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The Forum > Article Comments > What a to do about David Hicks > Comments

What a to do about David Hicks : Comments

By Neil James, published 8/3/2007

The opinions on David Hicks offered by many Australian lawyers have not helped or informed: this is a dispassionate analysis of his actual legal situation.

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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?
Posted by PeterGM, Sunday, 11 March 2007 2:11:45 PM
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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.
Posted by Faustino, Sunday, 11 March 2007 2:15:09 PM
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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.
Posted by bushbasher, Sunday, 11 March 2007 2:27:04 PM
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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.
Posted by anti-green, Sunday, 11 March 2007 5:14:20 PM
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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.
Posted by Mr Gerrit H Schorel-Hlavka, Monday, 12 March 2007 10:07:25 PM
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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?
Posted by Mr Gerrit H Schorel-Hlavka, Monday, 12 March 2007 10:08:58 PM
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