Hicks Deserves Due Process.

In My Humble Opinion
1

I read in the paper this week an article about the Australian Taliban fighter David Hicks, captured in Afghanistan, and his rejected bid in the US District Court for the constutuional right to a trial. David Hicks is being held without access to family or lawyers in Guantanamo Bay, Cuba. A Lawyer and American attorneys argued that Hicks, two Britons and others were being held in contravention of their legal rights. The judge ruled she had no jurisdiction since the base was outside the sovereign territory of the US.

Hicks Lawyer said,“We are going to appeal” and “There is clear jurisdiction. The US military does not have the right to hold people indefinitely without due legal process.” The Australian Government was pushing for a trial in Australia, now their attitude has changed and they will take no action since Hicks may be of ‘intelligence value’ to the US. Under an executive order issued in November by G.W.Bush Hicks and the other detainees are “not afforded the rights of alleged criminals - who can see a lawyer - or prisoners of war.”

Lawyers are considering legal action in Cuba itself if the appeal fails, however the chance of success in Cuba is slim. One of Hicks 's Lawyers saying, “Unfortunately, Cuba and Cuban courts I believe would have difficulty enforcing that judgement [for trial] on the American military.”

Do these people deserve due legal process? No evidence to back US accusations have been offered, no right to see a lawyers or family. Was the American Taliban prinsoner treated in the same manner? Does America plan to make a habbit of taking prinsoners during warfare, hiding them in distant countries and leaving them locked up indefinitely? Is the US inventing a new status for captured combatants, one exclusively for those who oppose US forces or US proxy forces?

I believe this is a dangerous road for the US to take itself and its allies down. If the US and its allies start treating prisoners taken in war this way, how can we expect our people to be treated if capured in war? When individuals or nation states act, they are seen by many to be acting on a maxim. If we abuse the rights of enemy POWs, are we inviting the future abuse of our own.

Perhaps the issue of Sovereignty is related in that the US Govt. believes it has all these ‘rights’ including unilateralism. But as big subscribers to ethic of Dutiless Rights, The US state seems to feel absolutly no obligation to anyone outside of a contract, social or otherwise. Hicks should be returned to Australia to face Australian courts where his countrymen can be more confident justice will be carried out, this is what a good ally should do to express good faith and commmon values. But perhaps our values our not that common, I hear (but have not confirmed yet) that the US expressed it would not return Hicks without a guarantee of conviction. Well I was pretty sure the verdict cames at the end of a trial, not before the right for a trail is even acknowledged.

2

Perhaps he’d prefer justice as dispensed by the Taliban.

Haj

3

I’m concerned about his right to a trial and if the US won’t try him, then I think he should be returned to Australia and tried there. But holding him incommunicado and not giving him a timely trial is wrong.

But it appears that Australia will be going all the way with the US which I find to be a scary thing. Maybe GWB could suggest to Little Johnny that the camps need a bit of a tidy up? :wink:

4

1 Hicks is a human being
2 All human beings are allowed the due process of law when society is convinced they commited a crime.
Hence: Hicks gets due process.
QED.

Unfortunately many people would rather have a taste of vengance instead of making sure that they actually DO have a bad guy. Trials can also be important so that the public can learn about whether or not the government is just throwing people in jail or if they actually do have evidence.

5

I don’t see how Hicks is being denied any of the rights accorded to POWs, aside from actual POW status. Assuming that the war is still going on, and that he was captured in the war, it seems that the US is allowed to keep him for now. I don’t know of POWs ever being granted legal representation or access to the courts. Certainly, the US should just admit that the Guantanamo detainees are POWs, and that they will be returned to Afghanistan when the war is over. Those who may be charged with crimes should be immediately granted access to courts and lawyers.

As of now, the US does not seem to be charging him with a crime, and Australia would certainly have no jurisdiction to.

Perhaps many of us consider it important that America not dispense justice like the Taliban.

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waterj2, I agree with you on the general principles although maybe not is some details.

The prisoners, human beings that they are, do have human rights. There are two reasons why they might be held: either they are POWs or they are suspected criminals. There are no other categories or justifications which would allow a government to hold people.

If they are POWs, then they should be afforded the recognition and rights of POWs. (I believe communicating with their families, visits by the REd Cross, etc are some of them).

If they are charged with crimes they should be given due process of law. If found guilty they should serve their time. If innocent they may still be considered POWs.

