Jurists conclude that Hicks charge is retrospective

The only remaining charge against Australian Guantanamo Bay detainee David Hicks is retrospective, according to expert legal advice released on March 8 by the Law Council of Australia.

"All previous charges against Mr Hicks have been abandoned, leaving only the new charge of 'providing material support for terrorism'.

"Law Council President Tim Bugg said, 'The advice, authored by nine of Australia’s leading international law experts, concludes that, without doubt, this offence is not a crime known to the law of war.'

"According to the advice, prior to the enactment of the Military Commissions Act last September the offence simply did not exist in its current form. Furthermore, the legal experts are of the view that the domestic US offences, on which the charge is roughly based, had no application to David Hicks in Afghanistan in 2001.

"'The disturbing conclusion reached is that, although the charge against David Hicks violates the US Constitution, because Mr Hicks is a non-US citizen held in the legal black hole of Guantanamo, the Constitution may not protect him,' Mr Bugg said.

"The advice was authored by Peter Vickery QC, Professor Tim McCormack, the Hon Alastair Nicholson AO RFD QC, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, Mr Gideon Boas, Professor Stuart Kaye and Professor Don Rothwell.

"'When advice this important from jurists of this calibre is made available to us, we believe it should be shared. The debate should be informed, and we have provided the advice to all Australian MPs' Mr Bugg concluded."

Law Council to MPs: Release Hicks Now – the Clock is Ticking
Now that US authorities have conceded that there is no evidence to prosecute David Hicks for war crimes, he should be released and returned to Australia.

In a letter to Australian Members of Parliament, the Law Council has urged quick action to ensure Mr Hicks avoids a trial by military commission. Such a trial would violate the Geneva Conventions.

Law Council President Tim Bugg said, “US authorities have, after five years of military detention, essentially conceded that Mr Hicks’ alleged activities in Afghanistan in 2001 were not illegal at the time.”

“If the US Supreme Court had not intervened and declared the previous military commission system unlawful, one of our own citizens, with the consent of the Australian Government, may have already been tried and convicted on charges that have since been abandoned,” Mr Bugg said.

“This should be of great concern to all Australians.”

Mr Bugg said the only offence Mr Hicks was now alleged to have committed was created last year and is simply a “cobbled together” version of two US domestic offences, which authorities are now trying to apply to him retrospectively.

“It appears that regardless of what new information emerges, or what turn circumstances take, the Australian Government steadfastly refuses to take action to defend David Hicks’ right to a fair trial,” Mr Bugg said.

“If Mr Hicks is not released within a month he will face an ad-hoc military tribunal designed to try non-US citizens according to an unacceptably low standard of justice,” Mr Bugg concluded.

The Law Council’s letter to MPs is available at www.lawcouncil.asn.au

Tagged: australia, usa, david+hicks, guantanamo