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.