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Downer backs Guantanamo military commissions -

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Downer backs Guantanamo military commissions

Reporter: Kerry O'Brien

KERRY O'BRIEN: A short time ago, I spoke to Foreign Minister Alexander Downer in Adelaide.

KERRY O'BRIEN: Alexander Downer, the critics in the David Hicks case just don't go away, do they?
In fact, after nearly four years they seem to keep growing and they all pretty much say this cannot
and will not be a fair trial. Why does none of that sway you?

ALEXANDER DOWNER, FOREIGN MINISTER: Well, first and foremost because of our concern about Mr Hicks
himself. We've never made any secret of this. We have at the moment a struggle against terrorism
and terrorists. The advice we've had, including from our intelligence agencies, is that Mr Hicks is
a dangerous person. He's been involved in training with Al Qaeda. He was picked up on the
battlefield in Afghanistan and he's facing within the context of the American military commission
very serious charges, including a charge of attempted murder and conspiracy to cause war - to
commit war crimes. Now, I mention all of those things because that is an endeavour by me to put
this all into some context. We are very concerned about him. If he were to be returned to Australia
the advice we have is that he would be released because we wouldn't be able to take any action
against him under our anti-terrorism legislation because that didn't come into force until after
his activities in Afghanistan.

KERRY O'BRIEN: But does that mean he's not entitled to a fair trial and by the mere assertions that
you make now you are virtually branding him as a guilty man?

ALEXANDER DOWNER: Well, this of course isn't new what I'm saying. This has been said on many
occasions before, including by people like the director-general, former director general now, of

KERRY O'BRIEN: But he still hasn't had a fair trial. He's an Australian citizen.

ALEXANDER DOWNER: Let me just explain, though, because it's a fair question you ask. He was seized
- I think I am right in saying - by the Northern Alliance, by the American and coalition ally, the
Northern Alliance in Afghanistan, as a combatant. But he was not of course part of an army within
the meaning of the Geneva Convention. So he was an unlawful combatant sized in those circumstances.
Now, combatants in war are held and they are of course detained for the duration of the war. Now,
in this case he was an unlawful or illegal combatant, not being part of an army in the part of the
Geneva Conventions, and so as a result of that he's been detained, but -

KERRY O'BRIEN: But that is what he is to be tried for. That's a charge that's still could be heard

ALEXANDER DOWNER: No, no. I'll explain to you what the charges - that's not right. The charges that
have been brought... the reason he's been detained is, was because he was an unlawful combatant
along with all those other people who've been detained in Guantanamo Bay. The charges against him
are charges - and I'm not saying he's innocent or guilty of these charges - but the charges against
him are attempted murder, conspiracy to commit war crimes and fighting as an enemy against the
United States.

KERRY O'BRIEN: Let's go through the critics -

ALEXANDER DOWNER: They are the charges that have been brought against him.

KERRY O'BRIEN: Let's go through the critics systemically. First the two military prosecutors. Not
one, but two, people charged with building the prosecution case against Hicks and others who have
said they wanted out of that process because the process was thoroughly corrupted. The Hicks trial
rigged. Presumably, that didn't help their careers. So they must have felt pretty strongly about
that. But that hasn't given you any cause for concern?

ALEXANDER DOWNER: Well, it gave us - of course I hadn't and I don't think Philip Ruddock had been
aware of these emails which go back - these emails were apparently sent in March 2004.

KERRY O'BRIEN: Last year.

ALEXANDER DOWNER: Yeah, last year. What we've done is gone back to the Americans and asked them for
an explanation. The Americans have told us, and we just got a reply back from them, or at least a
cable from our embassy in Washington during the course of today, the Americans have told us that
they had a full investigation into the allegations made in those emails, including by the Inspector
General of Defence, there was a very thorough, a very thorough investigation into these allegations
because amongst the material in these emails are very serious allegations. And um, the Americans
have told us that those investigations cleared the Military Commission process. So that -

KERRY O'BRIEN: This was the military investigating itself, Mr Downer, against serious charges of
corrupting the process.

