefit from more a more lenient regime of treatment. That is no different to the SOP in any other prison, military or civilian.

Ted.

As you well know I am not talking about the Hamdan decision I am talking about the backdoor statement from the Republican Party today. As you have selectivly quoted verbatim the inquiry I know what you know.

Also the evidence that a Canadian citizen in Gitmo was considered a human mop to collect urine and was not allowed to change his clothes for 2 days.

Your views are being eroded as each day goes by.

Bring him home now.

Alright Ted, I appreciate your interpretation on that particular point.

Now, can you present an argument for the indefinite detention in a democracy of people captured in a combat environment? You really haven’t done so to date, if I may say so.

Can you also give an undertaking that if you thought David Hicks was innocent, you would hold the same point of view, which would be to condemn a person whom you considered innocent to detention with no end in sight, and might I say in conditions much worse than those of the average civil criminal or alleged criminal, with about 23 hours a day solitary confinement and no reading material or scant other matter with which to occupy himself?

Ludwig:

Democracy has the right to self-defence against those who would wage war to destroy it. US Supreme Court justice Robert Jackson once wrote that the constitution and bill of rights were not a "suicide pact".

And given the SCOTUS finding that the United States is at war, then warlike rules apply. And in any armed conflict it is SOP to detain captured enemy combatants until the conclusion of hostilities. As I note in my piece, the Supreme Court explicitly recognized the application of that principle to Hicks and his Gitmo cellmates.

We held Wehrmacht prisoners until the Nazis threw in the towel on 8 May 1945. And we can legally do the same to al-Qaeda and Taliban prisoners until we deem the war against jihadism to be over. Yes this is a different kind of armed conflict. But it is a war nonetheless, as I find myself repeating ad nauseum because you refuse to comprehend this fact.

Thus I fail to see how this in anyway detracts from Australian or American democracy.

You don't want to be detained? Don't pick up an AK-47 to fight on the other side. There is no question about Hicks culpability. He admits, and even boasts of, his actions as a jihadist in letters to his family. He's the wrong guy to serve as a poster boy for civil liberties.

As for your hypothetical question concerning what would be if I thought Hicks were innocent - I don't. This isn't a law school classroom, it's the real world, with real world consequences. My primary concern is to prevent these barbarians from slaughtering innocent people.

Even if the information regarding the conditions of Hicks imprisonment are true, they are no different from the treatment of dangerous criminals in civil corrections facilities. The whole concept of "supermax" incarceration has been in effect for well over 20 years for violent prisoners who endanger other inmates or staff.

I'm sure if Hicks were cooperative, he would benefit from a much more lenient detention regime. But if he is obstreperous, obstructionist and hostile, then he won't. Nor should he.

“But it is a war nonetheless, as I find myself repeating ad nauseum because you refuse to comprehend this fact.”

Please Ted, I have not questioned whether this is war or not. I have gone along with your assessment that it is war, although I am inclined to think that it shouldn’t be considered war. Obviously, my point in this debate is that it shouldn't matter if it is war or not – detainees should be treated the same regardless.

You haven’t answered my question; “Can you also give an undertaking that if you thought David Hicks was innocent, you would hold the same point of view…”

Don’t brush it off as being hypothetical, it is an extremely important point. If you are willing to let people that you consider innocent or possibly innocent languish in indefinite detention without trial, which you apparently are, then I must consider your overall stance to be terribly wrong.

“You don't want to be detained? Don't pick up an AK-47 to fight on the other side.”

But what about the potential for those who haven’t picked up a weapon being swept up by opposing forces and detained? Don’t you think that there is a very real prospect of non-combatants being arrested in towns that have become battlefields, simply because they are of the same racial appearance? Afterall, combatants often meld into the communities that they fight in. There is huge scope for innocents being swept up in the sorts of conflict that we see in the ‘war on terror’.

There is also the ominous possibility of one side capturing people that they know to be non combatants simply to make up numbers and make themselves out be more successful than they really are…. and to take prisoners for the purposes of political pawns.

