Living in the Twilight Zone

Living in the Twilight Zone - ear-witness account of David Hicks public meeting in Adelaide
by k-e April 13, 2006Incarcerated for over 4 years in America's notorious Guantanamo military prison in Cuba, much of that time in solitary confinement, and without charges being laid, David Hicks is one of the first detainees to face trial by military commission. The military commission process itself is currently being challenged in the US Court system, as its legality and capacity to offer defendants the right to a fair trial is seriously under question. His legal team explains why...

12 April 2006. It was a mild autumn night in Adelaide just before Easter, a Wednesday, an evening of some good televison if you enjoy the weirdness of Little Britain. The packed public meeting 'LEGAL LIMBO – 4 MORE YEARS FOR DAVID?' held in the North Adelaide Community Centre was organised by the small but indefatiguable Fair Go For David, a self-organised group working for justice for Adelaide-born David Hicks. Incarcerated for over 4 years in America's notorious Guantanamo military prison in Cuba, much of that time in solitary confinement, and without charges being laid, Hicks is one of the first detainees to face trial by military commission . The military commission process itself is currently being challenged in the US Court system, as its legality and capacity to offer defendants the right to a fair trial is seriously under question.

Speaking to the audience of a few hundred people of all ages and stripes were David McLeod, Australian solicitor for David Hicks; Josh Dratel, US Civilian Solicitor for David Hicks; Major Michael Mori, Military Solicitor for David Hicks; and Terry Hicks, David's father. Bronwyn, Co-ordinator of Fair Go For David, MC-ed the evening. Following is an account of their main points, as transcribed by someone who really should learn shorthand.

Josh Dratel is a 'big wig' according to David McLeod. He is a leading criminal defense attorney, former past President of the Criminal Lawyers' Association, and co-author with Karen Greenberg of 'The Torture Papers: The Road to Abu Ghraib'.Dratel provided some context of the American legal system and two current cases before the courts in the UK and the US which might effect David Hicks.

A couple of hours before the public meeting had come the welcome announcement that the British Court of Appeal had dismissed their Government's appeal against the granting of British citizenship to David Hicks. Dratel reminded us that the British Government has previously seen fit to assert the rights of nine of their subjects in Guantanamo and brought them home. These nine people are now living in freedom. Hicks, whom it was serendipitously discovered last year has a right to British citizenship through his maternal line, is hoping that Britain will step up to the plate in a way which the Australian government has failed to do, and uphold his citizen rights. The legal decision yesterday found that pre-citizenship conduct cannot be used to revoke such rights. Tony Blair's Labour Government can now play its last right of appeal card - to the House of Lords. But the Lords have a discretionary right not to hear this appeal should they so choose. And they can uphold the Court of Appeal's decision, if they hear the case.

One stipulation of the citizenship application process is that the applicant must swear an oath in front of British Consular officials. But without explanation, the officials' attempts to visit Hicks in Gunatanamo has been stymied by the United States. The same UK judge who initially ruled that Hicks could become a citizen has indicated that he is prepared to waive the sworn oath should circumstances prevent its being taken. Patel explained that the Government's claim that Hick's situation is fundamentally different to that of the nine men who were released because he had been charged, and they hadn't, is a pure distraction. The nine Britons were not permitted by the British Government to be charged under that system.

Last week the US Supreme Court heard arguments in the Hamden vs Rumsfeld case. Hamden is a Syrian national who, like Hicks, has been charged and is due to face the military commission. His case challenging the validity and constitutionality of the commission system has wended its way through the US courts and its principle issues are likely to apply to David Hicks.

According to Dratel and other legal experts, the commission system is against the rule of law, as it has been set up solely to convict people and deny them their rights. One of these rights is that a defendant can be excluded from his/her own hearing if the evidence relating to their charge is 'classified'. This is counter to the Detainees Treatment Act and the Geneva Convention. It is a moot point whether or not the US President has the authority to create such military commissions especially because they deviate from military law in significant ways. Patel stated that he did not think that the US Government could continue to prosecute David Hicks in a way that is congruent with international law especially after holding him incommunicado for 2 years, and subjecting him to torture. The outcome of Hamden vs Rumsfeld could unequivacably demonstrate to the Australian Government that the military commission is not fair, and that the only recourse is to bring him home. >>>cont

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