Tuesday, August 9, 2005

David Hicks justice betrayed ......

AUSTRALIA/CUBA/USA: A stated belief of the Liberal Party is: "We believe in a just & humane society in which the importance of the family and the rule of law & justice is maintained."

The Prime Minister & a number of his senior Ministers, demonstrated how this Liberal Party belief, also a 'core' value of our democracy, has been betrayed: to the detriment of us all.

In a series of pathetic, dishonest & deliberately misleading performances, John Howard, Alexander Downer & Philip Ruddock dismissed claims by former US Military Commission prosecutors that David Hicks cannot & will not receive a fair trial before the Commission.

David Hicks has been held at Guantanamo Bay by the US military for more than 31/2 years & is shortly scheduled to face the US Military Commission, specifically set-up by the Bush administration to try non-US enemy combatants in his endless 'war on terror' (US enemy combatants get to be tried in the US criminal justice system & enjoy all the protections afforded by that system).

Over the course of his detention, Hicks has been subjected to torture & for a significant period, was denied legal representation & communication with his family. He continues to be held in solitary confinement.

In spite of its contention that Hicks & the other detainees held at Guantanamo Bay are 'enemy combatants' & therefore not entitled to the protections of the Geneva Convention, the US has refused to convene hearings to determine the status of the detainees, as required by the Convention.

If David Hicks faces the US Military Commission, it will be to answer charges existent under laws created by executive fiat more than 2 years after he was detained, itself a breach of International Law, but a fact that doesn't seem to bother our government or the US.

From the moment the US Military Commission was set-up, its processes have been subject to persistent criticism by eminent international jurists, governments & human rights organizations, including:

*Amnesty International

*Human Rights Watch

*Lord Steyn, one of the most senior judges in Britain's House of Lords

*the President, Swedish Bar

*the Dean of the Faculty of Advocates, Scotland

*the President of the Law Society of Northern Ireland

*the President of the Law Council of Australia

*the President of the Paris Bar

*the Chairman of the Council of the Bar of England & Wales

*the President of the Scottish Law Society

*the President of the Canadian Bar

*the President of the Law Institute of Victoria

*the President of the Law Society of England & Wales

*the Commonwealth Lawyers Association

*the Human Rights Institute of the International Bar
Association

*Justice Richard Goldstone, Former Chief Prosecutor of the UN War Tribunal

At the heart of the criticisms of the US Military Commission is the fact that those brought before it will not receive a fair trial. Military Commission procedures provide:

*that defendants will not have the right to confront their accusers

*that defendants have no protection against self-incrimination

*that defendants have no fore-knowledge of penalties attached to offences

*that defendants have no protection against hearsay evidence

*that evidence obtained by torture will be admissible

*that evidence may be given anonymously

*that exculpatory evidence may be withheld

*that evidence may be withheld from the accused

*that evidence may be withheld from a defendant's legal representative

*that hearings may be held in camera

*that witnesses will not be available for cross-examination

*that a defendant's legal representative may not talk with the media

*that a defendant has no independent right of appeal

*that a defendant may not be released, even if found not guilty

These deficiencies are peculiar to the US Miliary Commission, as proceedings brought before International Tribunals, US, British & Australian criminal jurisdictions & Military Courts Martials ensure that the rights of a defendant to a fair trial are protected.

John Howard, Alexander Downer & Philip Ruddock have continuously claimed that David Hicks will receive a 'fair trial'.

Confronted with the latest accusations that such will not be the case, they claim to have intervened with the US to correct the 'inadequacies' of the Commission.

At the same time however, whilst our little trio of despicable tricksters continued with their dishonest claims about the alleged fairness of the US Military Commission, whilst using every opportunity to continue their efforts to blacken Hicks' name with misleading information, they have studiously avoided any discussion of the specific shortcomings identified above.

Indeed, when former High Court Judge, Mary Gaudron, waded into the debate & criticised the Commission processes, the best our chief law officer could come-up with was to arrogantly dismiss her claims as coming from a 'retired armchair critic', whilst asserting that the responsibility for the efficacy of the Commission rested with the US & that they had told us that the proceedings would be fair.

