Complete twaddle. There is no war.

Dispassionate analysis? And what legal training and knowledges does Neil James have? I think international and constitutional specialists may offer a more nuanced (and accurate) opinion.

It isn't a bad article, but I suppose there is a few key principles here which the rest of the article hinges upon.

Firstly, if Hicks is detained on the basis that a war is being fought, then it really comes down to the legality of the war.

"What’s more, in international law armed conflict (war) exists as a material fact - thus automatically triggering the limitations and protections of the Hague and Geneva Conventions respectively - not because some individual or some government (or even some lawyer) declares that the war concerned does or does not exist."

This is a fallacy: war exists, so this war is valid?

There can be no doubt the war exists, but the legitimacy of the war is in question - but again, that is a side issue.

The real issue is, that this is a war that has no defined enemy - it is simply a war on terror. You can define it as a war on Al-Qaeda, but such a disparate enemy hasn't existed before - even communism was a collection of states.

I can see no end in sight to this war on terror. Therefore, the 'detainment' of Hicks needed to be reviewed. Five years is simply unacceptable, even Howard is hammering this line.

Who gave it the heading 'dispassionate analysis'? It may have been written with dispassion but passion for the 'services' and the military permeate the whole article. Accordingly the author may be accused of having the same narrowness of attitude that he asserts for the legal people.

So if what Mr James asserts is correct why (if he did) did the PM say he could have him (Hicks of course) brought home.

Unconvincing entirely Mr James ... may be good for the mess and morale but adds nothing to the morals.

An interesting contribution to the debate, but disturbing.

At what point does a war which is not declared by politicians etc ever end, assuming it is against "terrorism" as opposed to a country vs. country, army vs. army situation? Are we to assume that the law is such an ass that "detention" of prisoners may continue indefinitely while ever any person or persons are fighting each other and one declares the other to be a terrorist ?

Do we take it that one country can detain another person for these purposes in any other country of the world, move them to some remote place, and then keep them imprisoned for the rest of their lives (calling it "detention" is mealy-mouthed, given the circumstances)?

If not for the rest of their lives, what's reasonable under this ass of a law ? 5 years ? 10 years ? 20 years ? 25 years ?

Does this "law" then mean that terrorists (the other side of the war) are also justified in taking, detaining, and trying troops on our side ? And keeping them "detained" indefinitely ?

Presumably, if this "law" were in force, Palestinians might have incarcerated Yishak Shamir indefinitely for his part in terrorist activities, including an offence against a UN official, given the war on terrorism in that area of the world (two sided) has been going on for more than half a century.... which might have stopped him becoming Prime Minister of Israel.

Interesting, but ultimately stupid, the idea that we are governed by some sort of "law" that allows indefinite detention whilever someone shoots at someone else in any part of the world.

Presumably means people with guns can determine how long someone stays in prison, just by taking a potshot, and keeping it all going.

Sometimes legal people say really stupid things without thinking them through.

I declare War on Authoritarianism. Now I'll lock some people up until the War is over. But don't worry, I'll be sure to tell you all when the war is over.

A very sensible article. I would personally prefer to see David Hicks detained until Iraq and Afganistan have stable democratic governments. However, I accept that political considerations dictate that this is not likely to happen. Over the next few months he is likely to be returned to Australia one way or the other. Steps must then be taken to ensure that he does not return to the conflict or get involved in terrorism efforts inside Australia.

I read the "comprehensive discussion of the whole complex legal situation surrounding David Hicks" at http://www.ada.asn.au/LatestComment_files/Comment.David.Hicks.htm

I should have been warned by the fact that it didn't contain the
name of the lawyer (if any) who wrote it.

I wonder if he would agree that any Australian soldier captured during
World War II in what became East Germany could legitimately have been
held until the fall of communism there in 1989.

The Taliban (as the Government of Afghanistan, as a body to which one
could give "allegiance") was finished in 2001. Terrorism in Afghanistan (in fact not a big
problem until long afterwards) or elsewhere can hardly justify keeping forces fighting for the then
Afghan government (or anyone else) indefinitely.

He regards " his likely membership alone of the Taliban"
as making him definitely a belligerent, not needing to be tested or
assessed in any way.

He seems totally unaware of the allegations of mistreatment and
torture at Guantanamo Bay, or the reports of ICRC concerns about this,
see eg http://www.msnbc.msn.com/id/6618051/

Neil,I take it that this piece repreasents the views of the ADA and
many members of the ADF.There may be some points in it but they are lost in the verbage.You seem to be trying to have a bet each way.The so called 'war on terror' is a cultural,ideological,religious and therefore a political war, one part of which sees expression through weapons and cowardly but fanatical bombings. The 'fate' of Hicks rests with political decisions,which are now tied up with face saving and impotent example making.
One pace behind these prisoners of the war on terror is the practice of rendition and torture condoned by the current US Administration. Through these practices the US has put itself behind the eight ball in the ideological/political war.
I'd be much more interested in hearing from you on why we need the Abrahms tank,the F35,the Super Hornets and the air warfare Destroyers.How is it that Defence got into the mess over helicopters that allowed $1b to be written off?Why the cover up over Kovco and what is the strategy for Iraq? Finally how can UN forces crush the Taliban when both topography and more importantly the ISI in Pakistan
conspire against them.
All the best
Bruce Haigh

May I suggest all those posting comments read the linked 10,000-word analysis on the complex legal situation applying to David Hicks. Dan Mori has told the ADA that it is the most comprehensive in Australia. This longer analysis, compiled by legal experts on the Laws of Armed Conflict (LOAC), answers, explains or refutes all the points raised by those posting comments thus far.

