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Howard lets US military commission devalue our citizenship.

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Robert McClelland MP Federal Member for Barton Shadow Attorney-General Shadow Minister for Justice and Community Security

9 July 2003

Howard lets US military commission devalue our citizenship

The Howard Government is devaluing our citizenship with its support for the trial of David Hicks by a US military commission at Guantanamo Bay, Cuba.

The limited protections announced by the US Government cannot disguise how alien the practices of military commissions are to Australians’ expectations of a fair trial under our own criminal justice system. The processes are chalk and cheese.

Why has the Howard Government said it is satisfied with these practices when Great Britain, the other member of the “coalition of the willing”, is still expressing its strong reservations about the trial of its citizens by military commissions?

The Howard Government appears happy to overlook that:

Australian trials are conducted before independent judges and magistrates, while US military commissions are decided by US military officers.

Australian trials require a unanimous guilty verdict, while US military commissions require only a two-thirds majority - with unanimity only required to impose a sentence of death.

In Australia accused persons can be represented by the lawyer of their choice, with a safety net of legal aid, and communications with their lawyer are confidential. Before US military commissions, the accused must be represented by a US military lawyer, with the option of a security-cleared US civilian lawyer only if they can afford one, and confidentiality must be waived.

In Australia, miscarriages of justice can be rectified by an independent appeals court, while decisions of a US military commissions can only be reviewed by a panel of three US military officers, appointed by Secretary of Defence Donald Rumsfeld, which is not required to consider submissions from the accused.

In Australia, the continued imprisonment of a person is decided by the court, whereas there is no guarantee that David Hicks or Mamdouh Habib would be released even if acquitted by a US military commission.

These practices are alien to Australia’s criminal justice system and the Howard Government’s acquiescence in them devalues rights we associate with Australian citizenship. …



While Attorney-General Daryl Williams and Foreign Minister Alexander Downer refer constantly to their “discussions” with US authorities, it is impossible to see what these discussions have produced.

David Hicks and Mamdouh Habib have been in detention for more than 18 months, facing serious allegations of involvement with a terrorist organisation and a potential death sentence.

The two men have not been given consular assistance. They have not been given access to their lawyers. They have not been charged, nor is the Howard Government prepared to say what they might be charged with.

There is no evidence that the limited protections that would apply in any military commission, announced in an order by Donald Rumsfeld in March 2002, are due to the intervention of Mr Williams or Mr Downer.

Now the Prime Minister has seen fit to share with the Australian media admissions Mr Hicks has allegedly made, without telling either Mr Hicks’ family or his lawyers what these are. This couldn’t happen under the Australian criminal justice system - but it apparently can happen at Guantanamo Bay.

At the very least, with trials now a possibility, the Howard Government should be ensuring that Mr Hicks and Mr Habib have full access to consular assistance and their Australian lawyers, and should be pressing for their return if they will not be afforded a standard of justice that meets the expectations of the Australian community.

In fighting a war on terror we must show by our actions, and not just our military might, that we will defend all aspects of the Australian way.

For further information: Robert McClelland 0408 118 995 Jonathan Kirkwood 0425 231 690