ABC 7.30 Report Tuesday 9/12/03 Transcript
Hicks may see lawyer Reporter: Kerry O'Brien KERRY O'BRIEN: Welcome to the program.
Two years to the day, after his detention in Afghanistan by the US military for suspected links to the Al Qaeda terrorist group, Australian David Hicks may finally be allowed to see his lawyer for the first time later this week.
Now in solitary confinement with 660 other foreign suspects, at Guantanamo Bay US naval base on the coast of Cuba, Hicks has been listed for trial on unspecified charges before a US military tribunal in the near future.
Over the past two years Hicks' father, Terry, has waged a ceaseless campaign to have his son freed or brought to trial in Australia.
America has insisted he will be tried by a special Military Commission, but after strong criticism in Australia that Hicks has been denied basic human rights, the US Government has made some concessions.
Steve Kenny, the Adelaide lawyer appointed by Hicks' parents to represent their 28-year-old son, has spent the day at the Pentagon with the military lawyer designated to defend Hicks and with the Pentagon's prosecution team.
On Thursday, provided he signs an affidavit which would control his media comment, Mr Kenny expects to fly to Guantanamo Bay to see and speak with his client for the first time.
I spoke with Steve Kenny in Washington earlier today.
KERRY O'BRIEN: Steven Kenny, after your talks at the Pentagon today, what confidence do you have in the quality of defence that David Hicks is likely to get if and when the trial proceeds?
STEVEN KENNY, DAVID HICKS LAWYER: Well, it's not so much a question of the quality of the defence.
I think the people who are involved in the matter are quite sincere and genuine and will work hard.
But at this stage, the defence team is quite small.
Major Mori and myself are the only two on the defence team and we're only just starting whereas essentially the prosecution team have had a 2-year head start on us.
Hopefully, we will be able to expand the defence team and bring in more experts as and when needed, but there's certainly a long way to go.
KERRY O'BRIEN: The Australian Government has said that a military trial for David Hicks would be both fair and transparent and monitored by independent legal experts.
Do you share the Government's confidence?
STEVEN KENNY: No, no, I don't, and the reason is not because of the personnel involved in the matter, including the military officers who may be the judges.
That's not the issue.
The issue really is the rules under which they'll operate which essentially have been set by the politicians here in America.
And those rules severely diminish the rules of evidence that an Australian court would insist on.
And, indeed, an American court or even a military court martial would have much stricter rules of evidence than what the Military Commission has.
So that's the sort of thing that causes me grave concern.
And the real thing that causes me concern is even after the Military Commission's finalised its job, the matter still goes to the President or his delegate for a final determination, and it would be the equivalent of the PM making a final determination on somebody's case.
And I really think that, combined with the rules of evidence, are what are going to make it very difficult to have a free and fair trial.
KERRY O'BRIEN: How much will the rules of evidence differ for David Hicks?
STEVEN KENNY: Well, for example, a statement taken from David under interrogation - and bear in mind he's been in Guantanamo Bay for almost two years and the last six months in isolation or solitary confinement - and I don't know, but it's been widely reported that interrogation techniques use a technique called stress and duress.
Now any statement taken from him under those circumstances would be admissible.
They would also be statements from other people.
Even unsworn statements would be admissible against him.
Things from other people's trial may be admissible against him.
And also evidence may be given by inmates for particular rewards from Guantanamo Bay.
Those sorts of things make it of great concern to me that it may not be possible for him to receive a fair trial.
I mean, at the end of the day it may be determined by how the military officers sitting on the commission rule in relation to that evidence, but at this stage if they think it has some value, it is admissible.
KERRY O'BRIEN: I know you're still shooting in the dark in terms of the charges that your client is likely to face, but have you been able to verify reports that he's close to accepting a plea bargain, or at least that a plea bargain is on the table?
STEVEN KENNY: No, I can't, and I believe that that is not actually the case.
The indications I have had, certainly from the prosecution team here, is that they are unaware of any deal being struck with David.
But until I speak to David, I perhaps wouldn't be able to say that for 100 per cent.
But the understanding of the defence and prosecuting authorities here in Washington is that there has not been a deal done.
KERRY O'BRIEN: We've read in US print media that Hicks has made some admissions under interrogation.
Have you been given any access to that?
STEVEN KENNY: Yes.
Some detail has been made available to me today, just very late today.
That material I unfortunately can't speak about, and I have not had a chance to read it all, so it's all very new to me.
But the details of it - as I said, I really only skimmed the first couple of pages and I haven't had a look at it.
KERRY O'BRIEN: Can you give any sense of whether that material is damaging to David Hicks's case?
STEVEN KENNY: No.
I'm not really in a position that I can comment on the material at all.
KERRY O'BRIEN: What do you hope to achieve when you meet David Hicks face to face?
STEVEN KENNY: Well, what I'd like to do is to reassure David that there are people that know that he is there, that they are trying to do things on his behalf, that he does have some legal rights and that we will ensure that those rights are protected.
KERRY O'BRIEN: Why do you think David Hicks was the first of the 660 Guantanamo Bay prisoners to be given military counsel?
STEVEN KENNY: I have no knowledge of why that occurred.
There are many theories and possibilities but anything I would say would just be a possibility.
One of the theories that I personally have, for example, is that we have taken an action in the US courts that has now come before the Supreme Court of the US and the United States court has agreed to hear the matter, and that may have something to do with it.
They may be attempting to have his matter finalised before the Supreme Court hears the matter, but really it's speculation on my part.
KERRY O'BRIEN: You've been asked by the Pentagon to sign an affidavit before your meeting at Guantanamo Bay, which would effectively gag you from speaking after that meeting without special permission from the highest levels of the Pentagon.
Have you been told how readily that permission might be forthcoming?
STEVEN KENNY: Ah, not how readily it would be forthcoming, but I have had some discussions with members of the appointing authority to discuss what the ground rules are for granting permission to speak to the press.
I think the feeling I get is that we will be allowed at least to some extent to be able to speak to the press and really what we're trying to do at the moment is to just clarify those ground rules and the topics that we will be allowed to speak about.
KERRY O'BRIEN: Do you know why they've sought an affidavit at all?
STEVEN KENNY: Um, that's a good question and perhaps one that the American authorities might want to answer themselves.
I don't see that in a normal Australian court case it would be at all necessary but, in this case, there are a number of other restrictions, including undertakings in relation to the conduct of the case, the commitment to the case, the fact that I wouldn't be able to travel from Guantanamo Bay without that permission.
I think it's a question of their concerns to ensure that there are some reasonable - and some of the matters are quite reasonable - but certainly some restrictions on defence counsel.
KERRY O'BRIEN: As the first person from Australia to see David Hicks since he was captured, have you been given a clear picture of him by the family of what to expect of the David Hicks they knew?
STEVEN KENNY: Yes, I do.
I mean, I've spent a lot of time talking not only to his family but also to friends and other people that knew David Hicks, so I have in my own mind a mental picture of David Hicks and the type of person that I expect to meet there.
And I think that I have a reasonable feel for the type of person he is.
And I will be interested to see how that bears up with what I actually find.
KERRY O'BRIEN: Steve Kenny, thanks for talking with us.
STEVEN KENNY: Thank you, Kerry.