Abuse coverup of Gitmo detainees and unfair process.

Walter Hinteler
Reply Tue 2 Aug, 2005 11:53 am
As old europe (I think it was him) said on another thread, one can be against soemthing because one's own history showed how false an idea is.

That's why I'm generally against any special courts, especially military courts.

But since I still remember some parts of my law studies as well as history courses, I certainly know that different countries don't have only different law systems but also their court system is differently organised.

I like our system here, where everyone "knows" the judge he gets:

[Basic Law]
Article 101
(l) Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge.

(2) Courts for particular fields of law may be established only by a law.
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Reply Tue 2 Aug, 2005 11:03 pm
dlowan wrote:
goodfielder wrote:
The world used to look to the US as an exemplar of the rule of law and as a good international citizen. Finished now.

America had had its virtues - but enough dirty doings that I doubt many ever saw it as an exemplar, exactly.

Fair point. Best of a bad lot?
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Reply Tue 2 Aug, 2005 11:09 pm
McGentrix wrote:
goodfielder wrote:
On the specific issue of the prisoners in Guantanamo, we are in compliance with international law. That is the expressed position of our government and the proposition is defensible. Others may disagree, but that does not make us guilty

As I said, the idea of the US being an exemplar for the rest of the world is finished now.

I'm just sorry that my government won't protect the interests of its nationals when those nationals are in the custody of the US and are about to be subjected to corrupt kangaroo courts.

So who would take our place?

I know nature abhors a vaccum but I'm not sure anyone can. Maybe this just an eight year interruption? After the Bush Administration has gone and government at all levels in the US has regained its sense of right and wrong maybe it will be like it was before Bush. I hope so. Perhaps Europe but they are squabbling so much between themselves and seem to be pretty inward-looking that they might be too preoccupied.

I taking dlowan's point but I must also add that no world power that has ever warranted the term has been totally without fault. It's a question of reining in the excesses.
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Reply Wed 3 Aug, 2005 03:16 pm
goodfielder wrote:

As I said, the idea of the US being an exemplar for the rest of the world is finished now.

I'm just sorry that my government won't protect the interests of its nationals when those nationals are in the custody of the US and are about to be subjected to corrupt kangaroo courts.

As indicated earlier, I don't believe the U.S. ever sought to be or was ever acknowledged by others as an exemplar for the rest ogf the world. If is is finished, that is OK as it was never started.

It is neither fair nor accurate to characterize the proposed special tribunals as "corrupt kangaroo courts". Setants previously outlined the procedures and defendent rights in trials under U.S. military law. They are substantial, providing more process, more discovery and prior disclosure, and broader protections under rules of evidence and right of appeal than exist in the criminal laws of all states and the Federal government, and far more protective of defendent rights than are (say) those in the criminal codes of Britain or France.

Not all of this would be availavle under the Special tribunals, but it is clear that compsrable legal protections will be provided. The "corrupt kangaroo court" characterization is an obvious falsehood - particularly as no such trials have yet occurred.
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Walter Hinteler
Reply Wed 3 Aug, 2005 03:39 pm
georgeob1 wrote:
... and far more protective of defendent rights than are (say) those in the criminal codes of Britain or France.

Which missing rights do mean exactly?

(The mimal rights everyone in Europe [= all Europe] has, are defined in the 'European Convention of Human Rights:
begin of quote
Article 6: right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7: no punishment without law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
end of quote)
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Reply Wed 3 Aug, 2005 04:13 pm
Walter, all that you have enumerated is included in our military law. My understanding is that there is much more prosecutorial discretion available under the law in Britain and France in particular than there is here. This refers to things like detention without formal charges, interrogation and confessions, and flowing into defendant's rights of discovery during investigation. In any event the issue in Guantanamo involves illicit war, not criminal matters. Many in Europe would prefer that we treated it all as a criminal matter, but we have not chosen to do so -- as is our right.
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Reply Wed 3 Aug, 2005 11:18 pm
If the kangaroo courts are so hunky-dory why all this:

ABC Online

Former judge backs repatriating Hicks. 04/08/2005. ABC News Online

[This is the print version of story http://www.abc.net.au/news/newsitems/200508/s1430050.htm]

Last Update: Thursday, August 4, 2005. 3:11pm (AEST)

Hicks has been held at Guantanamo Bay for almost four years. (ABC TV )

Former judge backs repatriating Hicks
Former High Court justice Mary Gaudron has added her voice to growing condemnation of the way Australian Guantanamo Bay detainee David Hicks is being treated.

Ms Gaudron says detaining Hicks for years without charge and having him subject to punishment without proper access to independent legal advice breaches international norms on human rights.

"It horrifies me to think that anyone could think that this is good enough. It simply isn't good enough," Ms Gaudron said.

Ms Gaudron says she agrees with a report by two academic lawyers at the University of New South Wales that it may be possible to try Hicks at home.

"As I understand it, he's been charged with conspiracy," she said.

"It's always been possible to charge a person in one country with conspiracy to do acts in another country if there is some relevant connection with the country in which the charge is brought.

"So it's not entirely obvious to me that he couldn't be dealt with in this country."

Hicks is due to be tried by a US military commission. The ABC has revealed in recent days that three prosecutors have left the commission because of concerns the process was rigged and unjust.

'Not working'

The US military lawyer defending Hicks, Michael Mori, says Prime Minister John Howard should not be confident that the US is dealing with Hicks fairly.

Mr Howard has said the best way to achieve justice in Hicks's case is to go ahead with the US military commission, despite claims from within the US military that it is set up to ensure a conviction.

Major Mori says his client has made two preliminary appearances ahead of his trial and notes that observers from the US Bar Association and Human Rights Watch found those processes to be unfair as well.
"All of them came back and reported that the system was not working and it would not provide a fair trial but the Government completely ignored all of those reports," he said.

"So I'm not really sure what he's hoping to gain from having a trial, having more reports and then they'll just ignore those."

An Australian lawyer for Hicks says the Federal Government has also declined to give financial assistance for another Australian lawyer to assist in his case.

David McLeod was to be joined by a second lawyer to work as foreign legal consultants in Cuba to help Hicks's military defence team.

A spokesman for federal Attorney-General Philip Ruddock has told Mr McLeod that the Government cannot afford to help both lawyers.

Hicks turns 30 this Sunday, his fourth birthday in US detention.
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Reply Sat 6 Aug, 2005 03:33 pm
goodfielder wrote:
"Ilegal combatant" - has the ring of the law about it. I have no idea where the origins of that idea came from. I would ask how they got that designation and under what legal system. See my first paragraph for the source of my wonder.

Outside the Geneva Conventions? Sez who? Sez the Bush Administration? Sez the invading force. Nice move.

An illegal combatant is one who did not fight according to the rules of war, and so does not receive all the protections given to POWs under Geneva 3.

Since the people in Afghanistan were not fighting us wearing proper uniforms, they were illegal combatants.

They are not outside all the Geneva Conventions though, just outside Geneva 3 in particular.

They can be detained incommunicado for the duration of the war, but the Geneva Conventions still require that they receive fair trials if prosecuted, and prohibit their torture.
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