Bring David Hicks home (from Guantanamo) before Christmas!

... meanwhile, back in Oz ... :

Green light for Hicks to sue
Geesche Jacobsen
March 9, 2007/SMH

David Hicks is expected to bring a case seeking to force the Federal Government to ask the US government to free him, his lawyer said outside court today.

The government failed in its bid to have the case thrown out of court and Federal Court Justice Brian Tamberlin said because of its long history and the great importance of the issues, the matter should be expedited.

He said the case raised the constitutional questions of the relationship between the courts and the government, and the extent to which the court could look at matters affecting foreign affairs.

The case also raised the question of interaction between protection of individual liberty and the national interest.

The government had argued his case had "no reasonable prospects of success" and should not be allowed to go ahead.

Hicks' legal team would still consider if they would call government ministers to give evidence, his Sydney solicitor John North said. The case could go ahead in a matter of weeks.

http://www.smh.com.au/news/national/green-light-for-hicks-to-sue/2007/03/08/1173166870543.html

More:

Government loses move to dismiss Hicks case
March 8, 2007 - 3:51PM/the AGE

The federal government has failed to stop the Federal Court hearing a case by lawyers for David Hicks who are trying to bring the Guantanamo Bay inmate home to Australia.

Federal Court Justice Brian Tamberlin today dismissed a strike-out application made by the government in response to action brought by Hicks' legal team.

Lawyers for the 31-year-old Muslim convert have taken action against the federal government, Attorney-General Philip Ruddock and Foreign Minister Alexander Downer, seeking declarations and an order that could lead to the release of Hicks from the US military prison.

The government lawyers argued the action should be dismissed because Hicks' claim had no reasonable prospect for success.

But Justice Tamberlin today ruled Hicks would get his hearing, ordering the strike-out application be dismissed and the hearing expedited.

"Due to the long history of this matter and because of the great importance of the issues, the matter will be expedited so that it is heard at the earliest possible time," he told the court.

The submissions made by Hicks' lawyers raise "important constitutional questions as to the relationship of the judiciary and the executive, the interaction between the protection of individual liberty and the national interest, and involve questions of foreign affairs," Justice Tamberlin said.

Speaking outside court, Hicks' solicitor, John North, said the hearing could go ahead in the coming weeks.

"This is a major step forward for David Hicks. We now have a court that will look at his conditions and the fact that he has been put in Guantanamo Bay," he said. ........

http://www.theage.com.au/news/national/government-loses-move-to-dismiss-hicks-case/2007/03/08/1173166870381.html

What an extraordinary situation.
There's now a strong possibility that the US military trial (where David Hicks will plead not guilty) & the hearing in the Australian federal court (where it will be argued that the court force the Australian government to request that Hicks be released from Guantanamo Bay & returned home) will both take place at the same time!

While that would be truly an interesting event to see, I expect that the Federal Government will be able to keep delaying the court hearing long enough that the US hearing should be finalised first.

I'll be picking David up from the courthouse, and taking him on a three-day binge session on the sunny coast.

Heaven help anyone who gets in our way.

Well, vikorr, David Hicks is being treated as but nothing a pawn in a very ugly political game. Anything is possible when US face-saving & Oz election results are at stake. Anything.

It is interesting to me that the prime minister of Australia announced the date of David Hicks's military court trial. Not the US authorities who are responsible for the trial arrangements. And this announcement beat the Australian supreme court decision that the Hicks hearing would go ahead, by just a few hours. Hmmm ....
This is like watching some sort of match or game. Tit for tat. You just wait too see what the next tactic will be, to out-wit the opposition, from both sides. Poor Bloody David Hicks. Talk about being the meat in the sandwich!

BTW, the Hicks (Guantanamo) trial has been delayed for a week:

Guantanamo Bay detainee David Hicks' trial has been pushed back a week due to a defence team scheduling conflict, his military lawyer Major Michael Mori says.

Major Mori said reports that the prosecution requested the delay until March 26 were incorrect.

He said the original arraignment date of March 20 was made public before the March 9 deadline for the defence team to request a later date.

The judge's office had originally offered either March 20 or March 26 as a start date, he said.

But the New York-based civilian defence lawyer Joshua Dratel was unavailable the first week due to a previously scheduled US federal court appearance.

"The defence requested the date be moved to the 26th to permit David Hicks to have his US civilian lawyer present,'' Major Mori told AAP.

Prime Minister John Howard earlier this week announced Mr Hicks would appear in a US military commission for arraignment on March 20 at the US naval base in Guantanamo Bay, Cuba. .......
http://www.theage.com.au/news/world/defence-requests-trial-delay/2007/03/10/1173478703201.html

Looks like JH jumped the gun by his timely announcement!

