I T SEEMS the US executive tried just a bit too hard to please the Australian Government.
The people in administration who oversee the Military Commission which ”tried” David Hicks came up with a deal over the head of the military prosecutors. The deal which slapped a one year gag on Hicks. It is almost self- evidently a deal spawned by the executive because it is contrary to more than 200 years of US jurisprudential tradition of free speech and contrary to Australian constitutional freedom of political communication.
The gag, if enforceable, would last until after the Australian election, so the Americans thought they were helping their ally. They thought wrongly. Obviously the Australian Government would like Hicks to talk to the media. An enforceable gag order would be a poor result. It would mean that anything Hicks said would be filtered through third parties like his legal team or his father.
Without a gag Hicks would be allowed to spout unfiltered. Anyone foolish enough to be taken in by extreme Islam and head off to the Afghanistan of the Taliban would be bound to make an idiot of himself in the face of media questioning. Small wonder Attorney-General Philip Ruddock concurred with the view that the ban would be unenforceable. The Government will be looking forward to Hicks condemning himself out of his own mouth by spouting the misogynist, religiously fanatical precepts of the Taliban regime. That would take attention from more serious questions the most
fundamental of which is that however heinous the alleged crime, the accused is entitled to a fair trial. Hicks did not have that. Justice comes about through process. It is not measured by results. In the criminal law this must be the case because almost invariably only the accused knows guilt. The rest of us have to surmise it through evidence. Solid justice systems require proof (using fair processes) beyond a reasonable doubt, but not beyond all doubt whatever. If we required proof beyond all doubt virtually nobody would be convicted and society would break down. It means that in a good system of justice occasionally, but rarely, the innocent will be convicted. Lindy Chamberlain is a good example. But in her trial, conviction, sentence, appeals and the serving of time in jail, Lindy Chamberlain got justice. Knowing what we know now, that may sound like a bizarre statement.
Several years into her life term the matinee jacket which Chamberlain swore baby Azaria was wearing was found near a dingo’s lair. Chamberlain was set free. But even if the matinee jacket had never been found and she remained in jail she still would have had justice. She was charged and promptly brought before a court, where she could apply for bail (which she got). During the time she spent in custody she had adequate access to lawyers and was not subjected to ill- treatment or torture. She was told the nature of the charge and the case against her. The charge was for an offence known at the time of the alleged commission of it. She or her legal representatives had the opportunity to test the prosecution’s witnesses and bring their own witnesses. She had a trial before an independent court judge and jury in this instance. The trial was conducted along well-established principles about procedure and the admissibility of evidence. She had a
right to appeal to an independent appellate court. It is precisely because our society cannot require proof beyond all doubt that we have to be confident that the process is fair and just. We have to be confident that if we or members of our families ever face the criminal justice system we will be treated fairly. David Hicks, by contrast, was taken half way around the world. He was put into harsh detention which was tantamount to torture. He was denied access to lawyers. He was held without charge for years. He was not brought before an independent court. When he was charged it was for offences not known at the time of commission largely concocted. The rules under which he would have been tried if he had not agreed to a deal to get himself out of Guantanamo would not have allowed him to know the case against him or test it according to established principles. There was no appeal to an independent court.
Any conviction or plea of guilty under these conditions would not satisfy the basic test of a civilised society under the rule of law: that people are not convicted and punished for criminal offences unless their guilt is established beyond a reasonable doubt under fair and well-established law and procedures. You can argue around the edges about whether some elements of the criminal justice system are too onerous on the prosecution or give defence counsel too great an opportunity to allow the guilty to escape. You can argue about whether juries are capable of dealing with complex criminal trials. But the point about being given fair opportunity to meet the case against you remains fundamental. Even if you thought the result was more likely right than wrong in the Hicks case and that he did train for violence you could never be confident such a system would get the right result in most cases, let alone the vast majority.
If Hicks had been tried by a fair process he might well have been convicted. But it is too late now. There will always be a major doubt that he pleaded guilty just to get out of Guantanamo like Winston Smith in 1984 and like dozens of people under fascist and communist regimes. We will lose the ”war on terror” if we fight it by using terror ourselves. Locking people up without charge in small cells for 23 hours a day and denying them reasonable access to family and lawyers, and threatening them with a death sentence handed down by military officers is a form of terror. It is not as terrorist as bombing and hijacking, but it is a form of terror. Any deal extracted under those conditions is not enforceable. When Hicks arrives in Australia he should be set free or charged anew and tried according to proper standards. Crispin Hull is a Canberra writer.