As a general point people need to realise that international practice generally runs ahead of international law, ie, World War II ended in 1945 but its lessons were not codified in an updated set of Geneva Conventions until 1949. Hicks is unfortunately caught in such a hiatus and this is why a fifth Geneva Convention is urgently needed to cover captured belligerents who (while covered by Common Article 3 of all four existing Conventions) do not qualify for the specific coverage of prisoners-of-war under the Third Convention or as civilian non-combatants under the Fourth.

Nialj: You have inadvertently hit on part of the problem – the lack of specific knowledge concerning LOAC by all Australia’s constitutional lawyers and most of the international ones.

Bushbasher: Your or my opinions on whether there is a war or not luckily do not count. In international humanitarian law (IHL) war exists as a material fact so the limitations of the Hague Conventions and the protections of the Geneva Conventions automatically kick in despite what Governments (or you and I) claim.

TurnRTL: In modern international law there is no such thing as a “declared” or “undeclared” war (and has not been since the UN Charter came into force in 1945). The only two legitimate grounds for war under the Charter are self-defence and if authorised by the UN Security Council. The continuing war in Afghanistan is, in law and probably also in fact, a different conflict to the campaign against internationally proscribed Islamist terrorist organisations. You have assumed the latter only. Finally, the US-led coalition campaign in Afghanistan has, from its inception in September 2001, been a UN-endorsed operation and fully legitimate in international law.

Clearly Neil has not understood.

The growing concern for Hicks is reflective of a growing middle class concern for the authoritarian nature of so-called democratic government. It has not been lost on Australians that the nature and reasons for the continued detention of Hicks are largely political and have changed with relative frequence as American or Australian domestic political requirements have changed.

Howard put Australia's kids in the firing line to protect us against regimes that practiced arbitrary detention and failed to follow the rule of law. Now we find our so called allie practicing these very inhumane practices.

It is only recently - in the last few weeks - that Hicks was held under armed conflict laws. Previously he was an 'Unlawful Combatant' which meant that he was not protected by Geneva or Hague Conventions. The International and American Red Cross were routinely forbidden access to who is now a "Prisoner of War". Letters to and from family were denied, and the torture has been claimed to be routinely used. He could not be held in "Territorial" America because the US Supreme Court held that his detention by the Executive was unlawful. Hardly Geneva Convention.

Neil, is this the sort of regime you will commit you constituents into harms way for?

Newspaper columnists and letter writers who disagree with Neil James and the ADA offer 'fulminating opinions' while bloggers offer 'vituperation' and 'astounding levels of ignorance'. Isn't it amazing how those who just absolutely know they're right and can't tolerate other opinions or see that the 'facts' themselves can be and are selected, marshalled and nuanced?

For example, James says "David Hicks is detained (not imprisoned or incarcerated)..." As if anything significant hinges on the distinction - for Hicks or his jailers. Is this the same semantic game that our distinguished Attorney-General plays when he says Hicks is not in solitary confinement but in "single accommodation"? Bushbasher, when your War on Authoritarianism gets under way, makes sure you just detain authoritarians, don't impriison them.

James says: "In practical and moral terms, releasing Hicks on parole is surely the easiest resolution..." Interesting use of word - 'parole' when a man is not 'imprisoned'?

Aka-lan: Just what exactly are you saying – you do not like the analysis but do address either the facts or the law actually applying. Read the longer analysis.

PeterGM: See the answer to TurnRTL. All the points you raise are discussed in the longer analysis. LOAC (and wider IHL) has always authorised the detention of combatants until hostilities cease. In the case of the campaign against Islamist terrorism defining that cessation will be impossible and that is why other avenues to detention need to be explored.

Jeremy: You claim to have read the linked detailed analysis of Hicks’ legal situation but then make claims that are simply wrong in fact or discussed and refuted at length in that analysis. Your East German comparison is farcical. World War II ended in 1945 and the DDR did not come into being until 1947, not to mention we were never at war with the DDR.

Bruce Haigh: The ADA continually address the separate defence issues you raise. Please visit our website or contact me separately. With Hicks we are simply trying to steer the public debate away from emotion and back to the law and agreed facts actually applying. The problem is that many have made up their mind about Hicks on emotional or political grounds and prefer to ignore the facts and the law where these contradict their emotional or political choices. This does not help Hicks or resolve the wider legal issues underlying his detention.

Batch: You need to read the longer analysis as this answers all your concerns. Several of your assumptions (and “facts”) are simply wrong. For example, in June 2006 the US Supreme Court reaffirmed that the Geneva Conventions applied (and the general coverage was never denied by the US Government). The Red Cross, as the authorised protecting power under the Geneva Conventions, has had random access to Guantanamo Bay from its inception.

Frank Gol: Your misconceptions are covered in the longer analysis. For example, there have always been two different types of parole in modern law: from a prison sentence and from capture in a war.

This article just goes to show how horribly complex it can get when things are not black and white and we have to ponder over the exact meaning and parameters of various factors. Even a small number of ill-defined parameters can compound to an enormous number of possible outcomes. Worse than this, they can play right into the hands of those that have the power, in this case the US president as it concerns David Hicks, and result in a hugely lopsided interpretation of the issue – and one that stretches far beyond the intent of the various laws and principles involved.

It really is all very simple if you believe that principles of democracy and fairness need to be upheld above all else. It just makes no sense for the US to espouse democracy and then step outside of its principles when it feels like it.

The ‘war on terror’ should have been viewed in the same manner as the ‘war on crime’, or ‘war on road carnage’ and not in a literal sense that has led to detainees being held for long periods without trial in a totally antidemocratic manner.