The more I think about it, the more sinister the notion of detention without charge or trial seems.

Ludwig:

Only illegal combatants "meld into the communities they fight in." Maintaining a distinction between that which is military and that which is civilian is the bedrock of the law of war. Anything that undermines that distinction causes innocent casualties because soldiers in an environment where they can't distinguish between armed enemies and civilians tend to shoot first and ask questions later. That is why legitimate soldiers wear uniforms. And that is why using civilians to shield military operations is a war crime. And it is yet another reason why Gitmo detainees are not worthy of treatment as POWs.

You nominally concede for the sake of argument that we are at war. But your scepticism on this point reflects itself in your insistence on looking at this through the prism of conventional criminal justice.

War is a terrible business that, nonetheless, is sometimes the most moral course of action (e.g. WWII). And in war, even when you fight in full accordance with the law of war, innocent civilians will inevitably be hurt. That is a tragic reality of armed conflict.

And just as neighbouring non-combatants might inadvertantly be killed in an airstrike against a legitimate military target, perhaps a few innocents ended up in Gitmo. But on the other hand out of several hundred detainees who have been released, over a score have subsequently been killed or captured after rejoining the ranks of the jihadists.

As previously stated, war is a messy, imperfect business. But the US military maintain a system of review that has resulted in the release of detainees. I would hope that any innocents would be discovered as such and set free. There are no guarantees here. But when set against the larger objective of winning a war against barbarians who deliberately slaughter civilians in order to impose 7th century values upon the world, I would argue that Gitmo is an unfortunate necessity of war.

Ted Lapkin, I don't agree with your basic line of argument but I respect you for your willingness to engage with other posters and engage with those who have responded to your original and subsequent postings. Some people who post articles are never heard of again. Thank you.

I am amused at the term 'enemy combatant'.
Surely one is either a private citizen, or a member of the Services!
Each have seperate courts - although I'm not really sure why.
We cant have and dont want terrorists! but we ought not terrorise private citizens because they might be a terrorist!, that is just as big a crime.
David Hicks should be got out of Cuba, and either bought to justice - fairly, (if thats possible now), or be released.

aussiefella

Have you noticed how the terminolgy has changed regarding Hicks. At first he was an "illegal enemy combatant" or an "unlawfull enemy combatant" this term has now been dropped and he is now called an "enemy combatant".

The powers that be in the defence dept, have now said that all POWs in Gitmo must be treated under the Geneva Conventions.

This means they can only be tried by courts martial as they will not be allowed on US territory.

People like Ted are opposing a court with "fair" rules of evidence because in thier view this evidence cannot be collected properly in times of war. (A view I disagree with but that does not make it invalid).

Conspiracy charges cannot be persued because they are not an offence under the UCMJ. This also applies to aiding the enemy (although Ted may not agree with my interpretation).

So we have a charge of guarding a tank, not a smart thing to do with anti-tank missiles blowing them into a billion pieces.

The American legal system in a ponderous beast but eventually it will do the right thing.

I have battled to understand the logic in your first paragraph Ted. As I said earlier, if there is the prospect of innocents being swept up in this mess, then that is surely a very powerful reason NOT to simply detain all prisoners without some form of legal determination.

The tenet of your whole post is that the possible detention of a few innocents is trivial in the greater arena of war. Maybe so, generally speaking. But it is certainly not trivial for a country that prides itself on upholding democratic values. Guantánamo Bay has become a powerful symbol of injustice and abuse in the US administration’s 'war on terror'. It continues to do them enormous damage worldwide. There is nothing trivial about it. In fact it has become one of the most significant issues in the whole conflict since 9/11.

“But the US military maintain a system of review that has resulted in the release of detainees.”

Really? By all indications, releases to date have got very little to do with individual guilt or innocence.

“I would hope that any innocents would be discovered as such and set free.”

