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Military Order By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: Sec. 2. Definition and Policy. (a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. On December 9, 2001 David Hicks was detained by US forces in Afghanistan. He has since apparently been identified as "one of six foreign nationals singled out as eligible for trial as terrorists" in a tribunal that has been established under the Presidential Order. On July 4, 2003 the PM said that Hicks would be fairly treated - or, at least, that the PM had faith that he would be. On July 11, 2003 the PM said "We are satisfied, and I base this on the discussions that Daryl Williams has had, that the normal things like the presumption of innocence, the right to remain silent, beyond a reasonable doubt, that all of those things will apply and we are in the circumstances, on that basis, satisfied that the procedure will be fair and proper." (Radio 3AW) The PM hasn't used the term fair trial - probably deliberately - but Hicks is apparently going to be tried (in Cuba) - so that must be the 'fair and proper procedure' the PM is referring to. The PM has defined 'fairness' (in this context) to mean a procedure which affords Hicks a presumption of innocence, access to a lawyer, the criminal standard of proof (beyond a reasonable doubt) and something that the PM calls 'so forth'. ('so on' was not included in his list of conditions - although it may be added at a future time, or from time to time.) He calls these characteristics 'the normal things' (knowing that no judge in the history of the common law world has ever described those three conditions in such a way) - as if fundamental legal principles were putty in his hands. One shortcoming of the PM's definition is that it doesn't address many of the material aspects of a trial; e.g.. the type of forum (in this case secret); the rules that govern the admissibility of evidence and the weight that is given to that evidence once it is admitted (in this case - a tribunal that is not bound by the rules of evidence that apply in every other criminal trial); or the process of appeal (in this case - no judicial review outside the tribunal itself and a final appellate body composed of the President of the United States sitting alone). It seems fair to ask whether the procedure that the PM has described would be considered fair in America - if only because Hicks' accuser (or captor) is the President of the United States. It also seems reasonable to suggest that the PM might have paid some regard to the nature of the American legal system before he determined whether fairness would be accorded to David Hicks in the context of that system - and, if he had looked at all, he would have found a well known list of conditions that aptly describe the notion of a fair trial. If tried, David Hicks (who is already being detained without charge) will be denied all but the last of the rights that are granted to every US citizen by the Sixth Amendment to their Constitution - and even that one right (or condition) will be qualified by restricting his choice of legal counsel. Yet, according to the PM, he will be (is being?) treated fairly. The PM, being the PM that he is, probably isn't a big fan of the Sixth Amendment (or Section 1 - Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) - so he might have been thinking in terms of an Australian fair trial. As a trained Australian lawyer, the PM would know that there is no equivalent of the Sixth Amendment in any of our written constitutions. He should also be aware that our courts possess the power to halt criminal proceedings in order to prevent "injustice" to an accused - JAGO v. THE DISTRICT COURT OF NEW SOUTH WALES AND OTHERS (1989) 168 CLR 23 - and that the High Court has determined that the right to a fair trial is "a central pillar of our criminal justice system." DIETRICH v. THE QUEEN (1992) 177 CLR 292. But there has never been any occasion for the High Court to exhaustively list the attributes of a fair trial in this country - so none exists. So where did the PM find his list of 'normal things' that enabled him to describe the military tribunals as "a fair and proper procedure"? He knew that he wouldn't be able to point to anything in either the Australian or the American legal traditions to support the contention that Hicks is being treated fairly. Instead, he conjured something into existence that gave his audience the impression that he was making a considered assessment that Hicks would be treated with fairness and propriety (principally by using the words "normal", "fair" and "proper") - all the while ignoring (and encouraging his audience to ignore) the sum of learning on the subject of what constitutes a fair trial. The President's military tribunals bear a strong resemblance to the English Star Chamber which, unlike the Common Law courts of the time, "dealt with offences not in the places where they had been committed, but centrally, where the local influences which had impeded justice, overawing or corrupting juries, witnesses, parties, sheriffs, and even judges could not come into play. It dispensed with the jury. It evaded the Common Law rule against the use of torture. It collected information through its own subordinate officials, and by written depositions taken in privacy, and not through evidence given and tested in open court. It could place accused persons on oath, and lead them to incriminate themselves on their own admissions, and indeed without their being aware of the precise charges to be brought against them." The modern incarnation of the chamber again sees a head of state creating his own system of justice - this time in order to demonstrate the progress that he is making in his war on terror, as well as to remind the world that the President of the United States now asserts that he possesses an unfettered global jurisdiction to detain, torture, try, convict and execute people. A jurisdiction that isn't governed by the norms of legal principle, his nation's Constitution, or any of the human rights covenants that emerged out of the bitter experience of the twentieth century. That was the procedure that the PM has in mind when he used the words "normal", "fair" and "proper". The PM has his rank, his fealty and his faith to protect him from arbitrary detention and so forth. The people he serves (who include David Hicks) only have a principle that he and his Attorney General have chosen to ignore in this case. Hicks has already been subjected to detention without charge since December 2001. If he is charged, he faces the prospect of a secret hearing to determine his guilt- and the additional prospect (if found guilty) of having to beg for his life. Anyone who suggests that Hicks is being treated fairly is propagating a lie - a false statement made with intent to deceive; an intentional untruth; a falsehood - and so forth - and so on.
More: Department of Defense Military Commission Order No. 1 The Village Voice - Military Justice Is to Justice as Military Music Is to Music (also see other links on page) Christian Science Monitor (March 02) - How evidence stacks up on military tribunals Findlaw: MILITARY TRIBUNALS -A Long And Mostly Honorable History Jurist - Law Professors Oppose Military Tribunals for Terrorists Alternet.org - How the Military Tribunals Will Really Work ABC.net 8.7.3 - Fairness in military trials unlikely: US lawyers association Herald
Sun 8.7.3 - "Accused Australian terrorist David Hicks may be
given an ultimatum by the US – plead guilty or face the death
penalty if convicted." (accused?) (terrorist?)
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