But the US has chosen to ignore what it says it stands for, namely human rights and rule of law.

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Exactly. They aren’t. If they were he’d be dead or mutilated a long time ago. The war is still going on and it’s probably a good thing to not let the captured somehow get messages to the enemy. I agree that he should be declared a POW. This whole thing is unprecidented though and it’s going to take time to figure out what the best thing to do is. In the meanwhile, he is being fed, is living in sanitary conditions and has very fine health care.

Haj

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So, our president would deprive certain people of liberty, without due process. It stinks of political posturing, among other things. What next - random searches in the name of homeland defense? Maybe a resurgence of McCarthyism - ratting out our neighbors?

Do we comply with the Constitution only when it serves our purposes?

Bush scares me. Ashcroft scares me. Ridge scares me. These men are dangerous.

9

Of course not. The Consitution applied to U.S. Citizens and legal residents and such, not POWs. The Geneva Convention is what seems to be appicable to me and they should be declared as POWs. When the war is over, they can talk to their families again. In the meantime they should be kept in humane circumstances and not be tortured. They should be thankful that they were captured by the U.S. and not the Northern Aliance.

I’m no fan of these men either but I think you overstate things a bit.

Haj

10

Why does the USA not grand them POW status?

11

Exactly. POWs have never been accorded Constitutional rights, which is pretty much a necessity of war. As far as I know, the US is treating Hicks as a POW, even if it refuses to actually consider him one. In any event, his case seems to be closer to POW than to a suspect charged with a crime. And international law seems pretty clear that POWs can be detained indefinitely and without due process during the course of a war.

As for how we could expect our soldiers to be treated if taken as POWs, I can’t think of a war where Hicks’s treament is worse than what happened to our soldiers. I don’t recall John McCain’s primary worry being about whether he had access to his family or his lawyers.

12

Yowch, now there’s a Freudian slip. The Constitutuon applies…

Haj

13

Is anybody else a little nervous that they can declare people POWs and remove rights from them, when there was no declaration of war, and more importantly, no criteria ever described for the end of such war?

Am I missing something, or is it true that they can now lock people up literally forever without trial?

14

But are they POWs? POWs have defined rights. If they are not POWs, and they are not afforded traditional rights associated with the criminal process, then they are simply political prisoners. That’s a bad thing. Thus my question of why the USA does not want them to be POWs.

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Thanks Muffin. That’s exactly my fear about Hicks and the other prisoners who are not US citizens being held by the US in a foreign country. I’m pretty disgusted that the Australian government is not pushing for either Hicks to be declared a POW or released to Australia.

It scares me too that the US has invented a whole new category of prisoner.

16

Actually, the Geneva Convention explicitly states (Section 5 in general, Articles 70 and 71 in particular) that POW’s be allowed to be in contact with their families.

The problem is, however much he’s LIKE a POW, since he (and his felllow detainees) have not been given OFFICIAL POW statue they don’t have recourse to the Geneva Convention, either.

They also don’t have the assurance that they will be returned home at the end of the war (if this is a war). They don’t know if charges will be filed at some later point.

Being held in limbo without any official legal statue at all is definatly out of keeping with the princples of the Consitution. (And I would hope we’d want our government to live up to those principles even with non-citizens.)

17

Yeah, what Rev, Muffin and Primflorsa said :slight_smile:

I have to learn to type faster.

And water? I bet a major concern of John McCain and every other prisoner of war was getting in touch with their families.

18

Wars are, by definition, armed conflicts between nations.

The Al Qida (sp? drat!) is not a nation. If we grant the POW status, does that not also give Al Qida international status?

Similarly, no rational person could describe the actions, successful & un-, of Al Qida as being in the same class as ordinary murders or robberies.

For the first time in history, private & clandestine organisations have gained the power to wage war internationally, & on a fairly large scale.

A big part of what’s going on is that nobody really grasps what to do. The existing “normal” responses don’t seem to fit at all.

That being said, I feel that the Australian government should be publicly asked if they want him. If the answer is yes, give him to them.
Australia’s rights should be respected in this.

19

Thanx for your input Haj, I should let you know David Hicks was in fact captured by what we know as the ‘Northern Alliance’ and handed to US authorities on the 17th of December.

20

Thanks for the clarification. Change “captured” to “held.”

Haj