Guantanamo: America's shame
EDITORIAL Sydney Morning Herald August 2, 2005
Rigged military tribunals which ensure a guilty verdict, not a fair trial, are the blunt political instruments of authoritarian regimes - not healthy democracies. The US State Department reports annually on the progress or otherwise of human rights around the globe, citing the promotion of freedom and the rule of law as a central goal of American foreign policy. In its latest critique of China, for example, the politicised Chinese legal system is appropriately condemned over the judiciary's lack of independence, the routine lack of due legal process, the violation of prisoners' legal protections and undue political pressure on defence lawyers. Yet the US is in breach of its own fine standards in its treatment of the so-called enemy combatants detained at Guantanamo Bay. New claims that US military tribunals set up to process the accused are stacked to prevent acquittals are a serious stain on the proud American tradition of liberty and the rule of law. For Australia, the only Western nation to allow one of its citizens to go before a US military tribunal, this should be very alarming news.
That the US military tribunal process is flawed is not in itself surprising. The detention without trial of terrorist suspects at Guantanamo Bay in Cuba removed hundreds of prisoners from the protections of the US legal system. Washington argues the detainees are illegal enemy combatants, not prisoners of war, and so have forfeited most of their rights. Many legal experts disagree. The Howard Government, however, has accepted that the sole remaining Australian detainee, David Hicks, can be safely tried by a US military panel, although British and European governments sought and secured the repatriation of all their nationals.
Hicks's defence was always going to be extremely difficult to mount from inside the cages of Guantanamo Bay and within the limits of the tribunal system. However leaked emails from two former US military prosecutors suggest there has never been any prospect of a fair trial. The two US officers, since transferred to other duties, say prosecutors were told the panels sitting in judgement on the Guantanamo Bay detainees "would be hand-picked to ensure convictions". That is a serious enough charge. But the two officers also claim the detainees are "low-level" suspects, and the cases against them are marginal.
The Attorney-General, Philip Ruddock, says he will pursue the matter if the US officers' claims are verified. That is the very least he should do. The question is not whether Hicks was reckless and wrong to travel to Afghanistan, where he was arrested at a bus stop in 2001. It is whether Canberra is willing to uphold the right of every Australian citizen to a fair trial. Recent reports suggest Hicks's day before the military tribunal is only weeks away, after more than 31Ž2 years in custody. Mr Ruddock has previously said he expects Hicks to be fairly judged. There may be little public sympathy for Hicks. The toughest test of a democracy, however, is its willingness to uphold the rights of its least popular citizens. Hicks should be properly tried or brought home.
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Quote of the day:
JOHN HOWARD, PRIME MINISTER: [...] those allegations had been extensively investigated over a two-month period.
RADIO ANNOUNCER: 774 ABC MELBOURNE By whom?
JOHN HOWARD: Well, by the people against whom the allegations were made.
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Australian Broadcasting Corporation
TV PROGRAM TRANSCRIPT
LOCATION: http://www.abc.net.au/7.30/content/2005/s1428676.htm
Broadcast: 02/08/2005 Govt under pressure over Guantanamo trials
Reporter: Tracy Bowden
KERRY O'BRIEN: The Federal Government is also facing calls to re-think its support of the American military system that will try Guantanamo Bay detainee David Hicks. A date has not yet been set for the trial of the Australian who has pleaded not guilty to charges of attempted murder, aiding the enemy and conspiracy. But, as revealed yesterday, leaked memos from two of the Pentagon's own military prosecutors suggest that Hicks will face a system with a stacked panel of judges, set up only to convict. The revelations provoked a further expression of concern from the senior officer on Australia's military bar, but the Government says the emails have been investigated and their claims rejected. Shortly we'll speak to Foreign Minister Alexander Downer, but first Tracy Bowden with a brief update.
PAUL WILLEE QC: When you've got the process with the military being the captors, the interrogators, the people who lay the charges, who prosecute the offences and there is an executive watching over them but no independent formal appeal process, then that has all the hallmarks of being a fairly unfair system.
TRACY BOWDEN: Queen's Counsel Captain Paul Willee, the head of Australia's military bar, reflects widely held legal misgivings about the military tribunal set up to try terrorist suspects at Guantanamo Bay. Yesterday's disclosure of scathing emails written by military insiders has only heightened that concern.
PAUL WILLEE QC: If the emails are true, even if the investigation has been carried out, I'm not sure that it hasn't tainted the process. It certainly highlights the very evils that people were pointing to in the beginning with that process.
TRACY BOWDEN: Captain Willee's comments, which he stresses are personal views, follow the release of emails sent by two US military prosecutors. One of them, Captain John Carr wrote to his superiors:
"I expected there would be at least a minimal effort to establish a fair process and diligently prepare cases against significant accused. Instead, I find a half-hearted and disorganised effort to prosecute fairly low-level accused in a process that appears to be rigged."
TRACY BOWDEN: The Federal Government today tried to play down the significance of the latest claims.
JOHN HOWARD, PRIME MINISTER: Our ambassador spoke again to the Pentagon last night, our time, and the head of the Military Commission operation said that those allegations had been extensively investigated over a two-month period.
RADIO ANNOUNCER: 774 ABC MELBOURNE By whom?
JOHN HOWARD: Well, by the people against whom the allegations were made.
DAVID McLEOD, DAVID HICKS'S LAWYER: Clearly, this has has been a considerable embarrassment to both the United States Government and of course, the Department of Defence. It's also a huge embarrassment, I suspect, to the Australian Government.
TRACY BOWDEN: David Hicks' Australian lawyer, David McLeod, says if the allegations have been investigated by the Pentagon, he'd like to see the results of that inquiry.
DAVID McLEOD: It's said to have taken some two months of careful investigation and so the investigation report will obviously be long and detailed, and we ask the Government, we call upon the Government, to call for a copy of both the investigation and the report.
TRACY BOWDEN: Melbourne barrister Lex Lasry, who was the Australian Law Council's official attorney at Guantanamo Bay, says the chance of a fair trial for David Hicks is negligible.
LEX LASRY QC: If he can't be put before a proper military justice or civilian justice process in the United States, then he should be brought back to Australia. No question. The Military Commission's, for my part as a matter of opinion, are just simply not an option.
DAVID McLEOD: If the military process is determined to proceed, then we would like to see the rules that apply to military courts martial in America adopted by the Military Commission. It's as simple as that.