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'?