Pontius Pilate couldn't have put it better.

Here was our nation's 1st law officer; a Minister of the government; a lawyer; stating that the responsibility for protecting & securing the legal & human rights of an Australian citizen was of no concern to him or his government but was a matter for the US to worry about.

But try as they did to dismiss their outrageous betrayal of an Australian citizen by his government, the controversy surrounding the US Military Commission would not abate.

It was left to the Minister for the Ageing, the blond ice-maiden member for Curtin in WA, Julie Bishop, to try & close-out the issue.

Ms Bishop showed a willingness to go where her more cunning, dissembling colleagues would not & blatantly asserted that the "US Court of Appeals recently reviewed the military commission process & found & ruled that it was appropriate in these circumstances".

The US Court of Appeals DID NOT review the Military Commission process. It addressed the question of whether the US President had the authority to set-up the Commission (agreeing that he did) but not the adequacy of its procedures & processes to deliver to deliver a 'fair' trial.

The efficacy of the Military Commission processes WERE NOT reviewed by the US Court of Appeals & to state otherwise is simply an out & out lie. (A full transcript of the Appeals Court judgement can be found here United States Court of Appeals: Hamden vs Rumsfeld.)

Labor's shadow Attorney-General, Nicola Roxon, challenged the accuracy of Bishop's claim but, of course, was ignored, just like everyone-else.

Bishop's effort highlights just how wilfully & callously determined this government is in ignoring its responsibilities to its citizens, when it is politically expedient to do so. And with further encroachments being made against our civil liberties every day, this is a fact that none of us should lose sight of.

In a late sign that some in the Liberal Party are unhappy with the behaviour of the government over the Hicks affair, Liberal backbencher, Judi Moylon, has publicly called for the government's intervention to ensure that Hicks receives a fair trial.

Short of restructuring the entire Military Commission process & removing it from the direct control of the US administration, this will only be achieved if David Hicks is tried within the US civilian criminal justice system (as US enemy combatants have been) or by Military Court Martial.

Only then will the interests of justice be served & only then will David Hicks receive the fair trial that the today's Liberal Party is shamefully determined to deny him.

By John Richardson posted 9 August 05

David Hicks: affidavit on abuse and mistreatment
by reposter Monday December 13, 2004 at 08:02 AM

Full text of the affidavit lodged by Guantanamo Bay detainee David Hicks asserting that he has been tortured during his detention:

DAVID M HICKS, being duly sworn, deposes and says:

1. I am David M Hicks, a Petitioner in the above-captioned action, and I make this Affidavit, submitted under seal (*), in support of my Amended Complaint, and my applications for injunctive relief.

2. I am a native and citizen of Australia, born in Adelaide August 7, 1975. I have completed the 9th Grade in the Australian school system.

3. This Affidavit provides an outline of the abuse and mistreatment I have received, witnessed, and/or heard about since I have been detained by the United States in Afghanistan, aboard US Naval vessels and US military aircraft, and at the US Naval Base at Guantanamo Bay, Cuba (hereinafter "Guantanamo Bay"). I have been detained by the United States Armed Forces from December 2001 until present. I arrived in Guantanamo Bay in January 2002. I does not detail all of the abuse I have received, or witnessed, or heard about, but merely sketches some of it. I have been careful to specify what happened to me, what I saw happen to others, and what I have heard about. During the course of my interrogations, I have repeatedly asked for a lawyer and why I am not being treated as Prisoner of War.

4. Since I do not have access to either a typewriter or computer, this Affidavit has been prepared by my attorneys based on information I have provided to them. I have reviewed the Affidavit carefully, and verify that it is completely accurate.

5. I have been beaten before, after, and during interrogations.

6. I have been menaced and threatened, directly and indirectly, with firearms and other weapons before and during interrogations.

7. I have heard beatings of other detainees occurring during interrogations, and observed detainees' injuries that were received during interrogations.

8. I have been beaten while blindfolded and handcuffed.

9. I have been in the company of other detainees who were beaten while blindfolded and handcuffed. At one point, a group of detainees, including myself, were subjected to being randomly hit over a eight hour session while handcuffed and blindfolded.