Well! You do want to see some sort of determination of innocence or guilt afterall. Thank goodness for that. So surely the way to do it would be through proper legal process…. and sooner rather than later…. and certainly not an absurd 4 or 5 years after they have been dumped in that hole.

We can have no faith at that the authorities aren’t detaining people that they think are innocent, or that some of those now released weren’t held for an extra year or two after it became clear that they were innocent.

“war is a messy, imperfect business.” Yes, but neither this nor anything you have written should be used as an excuse for interminable incarceration, or for some of the foul treatment dished out in that place

Ludwig:

You state "if there is the prospect of innocents being swept up in this mess, then that is surely a very powerful reason NOT to simply detain all prisoners without some form of legal determination."

Wrong.

The first priority of soldiers in the field to defeat the enemy. And they accomplish this by killing and capturing their foes in numbers large enough to carry the day. The hurly burly reality of the battlefield means that this process cannot be conducted with the clinical precision worthy of a civilian courtroom. It is inevitable that, despite the best efforts of the most moral military, some non-combatants will be killed and some innocents will be incarcerated. Anyone who is deemed to be even a potential threat will find himself with hands tied behind his back with plasticuffs.

For a variety of reasons, the US military has no interest in incarcerating hapless bystanders. So a weeding out process takes place during which intel officers try to figure out who the bad guys really are. But when dealing with a terrorist organisation that hides behind the skirts of the civilian population, this is a difficult task. But once again, the primary objective of the combat forces is not to ensure the procedural protections of a civilian courtroom. Rather, their interest is to ensure that their people won't be shot or blown up. It is a much rougher standard that is mandated by the much less forgiving environment of combat.

The fact is I don't need any "excuse" for interminable incarceration. Despite the Hamdan ruling's major flaws, the Supremes explicitly recognized the legality of detaining enemy combatants until the conclusion of hostilities. That's what nations do to their captured enemies during wartime. And this is war.

If you don't want to end up in Gitmo, don't volunteer to join bin Laden's holy war. And that is precisely what David Hicks did. He danced to the jihadist tune, and now he must pay the piper. Don't do the crime if you can't do the time.

It seems to me Ted that you lump incarceration far removed from the battlefront with battlefield activities in an inseparable manner. But they are very different things.

Of course the battlefront is essentially lawless. But that does not mean that there has to be a lack of determination of culpability of prisoners captured therein, when they are incarcerated in an entirely different environment.

How can you say that my statement: “if there is the prospect of innocents being swept up in this mess, then that is surely a very powerful reason NOT to simply detain all prisoners without some form of legal determination" is wrong?

You concede that: “It is inevitable that….some innocents will be incarcerated”.

But then: “The fact is I don't need any "excuse" for interminable incarceration”. And you go to call them all enemy combatants….despite your concession that there could well be innocents amongst them.

You say: “So a weeding out process takes place during which intel officers try to figure out who the bad guys really are.” Does it? Are you sure, or are you just assuming that it does, or perhaps it is just wishful thinking.

And then you end up with; “Don't do the crime if you can't do the time.” You have fallen back into the mode of ‘everyone who does the time must have committed the crime’, or ‘they’re in Guantanamo, therefore they must be guilty’

You seem to be presenting a mixed message. You show some consideration of the prospect of innocents being incarcerated……but then you fall back on the hardline overview that doesn’t consider innocents or mitigating circumstances.

Ludwig

I have been following this thread with some interest and commend you on responding to Ted lapkin with such patience and perseverance.

As I interpret Ted's opinions, he believes that different rules apply in situations of war. If this view was generally accepted then how can people be tried for war crimes after the battles have ended?

For us to evolve as a civilised species we must be held accountable for our actions in a reasonable and timely manner. The detainees at Guantanamo have not been treated in either a reasonable or expedient way.

I notice how Ted fudges around the question of innocents being caught up in such circumstances. I believe that his hatred of those he believes guilty exceeds reason and empathy. He has already declared Hicks as guilty prior to a fair trial. Hicks has been given worse treatment than civilian rapists or murderers - just for being a bit of a dill.

