The charges against David Hicks
The US military has outlined a weak case against an Australian accused of terrorism.
If David Hicks is among the "worst of the worst" of alleged terrorists held by the United States military in Guantanamo Bay, as he has been described by the Howard Government, then pity those detainees whose behaviour is considered less heinous and, yet, still await being charged let alone their day in court.
After two-and-a-half years in custody, Hicks has finally been charged. This belated small mercy in processing the former Adelaide man detained in Afghanistan in December 2001 is to be welcomed, and is the most significant step since the US determined it would not execute him if found guilty.
Hicks has been charged with conspiracy, attempted murder and aiding the enemy. But the charges are significant for what they do not spell out. Though they are extremely serious, there is no allegation that Hicks killed or specifically harmed anyone.
His captors assert instead that he trained in al-Qaeda camps, guarded a Taliban tank at Kandahar airport and travelled to Konduz in northern Afghanistan to join Taliban engaged in combat against US-led forces. They say he intended to kill coalition combatants in Afghanistan between September and December 2001. They assert he aided al-Qaeda and the Taliban in the context of armed conflict. In the absence of specifics it is impossible to make any further assessment.
There are, however, some puzzling aspects, such as the claim that Hicks translated al-Qaeda training material into English from Arabic, a language of which he is believed to have had only a limited command.
The charges are to be heard before a military commission within a matter of months. This, like so many aspects of the process to date, mocks the democratic values US intervention in Afghanistan and Iraq was meant to uphold.
The legal limbo in which Hicks and other detainees are held means they have been unable to invoke the writ of habeas corpus to test the legality of their imprisonment. They are held on Cuban soil, leading to the technical legal argument that this exempts them from the protection of the US constitution and the normal legal protections to which a prisoner is entitled. They have been held as enemy combatants, not prisoners of war, and so have been denied the protections of the Geneva Convention. Yet the charges against Hicks relate to belligerent conduct.
Through the willing surrender of two of its citizens to this process, the Australian Government has set a dangerous precedent that should alarm all Australians. The military commission that will hear the case against Hicks is an extension of the US executive, not an independent tribunal. It is answerable ultimately to a US President who has called those in Guantanamo evil people.
This is second-class justice. Even alleged terrorists are due their day in court. Nothing in these latest developments overtakes The Age's belief that the fate of Hicks should be decided under Australian law or before a properly constituted international tribunal, not by the US military.