10. I have been struck with hands, fists, and other objects (including rifle butts). I have also been kicked. I have been hit in the face, head, feet, and torso.

11. I have had my head rammed into asphalt several times (while blindfolded).

12. I have had handcuffs placed on me so tightly, and for so long (as much as 14-15 hours) that my hands were numb for a considerable period thereafter.

13. I have had medication - the identity of which was unknown to me, despite my requests for information - forced upon me against my will. I have been struck while under the influence of sedatives that were forced upon me by injection.

14. I have been forced to run in leg shackles that regularly ripped the skin off my ankles. Many other detainees experienced the same.

15. I have been deprived of sleep as a matter of policy.

16. I have witnessed the activities of the Internal Reaction Force (hereinafter "IRF"), which consists of a squad of soldiers that enter a detainee's cell and brutalize him with the aid of an attack dog. The IRF invasions were so common that the term to be "IRF'd" became part of the language of the detainees. I have seen detainees suffer serious injuries as a result of being IRF'ed. I have seen detainees IRF'ed while they were praying, or for refusing medication.

17. I was told repeatedly that if I cooperated during the course of interrogations, I would be sent home to Australia after the interrogations were concluded. I was told there was an "easy way" and a "hard way" to respond to interrogation.

18. Interrogators once offered me the services of a prostitute for fifteen minutes if I would spy on other detainees. I refused.

19. Failure to cooperate meant the loss of the ordinary necessities of living, such as showers, sufficient food, relief from the prospect of IRF'ing and other regular abuse visited upon non-cooperative detainees, access to reading material, and social contact (including receiving mail).

20. During Ramadan, food was withhold from detainees after the break of the daily fast in order to coerce cooperation with interrogators. Detainees who refused to cooperate were punished regularly, and denied the ordinary necessities of living.

21. I have been told that strobe lights and extreme cold were also used to disorient detainees in order to soften them up for interrogation. I have also heard that religious detainees were exposed to pornography, and were dragged around naked in order to break their will.

22. Detainees were not allowed to know the date, day, year, or time. We were deprived of any and all information and news from the world. Detainees were permitted very little exercise.

23. At one point during 2003 alone, my weight dropped by 30 pounds (and I was not overweight to start).

24. Other detainees also informed me that interrogators attempted to turn them against me by spreading rumors about me. In any event, due to the way interrogations were conducted, and the physical layout of the camps, it was obvious to all of the detainees who was being interrogated, for how long, and whether that detainee emerged abused or not (with the latter signifying cooperation). Thus, any detainee would know who was cooperating with the interrogators.

25. The interrogation process ruled the detention camps and the lives of detainees. Cooperation with interrogators offered the only means of relief from the miserable treatment and abuse the detainees suffered. Those who failed to comply suffered abuse until they gave in.

26. My conditions changed after I was moved to Camp Echo (as did the treatment afforded me by the military personnel on duty there) July 9, 2003, and then again after the visits from my attorneys began. However, at Camp Echo, I have been held in a solitary cell and have been so since arriving at Camp Echo. I was not allowed outside of my cell in Camp Echo for exercise in the sunlight, from July 2003 until March 10, 2004.

27. As noted earlier, the above catalogue of abuse and mistreatment is not complete. It is but a summary of some of the abuse I suffered, witnessed, and/or heard about since my detention began. I would be able to provide further information and detail if the Court so desires, but a complete account would require a substantially longer document. In fact, at my request and due to the persistence of my lawyers, I have recently met with US military investigators conducting the probe into detainee abuse in Afghanistan. Also, this is not the first time I protested my mistreatment, since on several occasions - in Afghanistan, and later at Guantanamo Bay - I informed representatives of the International Red Cross of the abuse.

WHEREFORE, it is respectfully respected that the Court grant the relief sought in my Amended Complaint, and for any such other relief that the Court deems proper.

DAVID M HICKS

Sworn to before me this

5th day of August, 2004.

MD MORI

Major

United States Marine Corps

Judge Advocate

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