As a woman who has experienced rape I would rather Hicks be released than any rapist ever. I don't understand why people like Ted exhibit far more antipathy towards people like Hicks than they do to criminals who HAVE been tried and found guilty.

For the cruel-minded, haters-of-democratic-high-ideals folk, like Leigh, and those who think all USA conservatives are malicious, war-mongering, undemocratic bullies please read the following quote from Melvin Laird, Secretary of Defense from 1969 to 1973, Counselor to the President for Domestic Affairs from 1973 to 1974, and a Member of the House of Representatives from 1952 to 1969.

"For me, the alleged prison scandals reported to have occurred in Irag, in Afganistan, and at Guantaninamo Bay have been a disturbing reminder of the mistreatment of our own POWs by North Vietnam.
The conditions in our current prison camps are nowhere near as horrific as they were at the "Hanoi Hilton," but that is no reason to pat ourselves on the back. The minute we begin to deport prisoners to other nations where they can legally tortured, when we hold people without charges or trial, when we move prisoners around to avoid the prying inspections of the Red Cross, when prisoners die inexpicably on our watch, we are on a slippery slope to the inhumanity that we deplore. In Vietnam, I made sure we always took the high ground with regard to the treatment of enemy prisoners. I opened our prison camps wide to international inspectors, so that we could could demand the same from Hanoi. In Irag, there are no POWs being held in camps by insurgents. There are only murder victims whose decapitated bodies are left for us to find. But that does not give us license to be brutal in return."

What were US soldiers doing on foreign soil in the first place? Hmmm.

9/11 was just an excuse. If Hicks had been protecting the tank from the Russians, he'd be Bush's best example of a freedom fighter. It is all a load rubbish.

I have a lot of respect for the Americans whose values are rock solid and hold to the high ground.

Frank:

Thanks for your kind words, our disagreements notwithstanding.

Ludwig:

The logic of your Gitmo argument would seem to be that we should not incarcerate anyone in a system where there is any possibility of error. But your line of reasoning could easily be applied to the criminal justice system as well.

I am absolutely 100% certain that there are innocent people who have been wrongfully imprisoned for crimes they did not commit. Like any other human enterprise, our judicial system is fallible because the people who run it are inherently imperfect. But society has determined that the importance of protecting its law abiding citzenry from the depredations of criminals is more important than the inevitability of a few innocents being unjustly punished.

My argument is that this self-same principle that we all accept in regard to our regular criminal justice system, applies with redoubled force during times of war. Because the scope of wartime danger is much more severe, then the measures that we must adopt to protect ourselves must be that much more draconian.

So unless you are willing to spring the likes of Ivan Millat from prison, I don't think that your argument survives strict logical scrutiny.

Scout:

You obviously are unaware of my views on criminal justice. Let's just say that if I were a judge, I'd be known by the cognomen of "Maximum Ted." I despise jihadists and rapists in almost equal measure.

But if I were you I wouldn't be so quick to yearn for David Hicks release. He volunteered to fight on behalf of a cause that relegates women to 5th class status at best. If Hicks had his druthers, you'd be barefoot, pregnant and in a burka. You could forget about any sort of career. You'd be subject to honour killing at the slightest suspicion of any sexual impropriety or rebellion against patriarchal authority.

Think Afghanistan under the Taliban - the movement on whose behalf he took up arms.

Thanks for the quote.

I have faith in the American people. I administer a forum for my peculiar form of cancer, of the 650+ members (most of whom are in the US) not one has supported thier President. I will repost just one of many from my American friends.

"Shrub and company have proven time and again they have no respect for anyone, any law, any treaty, any understanding, or any convention - nothing! Nothing stands in their way to achieve their own objectives - which everyone in the world knows is payback to all of the big business campaign contributors.

shrub and company lied their way into a war and overtook a sovereign country without the backing of the rest of the world via the United Nations. Why would the Geneva convention be of any interest to them!

I was surprised his policy was ultimately struck down by the same Supreme Court that installed him into office! "

Thanks Scout. I appreciate that.

