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Attorney-General is confident David Hicks will receive a fair trial from US military commission; Human Rights Watch is concerned about how the admission of guilt was obtained; expert believes Hicks received special training from Al-Qaeda.

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Wednesday 9 July 2003

Attorney-General is confident David Hicks will receive a fair trial from US military commission; Human Rights Watch is concerned about how the admissi on of guilt was obtained; expert believes Hicks received special training from Al-Qaeda


MARK COLVIN: The Attorney General Daryl Williams is flatly rejecting complaints that the Australian held in Guantanamo Bay, David Hicks, will be denied basic legal rig hts if he appears before a US military tribunal. Mr Hicks, captured by American forces in Afghanistan, is one of six non-Americans who could face such a tribunal. 


He'd have a defence lawyer appointed by the military, he wouldn't be able to speak to his lawyers without government monitoring, and he'd be tried by a panel of military officers, not a jury. But Mr Williams says Mr Hicks will have rights very similar to those in a US criminal court.  


David Hicks's father Terry is also angry at claims from the Prime Minister that his son has admitted to training with al-Qaeda. The New York Based Human Rights Watch says the Prime Minister was naive and improper to talk about an alleged admission of guilt obtained under such circumstances. 


But an al-Qaeda expert says he's been told that Hicks received special training in Afghanistan before he was captured. 


Rafael Epstein reports. 


RAFAEL EPSTEIN: American-born John Walker Lindh and Adelaide-born David Hicks were both captured in the 2001 conflict in Afghanistan. Both appear to have trained with Pakistani militants, but Walker Lindh went further, admitting to providing services to al-Qaeda. The Prime Minister John Howard says Hicks has made a similar admission, something Hicks' father denies. 


But Hicks faces a different legal process. Where Walker Lindh was tried within the US justice system, Hicks has been detained without charge, and he may soon face a military tribunal. There's no judge or jury, just a panel of military legal officers, and there's no appeal to an outside court. 


But Attorney General Daryl Williams maintains Hicks will receive similar legal rights to those within the US justice system. 


DARYL WILLIAMS: What we have done in our discussions with the US, is impressed upon them our very strong desire that the processes under which any Australian is tried reflect US criminal law processes, and… 


RAFAEL EPSTEIN: But they don't reflect US criminal law, because David Hicks' lawyer can't talk to him without government monitoring, and David Hicks' lawyers can't talk to potential witnesses or do research without telling the US Government what they're doing. That's clearly very different to the US criminal system.  


Are you comfortable with an Australian having that sort of trial? 


DARYL WILLIAMS: Well, I think it needs to be borne in mind that this is in a context which is not usual for criminal trials. We are satisfied that the process and procedure of a military commissioned trial will largely reflect, and as closely as possible reflect the criminal processes and procedures of the US. 


RAFAEL EPSTEIN: Are you saying that John Walker Lindh wasn't able to talk to his lawyers without being monitored by the Government, and that his lawyers weren't able to do any work in his defence without notifying the US Government - because David Hicks' lawyers have to operate under those restrictions? 


DARYL WILLIAMS: This is before a military commission, but I'm advised that there are similar provisions in US criminal law relating to the removal of lawyer-client privilege that are used in extreme circumstances, and extreme circumstances may well be where information is intelligence sourced, or there is believed to be a threat that action might be taken if people communicate information. 


RAFAEL EPSTEIN: But you're satisfied that US military law will give him a trial very similar to one he would receive under the normal US criminal court system? 


DARYL WILLIAMS: Well, he'll have a commission of between three and seven offices. He won't have a jury in the ordinary sense. 


RAFAEL EPSTEIN: Is that not a significant difference? 


DARYL WILLIAMS: Well, it is a difference. But, bear in mind we're in a military context, and the rules that are applying will still apply, a presumption of innocence, a requirement of proof beyond reasonable doubt, and all the other things that go with a criminal trial. 


RAFAEL EPSTEIN: Though the Prime Minister's claim that Hicks has admitted training with al-Qaeda has been denied by his father and his lawyers, Daryl Williams says such a claim rests comfortably with a presumption of innocence. 


DARYL WILLIAMS: The Government has been saying since at least early 2002 that it believes Mr Hicks has engaged in significant training with al-Qaeda. That's been said many times by this Government. 


RAFAEL EPSTEIN: But believing he's guilty is different to saying in public that he says he's guilty, isn't it? 


DARYL WILLIAMS: Well, if he has engaged in training with al-Qaeda, that will be a matter for evidence before the military commission. 


RAFAEL EPSTEIN: Is it correct for the Prime Minister of a country to say before the trial's been held, that David Hicks has already admitted his guilt? 


DARYL WILLIAMS: What the Prime Minister says is a matter for him to say, but Mr Hicks will be entitled to a presumption of innocence in respect of any charge that is brought against him. 


RAFAEL EPSTEIN: But the executive director of Human Rights Watch, Kenneth Roth, says with a lack of transparency in interrogations, Mr Howard's claim is improper.  


KENNETH ROTH: Given what we know about the interrogation techniques that the US Government has used, to simply to declare, as the Prime Minister has, that because a confession supposedly has been given to US interrogators, under these stress and duress circumstances, that that somehow constitutes evidence, is I think a very naïve and improper assessment of the way these interrogations have been conducted to date. 


RAFAEL EPSTEIN: Rohan Gunaratna is the author of Inside al-Qaeda , he's consulted with various governments, and he has in the past had access to classified information.  


He's recently upgraded his assessment of David Hicks, saying Hicks received special training in Afghanistan, beyond that given to the average al-Qaeda recruit. 


ROHAN GUNARATNA: But it is now established that Hicks did train in anal-Qaeda training camp, that he is more specialised and he has been trained to conduct more specialised operations.  


He has not only followed the basic training which usually is followed by any Muslim youth entering Afghanistan with the intention of going for combat, he has undergone more than one course of training inside Afghanistan. 


RAFAEL EPSTEIN: And is this information that you have been given by people within, say, the American Government or another government? 


ROHAN GUNARATNA: I think it would be incorrect for me to divulge my source of information. 


MARK COLVIN: Al-Qaeda expert Rohan Gunaratna talking to Rafael Epstein.