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.