And thanks to Rancitas for that very pertinent quote from Melvin Laird. This takes us back to the notion of decency and democracy within a country that prides itself on those values (apparently?), and which should not be swayed from them by anything that its enemies do. It is of vital importance in this ‘war on terror’ that the US upholds the highest standards of democracy. Afterall, democracy is very largely what it is fighting for. Guantanamo, Abu Graib and other incidents have very sorely tested the US’ image of rock solid values and high moral ground, in the eyes of millions around the world.

Through this debate Ted doesn’t seem to have placed any significance in the democratic notion of innocent until proven guilty, within a country that basically worships democracy and espouses it worldwide with almost religious zeal.

Let’s face it, the US has nothing to gain and plenty to lose in the propaganda ‘war’ with its continued detention of the men in Guantanamo without trial. Most people agree that it is well and truly time to try them and they are working towards that end. It seems that Ted is amongst very few that don’t see any significance in this action.

Ted, you wrote: “The logic of your Gitmo argument would seem to be that we should not incarcerate anyone in a system where there is any possibility of error.”

What? This is bizarre! I acknowledged a few posts back that civil legal systems are far from perfect (12 July). But, need I say it, they are vastly better than no legal determination and interminable incarceration.

“My argument is that this self-same principle that we all accept in regard to our regular criminal justice system, applies with redoubled force during times of war.”

OK, so we agree that the same principle of protecting the law-abiding citizenry must apply in peace and war. And maybe it is more draconian in times of war, depending on circumstances. But again, this does for one moment amount to a reason for interminable imprisonment without charge or trial. That’s not draconian, it’s barbaric.

“So unless you are willing to spring the likes of Ivan Millat from prison, I don't think that your argument survives strict logical scrutiny.”

Again I say; “What? This is bizarre!”. Milat was found guilty. That makes any comparison completely inappropriate.

Ludwig:

You state:

"I don’t have great faith in the civilian legal system. The chances of a judgement matching the crime are compromised by all sorts of things, and the chances of even the best democratic legal system getting it wildly wrong are quite high."

Yet despite that "high" chance of innocents being wrongfully incarcerated by a compromised civilian legal system, you accept the principle that the protection of society takes a higher priority. Or in other words, the wrongful imprisonment of a few innocents is a price you are willing to pay to minimize the chance that you will be mugged or your sister will be raped.

Thus there is no real disagreement between us in principle, but only in degree. Because we are in a state of war with a global jihadist movement, I believe that we must expand that mutually agreed principle in order to deal with a more accute threat. Even though I concede that there might be innocents incarcerated at Gitmo, I think that the exigent circumstances of war mandate more draconian measures.

Your position is not as distant from mine as you might want to think. The real disagreement stems from the question whether we are, or are not at war. You are sceptical about this proposition, whereas I hold it to be a self-evident truth in the wake of 9/11, Madrid, London, Bali, etc...

Ludwig"I don’t accept that there should be a different rule of law in times of peace or war, especially one that is so profoundly different in terms of human rights, basic decency and democracy"

Ted Lapkin-"So does that mean that you think soldiers in combat should be required to read the enemy their rights before shooting them in a firefight or calling in an airstrike?"

I think Ludwig objected to this extreme interpretation of the argument, as the point was not to say some circumstances of some peace situations may be no different to those of some war situations, but that regardless of circumstance, principles of human rights/decency/democracy underpin the rule of law. I don't think anyone agreeing with this statement by Ludwig would commit them to, for example, thinking soldiers in combat should read the enemy their rights any more than they would be committed to police having to read the rights of a robber opening fire on them before firing back.

Ted Lapkin-(to Ludwig)"...you accept the principle that the protection of society takes a higher priority...(than)...the wrongful imprisonment of a few innocents...Thus there is no real disagreement between us in principle, but only in degree"

I agree Ted, that Ludwig, and most of the posters here, probably disagree with each other and yourself on a matter of "degree". So do we all believe that some "principles" are the reasons for our views, rather than specific laws/circumstances, and that laws are a society's ways of best trying to implement those principles under different circumstances?