The fact that so many former GITMO detainees have been found not guilty and released is surely an overwhelmingly strong reason why people grabbed during the heat of this battle against terror should have been tried as quickly as possible and NOT treated as war criminals that could be held under indefinite detention. This became obvious at least a couple of years ago, which surely should have made it imperative that Hicks be tried or released…. and NOT continue to be branded an enemy combatant.

The US has well and truly had its chance to deal with Hicks. They should now have foregone all rights to hold him or try him.

It really is quite simple if you see it in these terms. The complications only set in if you start accepting that the US has some right to step outside the democratic and humanitarian principles, on which its society is apparently founded.

If the purpose of this article is to clear up misunderstandings about Hick's situation, may I politely point out that the general public is unlikely to appreciate being told its opinions are ignorant and hysterical nonsense? Not the best way to start a diaglogue with said general public - telling them they should be seen and not heard.

Further, that very same ignorant, hysterical nonsense has motivated our Dear Leader to start the diplomatic process of getting Hicks out of his incarcerated, detained, imprisoned or otherwise captive state. If I understand the article correctly, it is up to the detaining party to decide if and when to release the detained, so if the nonsense of a hysterical, ignorant public puts pressure on said public's leaders to persuade said detainers to release their detainee, the public nonsense has a very important role to play.

Possibly even more important than all the minutiae the LOAC can come up with. It's just what happens when you let the great unwashed lumpenproletariat say stuff. We just don't know our proper place, do we?

It is interesting to see that the ADA condones the use of torture and the deliberate breach of the rules of war conduct.

Who to believe? The International Red Cross or the ADA?

The Red Cross has been "Granted" only 40 visits to detainees in Cuba, and only then to prisoners of the American's choosing. Hicks has been denied visits as well as ICRC messaging.

The ICRC States:
[quote]
There are currently two broad strands of legal thinking: according to one, detainees in the "global war on terror" are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such. The ICRC does not share either of these views. It is clear that States may also detain persons for imperative reasons of security.

While the ICRC welcomes any development that leads to a clarification of the future of the detainees at Guantanamo, it does not believe that there is presently a legal regime that appropriately addresses either the detainees' status or the future of their detention.

Due to changed factual and legal circumstances since the launching of the "global war on terror", persons currently in US hands who are not released or tried must be put in another legal framework: i.e. provided an independent and impartial review of whether their continued detention for security reasons is justified.

The ICRC believes that uncertainty about the prisoners' fate has added to the mental and emotional strain experienced by many detainees and their families.
[EndQuote]
http://www.icrc.org/web/eng/siteeng0.nsf/html/usa-detention-update-121205?opendocument

How odd, but it would seem that there are other experts in Australia (or at least one) who take a somewhat different view of the issues here, whose analysis can be consulted as of 8 March 2007 at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/299.html (Hicks v Ruddock [2007] FCA 299 (8 March 2007)).
It would appear that not all of the experts on this matter are Australian army lawyers. As I understand it, there are also some American army lawyers (or at least one, goes by the name of Michael "Dante" Mori as I recall) who are of a different view from that expressed by the author of ths article.
Helen Pringle

TRTL,

I've been reading your posts for quite a while and I have come to the conclusion you would make a great ABC journalist, you consider all the facts very carefully, you seem very neutral, too neutral for me. It seems you lean to the left, but I think you give the right's arguements more legitimacy than they deserve.

Have you read 'the quite American'? Its an excellent read, I think the central theme is that the time comes one day when you have to pick a side, neutrality will only ge you so far.

Yes, the David Hicks issue is very complex, but its been waaaay over-intellectualised. Batch summed it up

'The growing concern for Hicks is reflective of a growing middle class concern for the authoritarian nature of so-called democratic government.'

The 'war on terror' in its current state is heading in only one direction, facism. Not Swastikas and gulags in Siberia, a different kind of facism, a modern form. Many authors have convincingly argued that modern facism has alreadytaken place in the USA and that its heading here.

Anyhow, you are a good writer TRTL, like your work. Just a bit too Kerry O'brien for me.

Hicks obviously means different things to different people. Neil James has a military solution for something that does not meet the definition of a war.

I partially see Hicks as a classic case of a religious follower being harnessed for a covert action program by an intelligence agency.

Bruce Haigh has refered to Pakistan's major intelligence agency (ISI). ISI, or Inter-Services Intelligence http://en.wikipedia.org/wiki/Inter-Services_Intelligence , recognises that the Pakistani military, due to its inferiority in conventional arms, has been largely forced away from open fighting against India in the endless disput over Kashmir.

Hick's is partially a product of Pakistan's recuitment drive for Kashmir. Partially using Saudi money ISI has supported a system of "Madrasahs" (Islamic Schools) http://en.wikipedia.org/wiki/Madrasah#Criticism whose scholars may graduate to paramilitary jihadist training camps in Afghanistan and Pakistan.

One network of such camps led by Osama bin Laden(in which Hicks trained) was associated with ISI and mainly funded by the Saudis.

These military training camps DO produce international terrorists but ISI has successfully sold the idea (to its Government) that they also produce unofficial, hence deniable, recruits to fight the Indians in Kashmir (shades of David Hicks’ career http://www.theaustralian.news.com.au/story/0,20867,21201110-2702,00.html).

All this is what is called a (Pakistani) covert action program. An indication that such programs are not a CIA monopoly.

So Hicks, amongst other things was a sucker of (Muslim) intelligence professionals then thoroughly done over by US intelligence, seeking revenge for 9/11.

Pete
http://spyingbadthings.blogspot.com

In your writing you leave out many important issues and that is not accidental but deliberate and unprincipled. You leave out the illegal aggressive wars against Iraq and Afghanistan.