`

If only, Builder!

Me, I'd love to know what wheeling & dealing is going on behind the scenes. Oh to be a fly on the wall!

Delayed by a week? Has the AFL tribunal got a hand in this?

Now I know sacasm is the lowest form of wit but you'd think after 5 years they'd be ready!

It's the defence team that has caused the delay, dadpad.
The date was announced the (Guantanamo) before they'd had a chance to respond. One of David Hick's US lawyers isn't available at that time.

(Nope, the AFL tribunal has nothing to answer for here ... surprisingly! Heaps else, but not the trial date.:wink: )

You know, I still have my doubts this trial will go ahead. "Providing material support for terrorism" as the sole charge? After 5 years & two months (so far!) delay? A pretty flimsy case for one of the first cabs off the Guantanamo rank! No wonder they want to keep the press outa there!

Well no surprises in this news story. Of course they've never attempted to bring him home!
But Philip Ruddock's comment (last paragraph) is certainly news to me. I thought the Australian government was always committed to the trial proceeding (& presumably for Hicks to be found guilty). This is the first I've heard of alternative plans for David Hicks if his trial didn't proceed.

Interesting, though, about the desire to reduce numbers at Guantanamo. An awful lot of trials to get through, otherwise! :wink: :

Last Update: Saturday, March 10, 2007. 7:37pm (AEDT)

Lobby group says Govt hasn't asked for Hicks's return

The Perth-based lobby group 'Justice for David Hicks' says comments by the United States Defence Secretary clearly show the Federal Government has not asked for Hicks to be returned to Australia.

Robert Gates wants to reduce the number of inmates at Guantanamo Bay but says the facility has inmates who would attack the US if released and others whose home countries do not want them.

The head of the lobby group, former WA premier Peter Dowding, says Hicks does not fit the first category so it is clear the Government has never tried to have him returned home.

"We've been saying for a long time that the Prime Minister should demand Hicks's return just as Prime Minister Blair demanded the return of the British inmates, and it's clear that although he's had the opportunity to do it he's simply let Hicks down," Mr Dowding said.

The Federal Attorney-General's office says it has always been the Government's position that Hicks would be brought back if it was clear the case against him would not proceed.

http://www.abc.net.au/news/newsitems/200703/s1868526.htm

By the way, has anyone ever read anything about why Guantanamo Bay was used as it is for 'detainees' like Hicks?

I'm guessing that while these political prisoners are not actually on US soil, then the laws governing their incarceration are not subject to US laws, nor the Geneva convention in regards to prisoners of war.

Yes, that's right. For much the same reason that so-called "illegal immigrants"/asylum seekers are detained off-shore, on Nauru. So they can't have access to the Oz legal system to appeal their cases.

Well, yes...I see my question was badly put. It's fairly obvious that they were put in Guantanamo because the American heirachy could argue that they weren't subject to US law courts there...the question I meant to ask is - Why would the US feel the need to put the detainee's in such a position.

Now, the obvious answer is - because they had no evidence of any civilian offence and would have to be released.
................
I came across this explanation in a book I read...this explanation is in no way a justification of Hicks treatment...I think it hypocritical/wrong that any country can 'champion justice and freedom' and treat anyone in this fashion - such things corrupt the foundations of democracy in my opinion...

That said - below is simply one of the explanations of the difficulties faced by the US in the aftermath of 9-11

I've lent the particular book containing this explanation to my brother, so I'm going from memory on this :
..............
Now, after 9-11 the US faced a dilemma.

Civilian law enforcement is by it's nature reactive - that is, they act AFTER an offence has been committed...which doesn't help much in preventing a terrorist attack (they didn't have workable legislation in place at the time to help prevent such things)

The army could be seen as a pro-active method of prevention, as many Civilian rules are suspended in war...however the use of the army inside the US for such a purpose, and in the manner the army is trained to operate, would cause a huge political backlash.

So perhaps the US intelligence services should be the ones to do the prevention you say?...of all the US intelligence agencies, the one best suited to tracking and preventing an internal terrorist attack - the CIA - is not allowed to conduct operations on US soil (something to do with their constitution if I remember right)

And nor was the US in a position to properly gather and analyse intelligence (there are multiple different intelligence agencies, and while they were meant to share all their intel with the CIA, in practice this barely use to happen...don't know how much it's changed since)

The US, in the immediate aftermath of 9-11 face the dilemma that they had no true way of effectively preventing terrorist attacks (they had only ever had to deal with plain hijacks and hostage takings up until this point).
.....................
Now in relation to the detainee's taken...the US understood that Afghanistan was the stronghold of Al'qaeda, and that when they went to operations against them in Afghanistan, there would be Taliban and Al'Qaeda training camps...they took prisoners, but what were they to do with them?