If so, for the purposes of this debate, I'm not sure we even need to debate the principles too fiercely (except maybe as they clash), as long as we can all agree they are something like "human rights, basic decency and democracy" and "protection of society".

The issue is indeed then one of degree- are we in war? If so/not, what does that mean? How far do we protect some principles at the expense of others?

(continued below- but my thanks to Ted Lapkin and Ludwig for this interesting and important, yet considered, debate…)

Ted Lapkin-”Yes this is a different kind of armed conflict. But it is a war nonetheless…”

This raises two questions-
-What is war?
-What consequences does a state of “war” have for the balance of “human rights, basic decency…democracy" and "protection of society".

Dictionary meanings can be trite, but “A state of open, armed, often prolonged conflict carried on between nations, states, or parties.” from http://dictionary.reference.com/browse/war will be more useful here than a metaphoric definition of war (A war on “terror”).

Anyway, this definition is good enough for me, so I’d have to agree with Ted Lapkin that the war on jihadism (or more precisely, jihadists) by nations (Australia & USA et al) therefore qualifies as war.

I also agree “that the protection of society takes a higher priority”. If I could be convinced that 1000 innocents had to be tortured to protect Australia from a devastating nuclear attack that would kill millions, and that this was the only way the attack could be prevented, and that the consequences of not torturing these innocents would be worse, I would agree it was the best course of action. Happily, I do not think I’ll have to endorse such a course of action in the near future. On the other hand, if one person was tortured for no other reason than having different views, that is very wrong.

So if I can be convinced that Gitmo does more good than harm, and that this is the only (or best) way that this good can be served, and that the consequences of not having Gitmo would be worse than having it, then I would have to accept it as a necessary evil (like war itself). But these are hardly matters that can be determined empirically; to determine these matters, posters have used law, history, and quotes from famous legal and war figures.

I remain unconvinced that Gitmo is a necessary evil, on the basis of the degree of protection to society it affords VS the degree of human suffering it causes, but I’ll have to wait until next post to expound why…

Thanks Wibble for your take on the issue. Very interesting.

Ted, I appreciate your notion that is just a matter of degree between our views, but I don’t think it is so.

There are some serious differences:

As I keep on saying, nothing that you have expressed seems to justify the notion of interminable incarceration without charge or trial. There is just simply no reason why captives can’t be tried soon after they are caught, especially when they are kept in a stable non-war setting, a continent or two away from the battlefront. They are afterall intensively interrogated, so why not extend this process into legal determination? You don’t seem to think this is necessary at all.

That’s a pretty big difference in our views.

Another really big difference is your willingness to condemn people before they are tried, based on evidence that you simply cannot take at face value…. and in doing so, pay no credence to the fundamental tenet of innocent until proven guilty.

You keep saying that: “The real disagreement stems from the question whether we are, or are not at war.”, and I keep saying that it shouldn’t matter whether it is war or not.

And the other big difference is that you seem to place no significance at all in the contradiction between the US’ democratic doctrine and its antidemocratic actions in Guantanamo.

But I agree, our bottom-line - protecting society and locking away the (real) criminals - is the same.

Ludwig:

And I say that I have repeatedly offered a cogent justification - the exigencies of war. But, of course, because you reject the proposition that we are in a state of armed conflict, you seek to apply the standards and expectations of our peacetime criminal justice system to a realm where they don't belong.

But then, we have been here before.

I think by this point we have aired the crux of our arguments (several times over). I don't see a lot of point in continuing to chase our tails. We'll just have to live with the fact that east will be east and west will be west on this question, and the twain shall not meet.

I appreciate the civility with which you have conducted our colloquy, and I look forward to crossing rhetorical swords with you on other issues.

Cheers,

Ted

Yes I think our debate has reached its natural conclusion

It has been fascinating

Thanks Ted