These attacks on Hicks and other Guantanamo prisoners have a wider agenda and that is to undermine fundamental democratic rights at home and abroad. As well, these illegal detentions of prisoners captured in Afghanistan or Iraq are being used to legitimise illegal wars of aggression and prepare for new wars of plunder such as Iran.


First there is a long history of military juntas and dictators using political repression methods and kangaroo military courts. Military kangaroo tribunals violate American military law, the US Constitution and basic legal rights established over centuries. Hicks is being held in Guantanomo, precisely, to circumvent US legal law, due process, and basic legal rights. Yes even prisoners of war have rights. Guantánamo Bay prisoners, are defined as "unlawful combatants" or "enemy combatants" categories that have no status in international law and called such to void prisoners rights. But the Geneva convention covers this opportunist practise and still a war crime. As well, prisoners are reguarly subjected to intense interrogation, including the use of psychological stress techniques, which are classified under international law as torture.The Guantanamo prisoners have no access to civil court appeal and very restricted legal advise. Legal advise is supplied by the same military body intent on a conviction and listened into. Just to make sure even if found not guilty prisoners can be still be held indefinitely. The tribunals allow hearsay evidence, and wait for it, confessions extracted under protracted stress and torture. It was fully two years in solitary before Hicks was allowed access to a lawyer and officially charged in June 2003. The charges collapsed and now the dubious retrospective law has been conjured up five years after the event. Amnesty International, the Red Cross and other human rights organizations have condemmed the disgraceful conditions and the inhuman treatment of prisoners.

Mr. James, I don't buy your argument (really claim) that there is a war, and I might address that later. And, I'm not impressed by a bloated article which needs to bolster itself with reference to an article ten times its length. But here I want to focus upon something more obvious, the main reason why your article is being treated with contempt.

You have written a "dispassionate analysis" of Hicks's legal situation as if that is the main issue. It is not. "The subject of David Hicks", the question of "what to do with David Hicks" is not legal, however much you may want to pretend: the subject is moral. Your smug and superior dismissal of talkback/blogs is totally inappropriate.

Three obvious points:

1) The fact that an act is legal does not make it moral. As I'm sure you are aware, many of the horrific acts of the Nazis were legal (i.e. validly made laws enforced by properly constituted courts).

2) The legal questions matter, but it is now very clear (finally!) what is more important are the political questions. It is the political embarrassment from the moral reprehensibility of Hick's treatment which is much more likely to set him free.

3) You claim people are ignorant of the facts and probable facts. Well, so are you. And, failing appropriate judicial oversight, so will we all remain. Stop pretending you're in any position to act as Judge.

The legal questions are of course extremely important. But to write of this as if that is all, without proper reference to the moral and political setting? To pretend you know enough of Hicks to decide his fate? This is not dispassionate, it is blinkered and arrogant.

With a name like bushbasher one is hardly in a position to lecture another on "morals".

The fact that David Hicks trained and took up arms on behalf of fundamental terrorists does say something about his "morals".

If you don't think that a war is being fought against terrorism you really need your head read.

In my view, I repeat, that David Hicks should be kept in confinement until hostilities in Iraq and Afganistan are over and democracy is functioning without undue unrest in those countries.

I accept that he will be released at some time in the future, perhaps soon, because of political considerations. But the moral side of the argument is certainly not in his favour.

Dear Sniggid:

1) My writing name is obviously irrelevant to the discussion of morals. The demonstrable fact that President Bush is an uninterested and astonishingly stupid Good Old Boy, is highly relevant.

2) My original point (which many have made) was exactly that declaring war on an abstract noun is simply absurd, which in particular leads to flip references to people such as Hicks being prisoners of war.

3) Even if you believe there is a war, and you believe that Hicks can be held/incarcerated/detained, or whatever you want to call it, I don't see why you would want to avoid the discussion of the morality of Hicks's treatment.

4) Most importantly, you are in no position to judge or sentence Hicks. You presumably don't give a damn what I think about Hicks: I certainly don't give a damn what you think. What I and others give a damn about is whether an appropriately just body can decide what to do with Hicks.

Many comments are approaching the topic from the wrong direction. While you may genuinely want to help David Hicks, ignoring the international law applying actually has the opposite effect.

Many comments raise points that are already addressed in the original short article and/or the comprehensive analysis, or ignore that not every aspect of a very nuanced legal situation could be addressed in the short article.

The bulk of the article and its overall intention is quite plain: releasing David Hicks from Guantanamo Bay by concentrating on the most practical, legal and moral solution. Emotional, ideological and irrelevant posturing, such as Bushbasher’s comments, are part of the problem because they detract attention from practical solutions and do not help Hicks one iota.

International Humanitarian Law is universal and applies to everyone. There is no special “get out of gaol free card” just because you are an Australian. If you choose to go overseas and fight in a war there can be consequences. Emotional arguments or ones based only on civil domestic peacetime law do not help free David Hicks.

Those criticising the detention of captured terrorists need to have a practical and legal alternative. Just killing them or detaining them for ever are not legally or morally valid options.

Deny the war in Afghanistan all you like (as is your right) but in international law that war is a war because it exists as a fact. Remember also that the Islamist terrorists regard themselves at war with us no matter what we might think.

The article and the longer analysis do not once use the term “war on terror” or even “war on terrorism”. Following UN practice we clearly identify the enemy as Islamist terrorism.

The legality of the original coalition intervention in Iraq is an arguable point in international law and remains genuinely controversial. The subsequent operations to rebuild that country are fully endorsed by the UN. The coalition intervention in Afghanistan has been endorsed by the UN from the start. Emotional blanket claims about “illegal wars” simply demonstrate the bias and lack of research of the claimant.