Strictly speaking, these prisoners weren't conducting operations against the US - they were just training...yet there's little doubt that they were training for operations against the US or other countries...

...the problem is, if the US took them prisoner by firing shots at them, they have every right to defend themselves under civilian law...and if they took them hostage by a silent midnight raid...well...exactly what have these people done legally wrong?

...under the Geneva Convention they don't match the criteria for Enemy Combatants (they have to be wearing a standardised uniform for one thing)...and Enemy combatants are what you face, when you go to war...in most every other war...except this one (this is why you will have heard the term 'enemy non combatants'). So were they in fact enemies?

...once again...there is little doubt they were training for operations against either the US or other countries...but it was the possibility of actions against the US that the US was concerned about.

So the US apprehends these people that they believe are a threat to the US...what do they do with them?

If they placed them before civilian courts, there is little doubt each and every one of their cases would be thrown out (due to the current laws, and the standard of proof required).

And it would be legally difficult to place them before a military court due of the Geneva Convention...which was never written for a 'war' like this one.

What then was the answer to US security?
................

That came from a book called 'America's Secret War', which isn't a conspiracy theory like the title sounds (actually, reading the book, I'm not even sure why it's called that). It's written by the Chairman of a GeoPolitical analytical company (fancy term for analysing and trying to predict actions of countries around the globe by combining info on current politics, culture, economics etc)

My attempt above is not entirely accurate (as it's from memory, and no where near as detailed).

I think I'm with you, vikorr. That's a plausible explanation from the US government's perspective, post 9/11. That makes sense.
What they (obviously) hadn't factored in (at that stage) is that this could become a "war" without end. The assumption would have been that the US, with it's superior military power, would automatically "win". Now, having lost the "war" abroad & also the hearts & minds political war at home, they're still stuck with all those prisoners at Guantanamo Bay .... & have to figure out a way to wriggle of a legal minefield without losing too much face. If only every country with nationals incarcerated at Guantanamo had simply demanded them back & dealt with them at home, like the UK, Spain, etc ...! That would have gotten GWB & co. off the hook. But now they're stuck with potentially endless, damaging military trials which will be closely scrutinized by the whole world.

Last Update: Wednesday, March 14, 2007. 1:16pm (AEDT)

Hicks's lawyer defends US court application
By Conor Duffy

The Australian lawyer for Guantanamo Bay detainee David Hicks has hit back at suggestions that legal action to delay a military commission hearing is not in his client's best interest.

Foreign Affairs Minister Alexander Downer says Hicks's US-based lawyers have sought a stay application in a Washington Court that could delay the trial, scheduled for later this month.

Mr Downer says he is concerned that action could extend Hicks's five-year imprisonment at Guantanamo Bay.

Hicks's Australian based lawyer, David Mcleod, says he does not have the full details of the action but he understands it seeks to delay the trial until after a Supreme Court decision on the legality of the military commission.

"My understanding is that it would be inappropriate in the American lawyers' eyes for the commission process to start when it's awaiting a Supreme Court ruling," he said.

Mr Mcleod says he expects there will be a decision on the stay order in the next day or two.

"The Government would be a lot more helpful if it sought to uphold David's rights rather than to push him in a direction that is perhaps counterproductive," he said.

http://www.abc.net.au/news/newsitems/200703/s1871514.htm

Found this unsubstantiated mini-biography on David.

Any idea if it's based on truth, msolga?


Article from December 2001 was in The Age.


Quote:
By PENELOPE DEBELLE and STEVE GIBBS


David Hicks, the Australian captured this week with alQaeda fighters, was yesterday portrayed as a troubled man with a dark side and a fascination for fighting.

But he was also a man who became a doting father at 17 and was devastated when his relationship with the mother of his two children broke down around the same time he lost his job four years ago.

Jason Gray, a former schoolmate of Hicks, now 26, knew both sides of the man who has caused a political and legal crisis for the Australian Government.

It was not clear last night whether Hicks was being detained in Afghanistan by the United States military or the anti-Taliban Northern Alliance. But a spokeswoman for Attorney-General Daryl Williams said Australian officials were seeking urgent access to him so they could interview him to determine what criminal offences he may face if he is returned to Australia.

Hicks' father, Terry, yesterday labelled his son a terrorist: "I think of a terrorist as someone with a bomb strapped to him, but he's a terrorist in our eyes as he's fighting against his own kind."

Mr Gray said while he had "never actually seen him as a military person", he had thought Hicks suffered from "short person fever".