ALEXANDER DOWNER: This is the sort of argument that it doesn't matter who the investigator is
unless it's the ABC, no-one's ever going to take them seriously. I mean, I think the Inspector

KERRY O'BRIEN: Mr Downer, with respect, I think to bring the ABC into this, that sounds a little

ALEXANDER DOWNER: The Inspector General of Defence in the US is somebody you can take seriously. I
don't think we're going to get into the game of smearing his integrity.

KERRY O'BRIEN: No, let me just get this straight. You do agree with me -

ALEXANDER DOWNER: They take these allegations seriously.

KERRY O'BRIEN: This is the military investigating the military and finding the military cleared of
these serious charges. Did they, for instance, say what the motivation was of the two prosecutors?

ALEXANDER DOWNER: I'll be frank with you, you are trying to make a political point and I think
you're trivialising the American military in this way. This was a proper investigation, including
by the Inspector General of Defence. This was a serious investigation into these allegations and
they have cleared the Military Commission process of the allegations made in these emails.

KERRY O'BRIEN: And did they say what the motivation was of the two of prosecutors?

ALEXANDER DOWNER: Maybe I could just explain what the investigation revealed that there were
personnel issues which apparently - which aren't really any of our business - but there were
personality issues, personnel issues, which had led to these expressions of view coming from these
two prosecutors. Now, that is apparently what's happened in this case. But we have gone back to the
Americans. We have asked for an explanation as to what's in these emails and that's the information
that we have been given.

KERRY O'BRIEN: Now this is what the head of Australia's military bar Queen's Counsel and navy
captain Paul Willee had to say today about his ethical concerns about the Pentagon's military
commissions. This is quite apart from his concerns about those emails. This is about the process of
the Military Commission's. Quote: "The process is very much akin to the process we, Australia,
abandoned after the World War II because it denied people the access to evidence, denied them the
ability to cross-examine those who made the the statements used against them and generally flies in
the face of all of the rules of fairness that we've developed over the last 50 or 60 years." He's
the head of Australia's military bar, a QC and senior member of the armed forces, although here
speaking personally. That doesn't move you either?

ALEXANDER DOWNER: No, look what we've done here...I think I've explained to you first of all what
we think are the gravity of the charges against Hicks. Secondly, we've obviously worked very
closely with the Americans as this military commission process has evolved. After Mr Hicks was
formally charged, which from recollection was in about June of last year, there was a hearing in
August of last year. We had officials from both my department and the Attorney-General's Department
attend that hearing and we as a result of that, or the officials as a result of that, made some
recommendations for modification of the Military Commission process and for clarification and as a
result of that some modifications were made that we were satisfied with. So I think in terms of the
broader issues of the fairness of the military commission, it has to be said that not just the
Government, but our officials are happy with the process, bearing in mind -

KERRY O'BRIEN: Well, the Australian Law Council, which as you know, sent Lex Lasry QC also to

ALEXANDER DOWNER: ..Yeah, I know this.

KERRY O'BRIEN: ..those first hearings at Guantanamo and still to this day the Law Council and Lex
Lasry himself are convinced that David Hicks can't get a fair trial under that process. That's
Australia's peak law body, and in fact Lex Lasry says since that time, today now, David Hicks has
even less chance of a fair trial than he had when your, the government's observers were over there
looking for some modifications.

ALEXANDER DOWNER: We're, not surprisingly, we don't agree with - I mean, this is a free society.
People are entitled to their own..

KERRY O'BRIEN: This is the Law Council. This is Australia's peak law body.

ALEXANDER DOWNER: People are entitled to their analysis. Let me make this point to you, that
recently in the case of Handon vs Rumsfeld in the US Court of Appeal, the whole military commission
process was brought into question. The US Court of Appeal, which obviously is a federal appeals
court, a civilian court, considered the military commission process and ruled that the Military
Commission process was appropriate in the circumstances of these people. That is, we're talking
here about people who've been detained as combatants, as unlawful combatants, and have been
involved with Al Qaeda.

KERRY O'BRIEN: Alexander Downer, thanks for talking with us.

ALEXANDER DOWNER: It's a pleasure.

KERRY O'BRIEN: I guess we all look forward to the date of a trial.