STORY - "David Hicks - Home for Christmas?"

Michael Elphick is a consultant in education and a freelance writer on human rights and social justice.

Some weeks ago Phillip Ruddock commented that there was a very real chance that David Hicks could be home for Christmas. However, with the Melbourne Cup behind us and decorations beginning to appear in the shops, there is little sign that the Attorney General's comment will bear fruit. With mounting criticism of the government's handling of the Hicks case it is time to consider its merit in more detail.

What exactly has Hicks done? In normal circumstances we might answer this question by reference to the charge sheet; however in the case of David Hicks this provides more heat than light. The United States government has not charged Hicks with any crime recognisable by US or international law. The charges include ‘attempted murder and destruction of property by an unprivileged belligerent', ‘conspiracy to commit war crimes', and ‘aiding the enemy'. Perhaps Hicks is quite the criminal, but as they stand the charges are more emotive than substantial. International jurists including figures deep within the US military justice system such as retired Air Force Judge Advocate Michael Schmitt have declared the charges ‘flawed because they do not exist in international law, do not outline a war crime and are too vague.' ¹

Much of the difficulty lies with the Bush administration's terminology ‘enemy combatant' and ‘unprivileged combatant'. These are interesting terms in that they are not found in any of the relevant laws, international or domestic, that might apply.

The relevant international laws are the Geneva Conventions, which are in fact four conventions covering separate aspects of armed conflict. The third and fourth conventions cover the treatment of prisoners of war and the rights of civilians. The Conventions do not admit of any other category of person. In an armed conflict you are either a soldier – and hence a prisoner of war when captured – or a civilian. If Hicks was a soldier he cannot be charged as he was simply performing his normal duties. If he is a civilian then he is entitled to protection, a trial or release.

The Conventions themselves document a procedure for determining an individual's status when this is in doubt; a procedure that the US military used frequently during the Vietnam conflict but has abandoned in the current conflict. The creation of a category of person such as ‘unprivileged combatant' is an attempt to deal with detainees outside the strictures of long held international agreements. In fact it is an attempt to avoid – and one that the international community of jurists has rightly rejected. In Guantanamo , the Abuse of Presidential Power, Joseph Margulies asserts that ‘there is no gap between Conventions three and four. No gap into which prisoners may fall unprotected by the law. Nobody falls outside the law. One is either a prisoner or a civilian.' ² The attempt to reclassify the status of Hicks and other detainees by the Bush administration reveals a deeper purpose - a desire to place the administration's actions in the war on terror beyond the reach of the courts. The US Supreme Court in Rasul V Bush (2004) has since overruled this practice although the Bush administration has paid the ruling no practical heed in its conduct of Guantanamo . In this respect the case of David Hicks is simply a particular example of a larger, more problematic trend.

In basic legal terms the continued detention without trial of David Hicks represents a denial of his right to habeas corpus , a centuries old fundamental instrument for safe guarding individual freedom against arbitrary state action. To put it simply, neither governments nor armies get to lock you up. Only courts have that right, and only after due process.

Subversive and sinister forces are at work. The Bush Administration is in breach of a basic western political principle – the separation of powers - the executive, the legislature and the judiciary are not the same people, and for good reason. James Madison asserted that the ‘accumulation of all powers legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny.' ³ To extend Madison 's logic, is there any essential difference between the lawlessness of Guantanamo and the lawlessness of one of the Taliban's own detention centres? Should David Hicks not be able to expect more, a different type of treatment being detained as he is by the United States and not by its adversaries?

There has been no evidence proffered to date, nor any suggestion made that Hicks actually killed anyone or damaged anything. One accusation against David was that he was ‘guarding' a Taliban tank. Supporters of Hicks claim he was simply standing near it. You say tomato….

Nor would the circumstances of David's arrest seem to be beyond suspicion. Very few of the prisoners at Guantanamo were detained by US forces. The bulk of detainees were arrested by tribal warlords, Pakistani intelligence officials or the Northern Alliance . The volume of arrests is as much the result of high bounties payable for members of the Taliban or al-Qaeda as to any legitimate law enforcement or military sweep. In a country like Afghanistan , beset by factionalism and poverty, such processes must often lead to what one US official described as ‘a steady flow of miserable prisoners trussed up and tossed into the back of pick-up trucks, delivered by villagers with their hands outstretched.' ⁴ Might we not ask whether poor silly David was simply in the wrong place at the wrong time?

Many of the individuals detained with David and in similar circumstances to his have been released. No western government, not the United States , not Great Britain , not Pakistan has allowed their citizens to remain in Guantanamo Bay , nor have they countenanced the type of trial for their people that David Hicks is facing. Perhaps the ultimate irony of the Hicks case is that senior Taliban fighters with publicly admitted ties to the Taliban Government have themselves been released and repatriated. In one celebrated case a spokesman of the Taliban government is now studying at Yale University on a scholarship provided by the US .

Some argue that the nature of the conflict does not allow for the niceties of the law as practised in peace time. Yet war itself and the rise of terrorism cannot be used as an excuse for suspending the liberties and protections that have been violated in the Hicks case. On an earlier occasion the US Supreme Court ruled that ‘the war power does not remove constitutional limitations safe-guarding essential liberties.' ⁵ Justice Brandeis warned that ‘crime is contagious. If the government itself becomes the law breaker it breeds contempt for law…to declare that the government may commit crimes to secure the conviction of an individual would bring terrible retribution. Against that pernicious doctrine this court must resolutely set its face.' ⁶

The impact of US action in detaining the likes of David Hicks goes well beyond the personal to include the various consequences of the bad example. In Guantanamo the US has lowered the bar for other governments. While European Union and the British government have roundly condemned Guantanamo , other countries with dubious human rights records such as Liberia , Zimbabwe , Eritrea , Namibia , Indonesia and Malaysia have taken comfort in it. The US can now only ‘legitimately condemn cases of human rights abuses worse than Guantanamo .' ⁷

There appears little or no legal solution to David Hicks' dilemma as there is no authority or legal argument that the Bush administration seems willing to recognise. Politics, not the law, have placed David Hicks in Guantanamo Bay and public advocacy and action is now his best chance of coming home. Hicks' legal team would welcome their day in court. The Australian Government must act to ensure that he gets it soon. If not they must arrange to bring him home. Whatever embarrassment Howard, Downer and Ruddock must suffer for their collusion in his detention is now beyond the point.

Michael Elphick

1 Sydney Morning Herald, ‘New doubts about the Validity of the Hicks Charges', June 1, 2005.
2 Margulies, Joseph, Guantanamo and the Abuse of Presidential Power. Simon & Schuster, 2006, page 54.
3 Margulies, page 14.
4 Margulies, page 69.
5 US v Robel , US 258, 264. (1967).
6 Olmstead V US , 277 US . 438, 468. (1928).
7 Margulies, page 143.

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