The Pentagon said that the USA had provided Australia with 'significant assurances, clarifications and modifications that benefited the military commission process' in the event that either of the Australian nationals is charged. The Australian Minister for Foreign Affairs and Attorney General said that their government had 'reached an understanding with the US concerning procedures which would apply to possible military commission trials of the two Australians detained at Guant�namo Bay, David Hicks and Mamdouh Habib.' Their news release stated that the USA had 'made significant commitments on key issues'.
Top of the list is that the USA has promised not to seek the death penalty against the Australian detainees 'given the circumstances' of their cases. The same commitment has been given to the UK government on its nationals. In his speech, Lord Steyn said: 'This gives a new dimension to the concept of 'most-favoured nation' treatment... How could it be morally defensible to discriminate in this way?'
It is not clear if the US government's promise is a genuine concession, or if it had never actually intended to seek death sentences against these particular prisoners. Whatever the concessions agreed by the USA, however, the military commissions remain fundamentally flawed. Inter-governmental discussions should be aimed, not at fixing the unfixable, but at ensuring that the commissions are abandoned before they begin, and that prompt and acceptable solutions to end the legal limbo of the Guant�namo detainees are found.
If the US was not intending to seek the death penalty, then the main concession would be zero, zip, nada. The government has frequently stated that the detainees are guilty. Te government has frequently stated that they cannot be prosecuted under Australian law. Why is that?
Section 24AA of the Crimes Act 1903 provides:
(2)Where a part of the Defence Force is on, or is proceeding to, service outside the Commonwealth and the Territories not forming part of the Commonwealth, a person shall not assist by any means whatever, with intent to assist, any persons:
(a) against whom that part of the Defence Force, or a force that includes that part of the Defence Force is or is likely to be opposed; and
(b) who are specified, or included in a class of persons specified, by proclamation to be persons in respect of whom, or a class of persons in respect of which, this subsection applies.
(3) A person who contravenes a provision of this section shall be guilty of an indictable offence, called treachery.
Treachery carries a penalty of imprisonment for life. Seems to me an excellent charge for Hicks and Habib to face. The government did not bother issuing the proclamation. Our inability to prosecute in Australia is a direct result of the government's own inaction.
The inquisitor-general's statement to parliament includes the tired government furphy that:
But Australians who breach the laws of foreign countries while overseas have no automatic right to be repatriated to Australia for trial. So long as their trial is fair and transparent, those who breach foreign laws while overseas are liable for their offences. The United States has assured the government that Mr�Habib and Mr�Hicks will receive no less favourable treatment before a military commission than other non-US detainees.
The issue, as Amnesty says, is 'international fair trial and detention standards', not some myth that the opponents of the Guant�namo commissions want special rights for Australians.
Lord Johan Steyn, third most senior judge of the UK's highest court, says:
It�s not quite torture but at close as you can get�.
�The purpose of holding the prisoners at Guant�namo Bay was and is to put them beyond the rule of law, beyond the protection of any courts and at the mercy of victors,� he said.
�The procedural rules do not prohibit the use of force to coerce the prisoners to confess.�
He said that the blanket order issued by President George Bush had deprived the detainees � suspected by the US of links with al Qaida or the Taliban � of �any rights whatsoever�.
�As a lawyer brought up to admire the ideals of American democracy and justice I would have to say that I regard this as a monstrous failure of justice,� he said.
�The question is whether the quality of justice envisaged for the prisoners at Guantanamo Bay complies with the minimum international standards for the conduct of fair trials. The answer can be given quite shortly. It is a resounding �no�.
Australia should uphold international standards for fair trials. Instead the government gives us spin in favour of abandoning those standards to cover its own inaction. That's is why the answer the repatriation argument, which no-one is making, instead of the international standards argument, which they cannot answer.
Why, lastly, does Australia, closest US ally and all that, need to go cap in hand to the US. Surely close allies handle these things differently? How would the US react if the ADF had arrested a US citizen in Afghanistan or Iraq, removed them to the Baxter detention centre, and announced an ADF militray tribunal would decide their fate?