What to do?
I'm not a legal eagle...but should David Hicks answer to a charge of treason if and when he returns to Australia? Laws do exist, some retrospective with regards to terrorism. Given his reported actions, associations, place of capture and the war activity which included Australian forces, one would think that his behavior constituted Treason?

Once again, David Hicks has been illegally detained for 5 years. You cannot arrest people, torture them for five years, then make up the charges. Or can you? The basis of law turns on fundamental democratic rights such as access to legal advise, the presumption of innocence, the right to know what you are being charged with, and charges being laid within a short period of days. There have been hundreds of detainees rounded up in dragnets, tortured over long periods, in Guantanamo to see what they knew then released!

This is what 20 communities in the US think about Bush's dictatorial methods and torture.
Twenty communities in the US voted this week to impeach Bush and Cheney. The Bush impeachment measure passed in Middlebury accuses the president and vice president of violating their oath of office to “‘preserve, protect, and defend the Constitution of the United States.” The resolution asserts that Bush and Cheney “manipulated intelligence and misled the country to justify an immoral, unjust, and unnecessary preemptive war in Iraq”; that they directed the government to engage in domestic spying without warrants; that they have “conspired to commit the torture of prisoners, in violation of the Federal Torture Act and the Geneva Convention”; that they have ordered the indefinite detention of prisoners “without legal counsel, without charges and without the opportunity to appear before a civil judicial officer to challenge the detention—all in violation of US law and the Bill of Rights.”
Full story http://wsws.org/articles/2007/mar2007/verm-m09.shtml

Neil what we are talking about here is an exchange of ideas.You put your article and ideas up for public examination,some people with good intent,knowledge and intelligence have questioned some of your assertions,like it or not this is part of the democratic process.I have seen some very good posts including Batch,Plantagenet and Bushbasher.Didn't your leadership courses in the army encourage you to acknowledge when others have made a valid contribution or are we all wrong and you are the only one that is right? In the light of what I know,from first hand experience in Afghanistan and Pakistan, and from what Plantagenet has alluded to,the war in Afghanistan is not winable with the number of UN forces deployed.They have to contend with an awful climate, a topography that is a logistical nightmare and which favours the guerilla and a porous border with Pakistan which is training and supplying the Taliban and which is out of bounds to UN military activity.Ask the Russians and indeed the British about the difficulties of fighting for any extended period of time in Afghanistan.
Hicks deserves to be heard,he deserves to be properly represented and he, like yourself deserves, to be properly treated,which, like it or not, is also part of our democracy.
It seems to me that the ADA is using Hicks as a smokescreen in order to avoid debate on Iraq and Afghanistan.
Bruce Haigh

planetagent,

Have you examined the links between ISI and the CIA? Like the one that George Tenet's counterpart was meeting with him in Washington on Sept 10 2001?

Bruce’s point about acknowledging valid contributions is a good one but the problem is the forum restriction of being allowed to post only two 350-word comments every 24 hours and the consequent difficulty of adequately answering multiple interlocutors under such conditions. Bruce's accusation of a "smokescreen" is unfounded and unfair as the ADA robustly debates the issues he mentions elsewhere.

Assuming all those posting comments are objective and sincere (despite the apparent contrary evidence in some cases) I am happy to continue the debate (on this or other topics) if any of you wish to email me separately or collectively at feedback@ada.asn.au. The ADA never avoids a full and frank debate on a topic but we do expect our interlocutors to observe the normal conventions and courtesies of debate. I suspect, however, there are those in this forum who just want an audience to parade their preconceived positions rather than really debate the issue in question.

The unnecessarily ad hominem attacks by some also do not contribute to proper debate. It is particularly disappointing when incorrect shallow and/or prejudiced assumptions are made about an author’s motivation and background as a base for such attacks.

The article posted stemmed from months of wider and spirited debate among some of Australia’s leading legal experts on LOAC (both military and academic). David Hicks’ own US military lawyer has commented favourably on the longer analysis paper it is based on, although he naturally disagrees with some individual details or interpretations. A previous Labor federal attorney-general has advised the ADA that he thinks the arguments are balanced and comprehensive.

And yet, some of those offering comment in this forum make the assumption that the facts and arguments in the article are somehow biased or wrong, or not even arguable, just because they do not believe them, or do not want to have to even consider having to weigh them objectively (or in some cases appear to have misunderstood them).

Given the flavour and nature of the comments posted by some there is considerable irony in them making accusations of arrogance against others

Executive Director Australia Defence Association. You smear your opponents but you do not state or stand on your disagreements. You claim your opponents do not add to the debate, but you, taking them on concretely, would make the debate truly alive and challenging! In lieu, you tip toe, throw some vague accusations and generalizations up in the air. All done, I suspect to cover your flank, so that your positions are not exposed and out in the open. I also suspect you are playing peek-a-boo with your position on torture. What is your position on allowing hearsay evidence and torured confessions as creditible evidence in these military tribunals? How say you?

Just before the invasion of Iraq, Washington dispatched a senior US diplomat, Marisa Lino, to Europe to demand the governments of the European Union agree to a blanket exemption of all US citizens (read politicians and officers) from the jurisdiction of the newly formed International Criminal Court. Moreover, the US formally rejected the treaty establishing the ICC, the first permanent international institution dedicated to trying cases of genocide, war crimes and other human rights abuses. Then the US admin. insisted that governments around the world sign bilateral treaties agreeing not to turn over any American citizens in the event that they are indicted by prosecutors at the court. The US admin. are not stupid, they understand what illegal wars are and have covered their flank: As well as, all the lies about WMD to justify an invasion. Hicks is caught up in these illegal wars and is being used to justify these outrages as a part of the war on terror - another cover for the flank.

