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.