He often tried to act tough by starting fights with fellow employees at a kangaroo slaughterhouse in Adelaide, Mr Gray said.

Mr Gray, 25, who weight-trained with Hicks, said his friend injected a form of veterinary steroids that may have contributed to a deep moodiness he developed before travelling overseas when his family life deteriorated.

"He was pretty serious, he was taking steroids for while," Mr Gray said. Hicks, who was short and stocky, took the drug because it increased his bulk. He had a weight studio in his house and could bench press 100 kilograms, Mr Gray said.

Hicks' obsession with his personal appearance suffered a setback when as a youth he lost three amateur boxing matches in the 51-kilogram class.

His foray into the martial art of stick fighting was more successful and he became an expert at wielding the 45-centimetre bamboo sticks at high speed, according to Mr Gray.

Hicks, born in 1975, grew up with his parents in Adelaide's northern suburbs and attended Smithfield Plains High School. The school's principal, Kate Taylor, said records showed Hicks was a "normal" student whom one English teacher thought had the "ability to excel".

But he abandoned formal education at 14 and headed off to the remote township of Borroloola on the Barkly Tablelands, 1000kilometres south-east of Darwin.

The town librarian Val Andrews remembered him as a quiet, serious man when she met him in the early 1990s.

Hicks was in town to ride in a rodeo but earned extra cash by working at the local pub, the Borroloola Inn.

"I served him in the bar at the rodeo," Ms Andrews said yesterday.

"He was a scrawny looking fellow, very quiet. He was a young ringer looking for adventure." When he returned to Adelaide, Hicks fell in love with an Aboriginal woman, Jodi Sparrow, with whom he had two children, a girl, now 9, and a boy, 7.

The family broke up in 1997. Hicks lost his job soon after and became depressed, Mr Gray said.

Last night, Ms Sparrow told Channel Nine: "David's not the animal that everyone thinks that he is. He's a caring person, who's just been misled by some persons I don't know."

Her father, Dennis Sparrow, said Hicks had continued to see his children weekly but that eventually ceased. "He had no contact with the kids, no cards on birthdays, nothing, so to me he wasn't part of our family any more," Mr Sparrow said.

Despite not having seen their father for several years, Hicks' children recognised him as the man carrying a bazooka on his shoulder in a photograph published on the front page of newspapers yesterday, Mr Sparrow said.

He said Hicks deserved to be punished. "He did the crime, he should do the time. As much as he's my grandkids' father, he knew where he should be, he knew where his roots are and that's here," Mr Sparrow said.

How Hicks came to be fighting with al Qaeda is not clear, but it is known that he worked as a horse trainer in Japan before travelling to Kosovo where he became interested in Islam and fought with Albanian Muslims against the Serbs.

He returned to Adelaide to study the Koran and formally converted to Islam in 1999, subsequently changing his name to Mohammad Dawood. It is thought he was recruited by al Qaeda when he travelled to Pakistan in late 1999.

Nice, and Al Queda member and msolga wants him free. Why don't you take him in girlfriend (assuming he gets out)? I'm sure he won't harm you.

Hi Builder

Is it based on "the truth"? Well, who knows for certain?

For what it's worth, here are my thoughts on the article:

Let's see, the article is dated December 2001:
Not so long after the tragedy of 9/11, closely followed by the invasion of Afghanistan in October ... At that stage there was enormous sympathy toward the US & an acceptance that it had the "right" to retaliate to 9/11. In that context is is quite possible that Terry Hicks could have described his son as a "terrorist". He certainly sounded like a prodigal son (from all the accounts I've read). I'm guessing Terry Hicks responded as a father at the end of his tether with his troublesome son, who had this distressing habit of rushing off recklessly looking for adventure in the wrong places. And he probably thought David would be treated fairly reasonably by Australia's close ally, the US.
But as we have seen, very publicly, Terry Hicks has gone through a huge political transformation as a result of his son's incarceration for so long at Guantanamo Bay.
So if he did call his son a "terrorist" in 2001, that was simply his opinion, at that time. It can't be seen as a confession of guilt by David Hicks, himself. It's interesting that the strongest charge that the prosecution can come up with is "providing material support for terrorism". There is absolutely no proof that David Hicks actually killed anyone in Afghanistan & was involved in combat there. If there was, surely charges against him would reflect this? Heavens above, they've had over 5 years to pin far more damning charges on him, with torture & solitary confinement as "encouragement" to do so.

I find it interesting that the article is from the AGE. Just shows how much perceptions have changed since 2001. The AGE is now one of the most vocal media supporters of the campaign for justice for David Hicks. And rightly so.