So it is not a war on terror, but we are at war with the Islamic terrorists? I'm sorry, but this is still absurd and dangerous for the same over-abstraction.

The Cold War was a much, much, much greater threat than Islamic terrorism, but no one ever attempted to interpret that as a legal war. Imagine if, fifty years ago, we had declared a "War on Soviet Communism". Imagine the effect your current arguments and proposals (and the legal approaches of Bush, Blair and Howard) would have had in that era, the thousands (millions?) of people who could have been locked up until the "War" was over. Excuse me for being emotional again, but I find paranoic war rhetoric, and it's actual and possible consequences, chilling.

Islamic terrorism is appalling, and obviously of great concern. But there is no League of Islamic Terrorists to fight, and the concern is not a War.

David Hicks Fiasco

Neil James - spokesman for the ADA, and apologist-extraordinaire for the PM and vested interest, really draws a long bow with his latest exegesis to free DH. Evidently, he's been coached to spruik the ' lawyer's jargon ' to explain 5 years of inceration in that Dante's Inferno ' Gitzmo '. His 'weasel words' to obfuscate and totally extemporise opposition; his red-herring hypothesis; his pseudo-intellectual analysis; his appalling grasp of Law (Tort/criminal/military )

How he can honestly maintain DH was NOT imprisoned for more than 1825 days, chained like a feral animal, tortured, deprived of most things in accordance with Humanitarian Rights and Geneva Convention, beggar's belief !

Quote: ' this is also the truth that will set him free ? '
Second guessing from a pensioned-off, ex Infantry Major is NO guarantee the US Military Commission will adhere to, mush less spare him the time of day.

The LOAC (Laws of Armed Conflict) is a Military anachronism. Not applicable in this case. DH comes under the jurisdiction of the USMC, and whoever and whatever Tribunal prosecutes the case. It's a flawed belief to assume otherwise. Worst, it illustrates how civilians grandstand beyond their mental capability. His contretemps exceeds his jejune emotive flippancy. Not even the US Uniform Code of Military Justice is acceptable.

Moreover, self ordained LOAC experts in the ADF however obsequious cannot appear before the Commission. James and his cohorts should be conversant with US Military Protocols by now ?

Canadian Omar Khadr, and Salim Hamdan were released after US Supreme Court ruled ' military Commission was unconstitutional as established by GWB. His Authority to order detainees to face a Mil Tribunal or jurisdiction to hear the case collapsed.

USSC 2004. Case: Rasul vs Bush. " Prisoners in Gitmo be given access to US Courts to challenge legality of detention, citing US have exclusive control of Guantanamo Bay ".

USSC June 2005. Case: Hamdan vs Rumsfeld. Declared Executive Order to try detainees are unlawful and violate US Uniform Code of Military Justice. Geneva Convention, various Human Rights standards relating to fair trials.Fair Trials for

for prosecution applies to Wars not of International character i.e civil wars, as in Afghanistan. US Constitution explicitly prohibits Congress from approving any " ex post facto " , i.e retroactive Laws.

Fact (i) Definition of Unlawful combatants. Anyone. Mercenaries, children who purposefully and materially support hostilities against the US. Civilians such as a mother giving food to her combatant son, sending money to a banned group, or a US resident who commits a criminal act unrelated to armed conflict - a combatant who can be placed in Military custody and hauled before a Military court.

Fact (ii) US Military Act.2006 Prohibits invocation of Geneva Convention when executing the writ of Habeas Corpus from the time of enaction and in perpetuity. Anyone labelled unlawful combatant can be held indefinitely in Military custody or CIA prison

Fact (iii) Anti-Terriorism Act.2005 Before Parliament: Under the Act a person can be detained without charge and trial for one year. The Act allows Govt rather than Judiciary to imprison people indefinitely without charge or trial. It is an offence to even talk about somebody being imprisoned. Conversely, the requirement that a parent if informed of their child's detention may not inform further persons including the other parent

Fact (iv) UK 2005 success in gaining release of several UK citizens at Guantanamo reflects Aust Govt's abysmal reluctance to demand similar treatment for it's citizens. However, Aussie Mamdouh Habib was released on insufficient evidence.
Meanwhile, David McLeod launches civil action in Federal Court. Charges of breaching a duty to protect Hicks as a citizen, and failing to call a fair trial "

Fact (v) Dubya Bush and Dick Chaney acknowledged a network of secret prisons operated by the CIA. UN Human Rights Commission called for immediate closure of Gitmo, Thailand, Egypt, Jordan, Morocco, Eastern Europe and Bagram Air Base camps.

http://jurist@law.pitt.edu. 57 Countries signed UN Treaty. The International Convention for the protection of all persons from enforced disappearance and secret location prisons. Bans Govt from forced detention, torture, waterboarding, SERE (survival,evasion,resistance & escape )interrogation,sleep deprivation, psychological/psychedelic drug enhancement etc.
Predictively, US, UK, Aust et al reneged.

We note that as yet not one of those posting comments has been prepared to email the ADA separately to debate their particular issues with the ADA’s proposals.

It also seems to have escaped several critics that the article is actually arguing for David Hicks to be swiftly freed from Guantanamo Bay by concentrating on the applicable international law relating to his detention, rather than the fashionable but questionable (and thus far ineffective)approach of concentrating solely on the flawed legal processes relating to his separate criminal trial - a trial process which the ADA has strongly criticised in the article and elsewhere.

