Utterly irrelevent aside, with all due apologies…
“…first cab off the rank…”?
I’m not sure about legal obligations, but i’m pretty sure the government will honor the agreement. Partly because Australia (or at least the ruling coalition) is a staunch supporter of Bush and his policies, and doesn’t want to embarrass the American government.
Also, and perhaps somewhat paradoxically, the unpopularity of the Iraq war, and of Bush and his policies, among the Australian people, has turned the Hicks case into something of an albatross around the neck of the government. Support for the government is almost at Bush-level lows, and Australians from all parts of the political spectrum, including some people inside the ruling coalition, have been calling for Hicks’ return in increasingly angry tones. The government will be relieved to have him home, and the sentence decided, so it can attempt to divert attention away from the issue.
None of this suggests that Hicks is a complete innocent. Even those who have called for his release concede that he trained in Afghanistan with the Taliban. The main outrage has been at the level of due process (or lack thereof) accorded to Hicks and to the Guantanamo detainees generally. There has also been considerable anger over the government’s refusal to intercede for Hicks. Many have argued that Australia’s status as a staunch member of the “coalition of the willing” gave the government an opportunity to try and influence the Hicks case, to at least get him processed quickly.
I’m not sure how i feel about this last point. I’ve never been a big fan of one government asking another government to change its legal procedures as a special favor for one person or government. Personally, i believe that the outrageousness of the whole process for dealing with these Guantanamo prisoners is clear and undeniable, and should be addressed by the American government, but i don’t think a special exception should be made just for an Australian. The system needs fixing.
elucidator: “first cab off the rank” just means, essentially, first in line, or first to go. It’s a common colloquialism in Australia. Taxis are known as “cabs,” as in many other parts of the world, and a designated taxi pick-up area is often called a “rank.”
As i said in my previous post, very few people are arguing that Hicks did nothing wrong at all. But…
The US dropped, or had dismissed by the judge, all charges except the charge to which Hicks pleaded guilty: providing material support for terrorism.
Some, including Hicks’ military lawyer Major Michael Mori, have pointed out that this crime was not even on the books when Hicks was captured in Afghanistan in 2001. It was passed into law much more recently, and these folks argue that it’s not right to charge someone for a crime that didn’t exist when he allegedly committed it.
And, in a justice system with integrity, the way that the accused is treated by the system has some influence on questions of guilt and innocence. If you are arrested, and the police beat a confession out of you, then that confession will probably be tossed, and there’s a good chance you’ll be found not guilty. Of course, the nitpickers will argue that Hicks is not an American, and can’t expect the same rights that we would expect when we’re arrested here in the US. But i’m talking here about matter of principle, of what’s right; not about narrow jurisdictional issues.
I’ve said from the beginning that is Bush really wants the world to look to America as an example, if he really thinks the American justice system is the standard for systems everywhere, he should put his money where his mouth is and accord his prisoners the processes and protections that are central to that system. If that system isn’t good enough for dealing with the folks at Guantanamo, maybe it’s not quite the system he claims it to be.
I didn’t ask the question of you but thanks for the well thought out answer. I can’t comment on the subject and I have kept out of all previous threads for a reason. I’ll bow out of this one.
How does an American court, civilian or military, have the authority to sentence a convict to prison in a foreign country?
The same way an Australian court can sentence an American citizen to prison and then, by agreement between the two countries (aka, treaty), permitting the convict to serve his sentence in an American prison. In such a case, the Australian court did not sentence the defendant to an American prison, but rather to serve a particular time in prison. The treaty permits the individual to serve his time in his home country.
Well, i’m not sure it’s so much a question of authority as of an arrangement between the two governments.
The US can obviously sentence someone to prison in America. But they presumably agreed, in consultation with the Australian government, to allow him to serve his time in Australia. In return, i’d be willing to bet that the Aussie government had to agree not to simply release him when he gets home. I’m also assuming that it would be a federal prison, over which the national government has jurisdiction, rather than a regular state prison.
On preview, it’s probably also a matter of specific treaties, as Monty suggests. The ANZUS treaty, perhaps? I don’t know.
This has been kicking around in my brain for awhile, so I figured I’d share.
I’m thinking that this won’t be the last we hear from Hicks and the tribunals. Now that he has pleaded guilty and is going to Australia, I’m guessing the legal challenges are now really going to begin. I’m guessing, but I forsee that he will have attorneys file an appeal in the US, as well as a habeas (assuming they have that in Australia), challenging all of the proceedings in Guantanamo. As mhendo pointed out, there is an ex post challenge for pleading to something that wasn’t a crime when he committed it. More importantly, I think he’ll challenge the jurisdiction on the basis that the crime isn’t a traditional violation of the “laws of war”, which might strip the tribunal of its jurisdiction.
Personally, I think it was a shrewd legal manuever by Hick’s attorneys. Rather than staying incarcerated in Guantanamo forever, he pled guilty and got a sentence and a transfer to Australia. Now, he’ll be able to challenge his detention in the civil courts, (whether US appeal or habeas, or Australian habeas), without having to argue it all in the military commissions first. Since it would be legal, according to this administration, he could have stayed incarcerated forever without trial in Guantanamo. Now, he has a term of years and a chance to challenge his detention in real courts. Good move.
I hope he writes a tell all about the goings on at Guantanamo anyway. I’d really like to hear what his side of the story is. With a little luck, he hasn’t been overly psychologically damaged by the ordeal and can compose a coherent narrative.
And now the sentence is in: nine months.
The wording of the article suggests that this is nine months on top of the five years of incarceration he’s already had.
These days, I would be overjoyed if my government honored its legal procedures.
What a deal:
It sounds very much like the military cut Mr. Hicks a short sentence in return for his silence on ‘illegal treatment’.
What if he breaches the one year gag order? Let’s say, eleven months from now, he’s released, and as a free man on the streets of South Australia, he calls a press conference and says, “Hey, guess what? They were right bastards to me in Guantanamo!”
Is he going to be rearrested by the Australian authorities, and extradited again, this time back to the US? Or can he just thumb his nose at a judge on the other side of the planet?
I don’t think the next president will be too interested in re-stirring this up. Still, Hicks might want to watch his daily thallium intake for the next couple years.
I think the gag order demonstrates pretty clearly what the American government’s priorities are in this case, and “justice” isn’t really a word that comes to mind.