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.