Several comments indicate little or no knowledge that the ADA has been very prominent in Australian debates on torture and has argued very strongly against the notion that torture is somehow justified due to the current terrorist threat. Over the last few months the Red Cross has conducted major hypothetical-style debates at Sydney University and ANU where they invited the ADA to argue against the idea of torture warrants put forward by several prominent lawyers. ADA articles condemning torture have also been republished in Red Cross and other human rights journals.

Could we also please have no further silly allegations that the ADA is somehow a government stooge or a right-wing organisation. For three decades the Association has been respected for its non-partisan and independent stances, and has many prominent members from both sides of politics and across the community in general. A quick visit to the ADA website for example, or a reading of Hansard, would quickly illustrate the ADA’s established reputation for political neutrality and objective criticism.

Some specific rebuttals will follow but the timing and word-limits on this forum remain a big problem here. If you genuinely want a real debate please visit the feedback portal at www.ada.asn.au

Neil James says that we desperately need a fifth Geneva Convention to cover the loophole that David Hicks has fallen into; “to cover captured belligerents who (while covered by Common Article 3 of all four existing Conventions) do not qualify for the specific coverage of prisoners-of-war under the Third Convention or as civilian non-combatants under the Fourth.”

Apparently so, but the intent of the Convention is clear; to cover all those in any position of this type. The existence of this apparent loophole is unintentional. The US Government should therefore be considered wrong to uphold it and should have upheld the intent of the Convention right from the start.

In the same way, the US Government should have upheld the principles of democracy and of presumed innocence until guilt is proven or indicated beyond a reasonable doubt. It should surely have been able to see the danger in stepping outside of those principles and the message that this could send (has sent) around the world to its non-democratic enemies, and allies alike.

Bushbasher states;

“The fact that an act is legal does not make it moral.”

And let’s face it, some of the things deemed technically legal regarding the reprehensible treatment of Hicks are only so because they inadvertently fall in between strict legal terms and definitions that really were designed to prevent anyone being held under these conditions. Clearly his treatment is utterly immoral.

Johncee1945 writes;

“Twenty communities in the US voted this week to impeach Bush and Cheney. The Bush impeachment measure passed in Middlebury accuses the president and vice president of ……the indefinite detention of prisoners “without legal counsel, without charges and without the opportunity to appear before a civil judicial officer to challenge the detention—all in violation of US law and the Bill of Rights.”

Clearly it is this blatant intent and actions undertaken by the US Government in stepping outside of proper legal and moral parameters that must surely be the baseline consideration here. Once we accept this… and how can anyone not…. most of the legal complexities evaporate.

Batch: Your ICRC quotations support our interpretation not contradict it. There needs to be a Fifth Geneva Convention to cover captured belligerents who do not qualify for PW status. The ICRC also understands that treating all captured terrorists just as criminals is not a solution because it wrongly ignores the Geneva Conventions.

Dalma: Your rambling and often incoherent first post has a factual mistake or legal misinterpretation in every paragraph – and yet you accuse others of an “appalling grasp of law”. Your second one is little better. Who, by the way, is the “pensioned-off ex-infantry major” and why should the US Marine Corps (USMC) have jurisdiction over David Hicks? You selectively quote several US Supreme court cases and miss the essential point that the Court struck down the original military commissions in large part because they contravened LOAC (chiefly the Geneva Conventions). The court did not once question that LOAC applied to the detainees. So much for your odd belief that LOAC is a “military anachronism” – a view not shared, incidentally, by any serious international lawyer in Australia or overseas.

Bushbasher: There is probably no such thing as an “Islamic terrorist” as you offensively claim but Islamist terrorism is a definite and definable problem and this is why the UN has proscribed several Islamist terrorist groups. Your “war on Soviet communism” analogy is an absurd one because the current UN-endorsed campaign against proscribed Islamist terrorist groups is a law enforcement, and at times military, campaign against a defined enemy not some general struggle only with their motivating ideology.

Johncee1945: You have misunderstood the Rome Statute, the jurisdiction of the ICC and the purpose of the US diplomatic campaign concerning potential extradition of US citizens in ICC cases. The US has not signed the treaty and the ICC has no jurisdiction over US citizens. This may be a pity but it remains the law and will not change until the US can be assured that the ICC will not improperly abuse US citizens. Time will eventually resolve this standoff.

Hicks has been held under the LOAC?

But the US administration denied that these detainees are protected by the Geneva Convention. And first charges against detainees weren't exactly LOAC-compatible. ("aiding the enemy" etc).

Unfortunately, after the Supreme Court said that such charges were silly, and that the Geneva Conventions applied, officials still said it was a "no-brainer" to have detainees subject to water immersion, etc Bye-bye Geneva/LOAC.

Apparently those who direct the detentions still have different ideas from the ADA of what they're doing.

Hicks now faces new charges. Murder was dropped and while it might have its place in the LOAC pantechnicon, an enemy combatant is generally expected to kill people on our side. But maybe it was just another indication he wasn't being held as an LOAC detainee?

But we confused persons and you have a problem in common because the US law now "permits" charges against Hicks and others, as "unlawful enemy combatants" subject to indefinite detention. The Iraq "war" is not so much a war an an insurgency with detainees who don't get Geneva Convention protection.

And the charge laid isn't retrospective because it comes from charges that applied under civil jurisdiction. So presumably they're local laws applied to someone held in LOAC detention who isn't given the protection of either habeus corpus OR the Geneva Convention...

Yet another stance. Yet another set of legal opinions. Yet another justification. How many stances make 5 ?

