Oh say can you hearsay…

The majority of Australians are outraged by the treatment of David Hicks – so much so, in fact, that even John Howard and Philip Ruddock, of all people, recently aired concerns about the process. So what do the Americans do? Create a tribunal that allows dodgy evidence obtained through coercion or hearsay. In other words, they’d admit evidence where a Guantanamo inmate was deprived of sleep until he said “My friend told me that David Hicks said Osama bin Laden was awesome.” And not only would they accept it – it’d probably be enough to get Hicks executed.

Really, it’s a return to The Crucible-style witchhunt justice. And in case the military commission needs even more conclusive evidence of his perfidy, I have a friend who swears she saw Goody Hicks dancing with the devil.
Are these rules about a fair trial really all that important? Well, don’t take my word for it, as respected as it may be in the circles of power. These rights are considered so fundamental and universal in America that they’re enshrined in the Sixth Amendment of the Constitution, as part of America’s Bill of Rights. Which reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
They’ll say it’s not a “criminal” prosecution, he’s an “enemy combatant”. We can safely disregard this fictitious distinction, created only to get around centuries of legal tradition.
Obviously the hearsay right – “to be confronted with the witnesses against him” – isn’t happening, so how does this process score in terms of the other criteria? I’m not able to read the minds of the framers of the Constitution (unlike many on the US Supreme Court), but I’m not sure the Founding Fathers had five year delays in mind when they specified that trials were to be “speedy”. And military tribunals aren’t exactly “public”, are they?
They can’t try him in the district where the crime was committed, because it was Afghanistan, which, let’s not forget, isn’t subject to US law – and arguing that international law applies is a bit sketchy when they aren’t applying the international conventions about the treatment of prisoners-of-war.
As for the jury of the peers – Hicks’ jury, as numerous critics have pointed out, will be made up of military personnel, who work for the US Government and presumably have a vested career interest in doing its bidding.
Virtually every right specified here, in fact, has been taken away – I don’t know that anyone’s even been informed of what the accusation is. You’d think five years would be enough time to trump up a few charges.
The one right they have given him is an attorney – although only a military one. He got lucky, though, and the long-suffering Major Mori says in today’s article that Hicks has no chance of a fair trial. And in an update, in fact, he has said his chances are “worse under the new system”. Not exactly encouraging. And even less encouraging is the Pentagon’s reassurance that the trial will start “soon”.
If Hicks was a US citizen, this process surely could not stand. And in all the deluge of excuses as faint condemnations by Australian leaders, the one point that has not been explained is why, exactly, an Australian citizen – or, in fact, anyone – should be afforded fewer rights than those provided by the US Constitution, which is supposed to serve as a beacon of democracy the world over, holds should be extended to all?
I know I’ve written a lot about Hicks recently. But this situation just gets more absurd with every report I read. And to my mind, the most important point remains unanswered. It’s the one that’s been asked by many, including the ALP in recent times. If Hicks is guilty of a crime, as he may well be, why can’t it be proved in a proper court in Australia or the US?
Really, they may as well execute him and be done with it. It’d be more humane than the current proposal.
But perhaps we shouldn’t worry. Because Alexander Downer reckons he’s not crazy. Phew. Although he won’t say how he knows this, or who examined him. Well, I feel reassured.
Dominic Knight