Analysis from this morning's SUNDAY AGE:
The sad circus is moving but has a long way to go
Penelope Debelle
February 4, 2007
This sad circus is far from over. It will continue until the charges against Hicks have been picked up and progressed by the convening authority for the not-yet constructed military commissions.
It could go on until Hicks has been tried, which may or may not be by the end of this year.
And it could well roll on in the diplomatic dance between Canberra, Cuba and Washington for another year or two while the new commissions deal with an almost certain fresh US judicial challenge.
The only possible final curtain for the David Hicks case can be when he stands on Australian soil, either to serve out the remnants of a prison sentence handed down in a legitimate legal process, or to see to his family before heading off to find the nearest piece of the great Australian outback where he can be both forgotten and free.
The handling of Hicks' case is building a momentum, which last week became a frenzy of dramas, accusations and responses about the conditions in which Hicks is held, the progress of his case, and his physical and mental state.
This time, Major Mori, US attorney Josh Dratel, McLeod and a second foreign attorney consultant Michael Griffin, were on the ground in Guantanamo and phoned or emailed information about Hicks' condition.
They raised the stakes partly in response to heightened media interest but also because they smell a shift in public opinion.
As David McLeod said before he left, irrespective of what Hicks might have done, many Australians believe the handling of his case no longer passes the commonsense test.
Their on-the-spot attacks and rebuttals derailed what would otherwise have been a successful response from Foreign Affairs Minister Alexander Downer, who despatched the Australian consul in Washington, John McAnulty, to Guantanamo Bay.
Downer's office properly sought to allay concerns about Hicks' state of mind by sending a representative to make sure Hicks was all right.
But Hicks' lawyers were able to give their view of what happened. In a farcical turn of events, the consul tried to see Hicks but was instead handed a signed letter from Hicks saying he did not want to see him, was afraid to and in the past had been punished for complaining.
"If you want to do something for me then get me out of here," Hicks wrote.
While Labor put the pressure on daily and the Democrats called for an independent psychiatric assessment, there was confusion in federal ranks about whether a mental assessment should be sought and by whom.
After a US military psychiatrist went to see Hicks, Downer said Hicks was well, although frustrated, yet the lawyers claimed the assessment took less than five minutes, the psychiatrist took no notes, and Hicks was under the impres- sion she was there to see him about a stomach complaint and that was all he had talked about.
The focus will now shift to Washington and the charges that will first be sworn by the prosecution then assessed and adopted by a convening authority not yet in public existence.
Major Mori believes the prosecution is keen to charge Hicks to fit John Howard's mid-February deadline, but it is far from certain that the convening authority will be in place and ready to act in time.
The military commissions have not been set up to try David Hicks, who trained with al-Qaeda before September 11, met Osama bin Laden and did some surveillance and guard duty in Afghanistan without engaging in a known terrorist act or even firing a shot.
They are after much bigger fish, some of al-Qaeda's most senior men who were shifted to Guantanamo Bay from secret CIA rendition sites in September last year. A special war room has been set up by the Bush Administration to prosecute these men, who would embody the evil that al-Qaeda has unleashed on the world since 2001.
Hicks is tagging along behind, a minor player in the US but a headline act at home.
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