Where do you get your confidence that the LOAC applies and might prevail? It certainly doesn't prevail, and the idea of a "parole" for someone on a charge captors don't agree on seems as confused as any other proposition.

What matters now is shaming the US in the court of public opinion into doing something that is vaguely consistent with principles of all kinds of justice -- national and international. Which body of law it comes under is really academic....

Otherwise, if LOAC applies, a few US officials should be charged on FBI evidence with international crimes in breach of the Geneva Convention.
ADA agreed on that?

I remain mystified as to why David Hicks's situation is seen as a major issue (thank you, but please don't seek to enlighten me!). There are surely many more deserving issues for our limited attention and energy.

Dear EDADA,

I'm not quite sure why "Islamic terrorists" (my expression) is offensive, and "the Islamist terrorists" (your expression) is not. If you're playing on the difference between "Islamist" and "Islamic", then I think you're simply playing rhetorical games. At most, you should simply correct my (arguable, but I'd argue otherwise) misuse of the term "Islamic", and get on with the argument. As for my War on Soviet Communism analogy, I'll consider whether it is as absurd as you say. I think if you look at the people actually being locked up in Australia and the U.S., it's not as obviously absurd as you suggest.

Look, obviously you're frustrated with the responses you're getting here, particularly from people like me. I appreciate that. And I'll tell you what I'll do: I'll go away from this thread, read the longer article, and honestly try to digest your whole argument.

But really, for your own good, you should be examining why you are getting such suspicious and hostile responses here. There is complete miscommunication here, but you are not either an innocent in this. Please try to understand the fact of people's suspicion of legal approaches, and the reasons for that fact.

You are continually responding that people didn't understand your argument. But mostly, I think it's people simply don't care about your approach. Perhaps we (at least I) should try harder, and I at least will. But I think you should be a little more humble, consider from where people in this thread are coming, that there may actually be some validity in that, and try to make the case for your approach (independent of whatever arguments and conclusions result from that approach). You may think think you have made the case for that, or that it is so obvious that no case need be made: I, and it seems others here, disagree.

Am I to understand that there are no legal bars to bringing Howard or Bush before a properly constituted Kangaroo Court that will convict them both for war crimes? I have been told that the precise nature of the charges will be formulated later by a Professor of Peace Studies and International Law aided by a joint Green /Left committee chaired by the universal expert Kevin.

Conviction will be guaranteed by order of the high council of the ALP.

Part 1
Neil,

Your story line is nice to read but in my view isn’t based on sound reasoning;

Firstly, I do not whatsoever approve of the reported conduct of David Hicks as a person! However, having stated so, I do view that every Australian soldier could be prosecuted for war crimes for unconstitutionally invade Afghanistan and subsequently Iraq. Section 24AA Crimes Act (Cth) as I understand it makes it an offense of TREACHERY to attack a “friendly” nation. When I served under the NATO we were instructed that if you doubt the legality you better do not do it, but first check the legality! Now, when did any Australian soldier check if the Governor-General used his prerogative powers to publish in the Gazette a DECLARATION OF WAR in regard to either Afghanistan or Iraq? As after all a Prime Minister has no such prerogative powers to authorize an armed invasion into another sovereign nation! Oops, that is the kind of legality you might not have been concerned about?

See also my website http://www.schorel-hlavka.com and my blog http://au.blog.360.yahoo.com/blog-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH

In that regard David Hicks was assisting a “friendly” nation against armed invaders!

Now, you seem to overlook that the Federal Government within “external affairs” is obligated to have pursued the release of David Hicks when he was not charged! My blog set this out in greater details.

While you desire to attack lawyers, your own version come across to me as being single minded, lacking any proper appraisal of all relevant facts. It is like a architect designing this elaborate shopping centre, just that it cannot be build where he planned to build it because he overlooked that the area is actually under water and not on a hill, because he had his map upside-down.
You seem to go by what the US can do, etc, but as I already wrote to John Howard in June 2003 the Magna Charta applies to the US constitution and finally the US Supreme Court ruled for this also, years later. Likewise, Habeas Corpus 1640 is applicable to the US constitution and all provisions.

Part 2
I doubt you even may know which constitution applies to Australians! Let alone you then understand how David Hicks legal position is.

At least on 19 July 2006 I succeeded upon my appeals on all constitutional grounds, UNCHALLENGED, despite I filed a Section 78B NOTICE OF CONSTITUTIONAL MATTERS, because contrary to you I first check what are constitutional FACTS and expose the LEGAL FICTION.

To me, it doesn’t matter if the person’s name is David Hicks, Jo Blow, Jane Citizen, or by whatever name the person may go, I just desire that the person (of whatever name) is provided with DUE PROCESS OF LAW and constitutional rights applicable.
Where the Federal Government has made treaties with the US for trade its priority should have been at the very least that Australians would have the same legal rights as an American. Seeking to make excuses and attack people to be taking one side or another isn’t going to help David Hicks being an Australian rather may play into the hands of those holding him captive.
In case you think even remotely you know what the term DUE PROCESS OF LAW stands for, it ain’t the armed services towing unseaworthy boats into the ocean leaving people to the perils of the sea, even drowning.
Perhaps, your attention should be focused on letting the armed services known that they are in breach of law when towing unseaworthy boats into open sea! At least since the Board of Inquiry into the sinking of the TITANIC they held this to be an offense and it is within Australia in fact a criminal offense.

Look at history of US invasions where former friends were invaded by them then we merely have to ask, When is it our turn? No doubt you will use your explanation to justify it all.
I wonder if you realized Australian constitutional rights? You might just discover that David Hicks is constitutionally a British national, and so did you overlook this legal technical detail, that other British nationals were released?