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Hicks trial set to be three-stage process -

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(generated from captions) Australia's Attorney-General Philip Ruddock has welcomed the decision, saying after nearly four years, it's time to move the case along. Lex Lasry QC witnessed the first Hicks hearings for the Law Council of Australia and produced two reports highly critical of the process. I spoke with him from Melbourne late today.

Lex Lasry, just so we understand

how the Hicks trial by US military

commission is now likely to

proceed, how do you expect

proceedings to unfold? Well, Kerry,

they will have to reconstitute the

tribunal under the amended rules.

They will have to deal with a

They will have to deal with a number of motions which have been filed on

behalf of David Hicks. Most of

which or many of which are

preliminary motions and then once

they've been dealt with, then the

trial itself can start. So I

presume it is a three-stage process.

And that three-stage process, is

there any sense of how long that

whole process might take? It

depending on how complex the

depending on how complex the debates on the motions become. I think the

first stage will be quite quick,

first stage will be quite quick, but there are a large number of mosts

there are a large number of mosts to be heard, many which go to the

be heard, many which go to the basic rules in the military commission.

They have to be ruled upon and then

the consequence of those rulings

needs to be worked out so far as

needs to be worked out so far as the trial itself is concerned, so it

could be complicated. And at the

same time there is still an appeal

to be dealt with, a separate appeal

to be dealt with by the Supreme

Court from another Guantanamo Bay

detainee challenging the validity

detainee challenging the validity of these military commissions. Is it

possible the Hicks trial would be

completed before that Supreme Court

appeal is heard? Yes, if the Hicks

appeal is heard? Yes, if the Hicks trial is rushed through, bearing in

mind the Pentagon control this

process, it's quite possible that

before they hand an appeal in the

Supreme Court is heard and

determined, the Hicks case will be

heard and determined. Even though

that Supreme Court appeal could go

back on the Hicks case itself?

Yes, the other case is about the

effect of the Geneva Convention of

people in the position of hand

people in the position of hand done and Hicks, but it is an important

case and it does have an effect on

the outcome of the Hicks case.

Is it fair to say that the civil

Is it fair to say that the civil court proceedings in the US

related to the detinees in

Guantanamo Bay have come down

Guantanamo Bay have come down more in favour of the Pentagon than they

have the detainees? There have

have the detainees? There have been three cases, two of which were

determined in favour of the

detinees, one against, at first

instance, and the one which has

instance, and the one which has gone to the appeals court has been found

in favour of the US Government, so

naes basically the number at the

moment. There are some outstanding

to be heard. The Australian

Government has endorsed the ent

Government has endorsed the ent gone decision to fwri on the daift Hicks

trial because they say after four

years it does need to be progressed.

Is that fair comment? Well, I mean,

the Australian Government are now

endorsing an expedited hearing for

endorsing an expedited hearing for a process which the Australian

Government ought to recognise is

flawed. It's a bit late now to be

saying daift Hicks has been in

custody for nearly four years when

part of the reason he is there is

because he wants to challenge the

flawed process. But of course, the

fact he has been there for four

years is an injustice itself and it

will have, I suspect, a significant

effect on the ability to defend

himself. Why? Because time passes.

I understand from some of the

things that have been said by

people close to him, that he is

losing a sense of reality, having

been locked up in four years.

Memories fade. It is well

recognised in criminal law that

recognised in criminal law that the capacity of time affects people to

get a fair trial. That is just one

factor. The Pentagon has recently

changed the nature of the military

commission so that they would be

conducted, they say, more like the

judge and jury trials in civil

courts. Does that improve the

process of which you've been so

critical to date in two separate

reports? No, to call this is a

judge and jury type situation is

absurd. It's ACOSS metric change,

in my opinion, and the basic

in my opinion, and the basic problem was the military commission remain.

Mr Hicks is not going to be tried

Mr Hicks is not going to be tried by anything like a jury. He will be

tried by a military commission

tried by a military commission whose functions on that commission have

been slightly altered by the most

recent amendments. So the fact

recent amendments. So the fact that the President of the commission

would now make all the

determinations that go to law and

that the actual voting on guilt or

innocence and sentencing would be

done by the panel members without

the presiding officer who is

effectively, they say, acting as a

judge - you're not impressed by

those changes? It is an

improvement, Kerry, in itself, but

it doesn't change the basic problem

in the process. The basic problem

in the process remains that this

whole process is controlled by the

Pentagon. It still lacks the

independence that I and plenty of

other people say it lacks antd it

lacks a number of other procedural

protections that Mr Hicks won't

protections that Mr Hicks won't have the benefit of during his trial.

What are the key impediments to a

faires concern the lack of

independence of the military

commission. It is basically a

machine or a creature of the US

Government executive, the lack of

proper rules about the way in

which evidence is to be presented.

We are still in a situation where

evidence which has been the

evidence which has been the subject of coercion, physical or mental,

of coercion, physical or mental, and is also one or two parts removed

hearsay might yet be given against

David Hicks. The rules permit that

kind of process. They still permit

the kind of process that in any

ordinary respectable, independent,

objective criminal court would

objective criminal court would never be permitted. But will there be a

capacity to test the veracity of

that evidence, will there be the

capacity to test the veracity of

witnesses in cross-examination?

Well, there may not be. We have

Well, there may not be. We have to wait and see. But the rules

wait and see. But the rules provide for that kind of evidence, second

for that kind of evidence, second or third-hand to be given and

third-hand to be given and obviously that generates an unfairness if

witnesses can't be cross-examined.

What of the argue mebt that these

commissions are modelled on the

Nuremberg war crimes trials after

the Second World War and

the Second World War and therefore are as valid as they were? Well,

Nuremberg was, as I understand it,

new fen

Nuremberg was, as I understand it, a new phenomena Nah in the way in

which war criminals were treated.

Internat criminal justice has come

Internat criminal justice has come a long way since 1945 and 1946 and I

and others would point to processes

in The Hague, the way in which

people like Slobodan Milosevic and

others have been dealt with, the ra

want Dan war crimes tribunal, the

international tribunal itself.

There are proper processes where

these cases can be dealt with where

the sorts of citisms that I and

others have been making can be

accommodated. These people are

getting a fair trial. David Hicks

has been in prison, as we've said,

for four years. If he is found

guilty of that sentence, will that

sentence take account of the four

years he has already been in

captivity? No, the rules say that

time served doesn't count towards

the sentence, which is obviously

contradictory to what occurs in

contradictory to what occurs in most criminal courts. Lex Lasry, thanks

for talking with us. Thanks, Kerry. When allied troops freed Simon Wiesenthal from a Nazi concentration camp 60 years ago, it would have been understandable if he had tried to put his painful past behind him. Instead, the former architect dedicated the rest of his long life to keeping the memory of the Holocaust alive, and bringing those responsible for the slaughter,

who had escaped retribution, to justice. The man whose name became synonymous with the post-war hunt for Nazi war criminals has died, aged 96. conscientious and contentious life Jonathan Harley reflects on a contains some confronting images. and, not surprisingly, his report