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.