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Reactions to claims that military tribunal which will try Guantanamo Bay detainee, David Hicks, is fundamentally flawed.

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Wednesday 15 September 2004

Reactions to claims that military tribunal which will try Guantanamo Bay detainee, David Hicks, is fundamentally flawed


MARK COLVIN: "Nonsensic al, absurd, and fundamentally unfair" - the words in the findings, released today, of Australia's only independent legal observer at the military tribunal for David Hicks. 


The Melbourne barrister, Lex Lasry QC, travelled to Guantanamo Bay on Cuba for the first hearing last month. 


He says independence and impartiality appeared to be sadly lacking in the basic structure of the military commission. 


The Law Council of Australia has now asked the Federal Government to lobby for the removal of David Hicks from the military tribunal process.  


But the Attorney General, Philip Ruddock, insists the proceedings will be fair and he's rejected the request. 


Alison Caldwell reports. 


ALISON CALDWELL: It was Lex Lasry's first visit to Guantanamo Bay - a visit he'll never forget. 


LEX LASRY: The primary problem with it is the process, is the structure or the system under which this commission operates. The general lack of independence of this process from the US, the executive arm of the US Government is extremely disturbing. 


ALISON CALDWELL: Lex Lasry believes that at this point nothing can be done to make the military tribunals fair. He says the process is fundamentally flawed and that as such a fair trial of David Hicks is virtually impossible.  


LEX LASRY: Four, plus the alternate member, so five in total members of the commission don't have any legal training and presumably don't really understand how these rules should work.  


Several of them have what seem to me to be a professional and to some extent emotional connection either with the events of September the 11th or operation Enduring Freedom, which was the American military operation that occurred after September the 11th in Afghanistan. And that's undesirable. 


It's not good to have people who are making these judgments who were potential victims of groups like the Taliban. 


ALISON CALDWELL: The Federal Government has requested some amendments to the procedures. What more can it do? 


LEX LASRY: In very brief summary, my recommendation is that the Australian Government should request the American Government to either put David Hicks before a proper criminal justice system - either civilian or military - or bring him home. 


ALISON CALDWELL: For its part the Federal Government is refusing to make such a request. Attorney General, Philip Ruddock, says there's nothing new in the concerns. 


Mr Ruddock says the military commission will be fair. 


PHILIP RUDDOCK: I suspect the report could have been written without him in fact travelling to Guantanamo Bay. I don't think there is any evidence that it is unfair. What he's concerned about relate to the fact that there are different processes in place without recognising that there can be, in relation to dealing with intelligence issues, reasons for dealing with those matters differently to the way in which you would deal with them in a criminal prosecution in a civilian system. 


ALISON CALDWELL: The Opposition says David Hicks should have been brought back to Australia in the first place. Shadow Attorney General, Nicola Roxon.  


NICOLA ROXON: I think it's extraordinary that Mr Ruddock can so openly say that he has already been aware of all of these flaws in the military commission process, but he still is not prepared to take any action. 


ALISON CALDWELL: What would you do if Labor won the election? 


NICOLA ROXON: We would be arguing with the US, we would be strongly putting our view, that they need to use a proper process of criminal justice, and if they're not able or prepared to do that, well obviously we'd need to look at whether that can be done in Australia. 


ALISON CALDWELL: The Law Council of Australia has endorsed Lex Lasry's recommendations.  


Responding to the Federal Government's criticisms, he says it's missing the point. 


LEX LASRY: The fact that people have been saying it for a long time really reinforces it the Government ought to take notice of it. 


ALISON CALDWELL: Stephen Kenny is David Hick's Australian lawyer. He says the Federal Government can't afford to ignore the Lasry report. 


STEPHEN KENNY: For the Australian Government to now continue to support the military commission proceedings at all sends a message to all that the Australian Government is supporting a system that is unacceptable in international law. Mere amendments is simply insufficient. He's clearly spelt out that the whole system needs to be changed, that it cannot be amended by mere tinkering. 


ALISON CALDWELL: Those views are echoed by David Hick's military defence counsel, Major Michael Mori.  


MICHAEL MORI: The report in a very straightforward manner documents the flaws in the commission process that go to the basic fundamentals of a fair trial, that are lacking within the commission system. 


ALISON CALDWELL: Why should the Federal Government pay attention to this report, when some of the concerns that are in this report have been voiced before? 


MICHAEL MORI: Well, I think this report is good because it comes right from the Law Council of Australia, who is an independent body observing the process, digging into the rules, and doing a thorough job of evaluating the system. 


ALISON CALDWELL: The Law Council of Australia represents 40,000 lawyers. While it's a powerful voice, it's one the Federal Government is prepared to ignore. 


Attorney General Philip Ruddock. 


PHILIP RUDDOCK: It's important to have a system which is balanced and I don't accept that the system will produce a miscarriage of justice. 


ALISON CALDWELL: David Hicks has been charged with conspiracy, attempted murder, and aiding the enemy. His next preliminary hearing is in November. His trial begins in January next year. 


MARK COLVIN: Alison Caldwell.