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?