Hicks and Dreyfus

Photos: David Hicks, left. The degradation of Alfred Dreyfus, right.

In my last post I compared the Hicks' case with that of Alfred Dreyfus. In response Lexcen wrote:

"Jim, I fail to see the similarity between Dreyfus and Hicks. If you are referring to "injustice" then you might as well compare Hicks to Billy Budd. Personally, I would like Hicks to be judged under Sharia Law, since he chose to fight with the Taliban."

I know that Lexcen's views are shared by many Australians. I thought therefore that I should provide more information, then leave it to people to make up their own minds. Before doing so, let me make the implied linkage as I see it between the two cases quite explicit.

As I see it, Alfred Dreyfus was charged on flimsy evidence. He was then condemned through a very rushed and flawed military justice process distorted by fixed positions using evidence and processes that would not have been acceptable in any civil court. With people so dug in, it took many years for the injustice to be corrected.

Now people have to make up their own minds on this issue. But I thought that it might be helpful if I provided links to some of the evidence.

1. David Hicks was arrested in Afghanistan in December 2001.

2. The Australian Government has consistently stated that David Hicks has not broken any Australian law as it existed at the time. While some have argued that our law would in fact allow him to be tried in Australia, I have little choice as a non-lawyer but to accept the Government position. Since Hicks has not committed any Australian crime, then if he is to be tried it must be under US law.

3. The US announced charges against Hicks in June 2004. The statement of charge can be found here. These charges were described at the time in an Age editorial as weak. On a point of detail, The Washington Post noted that at the time that Hicks was alleged to have spied on the US and British embassies in the Afghan capital neither operated an embassy in the Afghan capital. A spokesman for the military tribunals was quoted as saying that the reference was to buildings once used as embassies and still occupied, when Hicks allegedly spied on them, by employees of the United States and Britain.

4. I struggled with the charges. No evidence has been adduced by anyone that Hicks was involved in actions that directly threatened life or involved military action against the allies. The charges all relate to association. Further, there is no direct linking in the charges to any US laws.

5. The military commission process then collapsed in the face of legal challenges and has only just been reinstated. New charges will need to be laid.

6. The Australian Government has consistently attacked David Hicks in a way that would be unacceptable had Hicks been on trial in Australia. In December 2006 the Law Council of Australia said in part:

The Federal Government’s approach towards Guantanamo Bay detainee David Hicks has been characterised by complacency, inaction and neglect.

Law Council President Tim Bugg said, “We would have preferred to release a chronology of what the Government has done to assist one of its citizens who is being held without charge. However, that would have been a very short chronology indeed.”

“Instead we are left with a trail of comments which show that the Government was eager to brand Hicks guilty from the moment of his arrest; complacent in accepting unsupported assurances from the US authorities about his treatment and trial; deceptive in claiming Hicks was the cause of extensive delays in the military commission process; and wrong in its defence of and support for every version of a clearly flawed trial process.”

In making its statement, the Council also released a detailed collection of remarks by Government ministers over the last five years. This can be downloaded from the above link.

7. In the latest development, Brigadier McDade, the woman appointed the nation's first director of military prosecutions to the new Australian Military Court has described the treatment of David Hicks as "abominable." The report continues:

Asked about the treatment of Mr Hicks, who has been held at Guantanamo Bay for more than five years and is not currently charged with any offences, she did not hesitate. "Abominable," she said. "Quite frankly, I think it's wrong. I don't care what he's done or alleged to have done. I think he's entitled to a trial and a fair one and he is entitled to be charged and dealt with as quickly as is possible. As is anybody."

8. Even Prime Minister, John Howard appears to be having doubts with his remark that "the acceptability of him being kept in custody diminishes by the day".

Now I accept that I may be wrong in all this, but it is hard to avoid the conclusion that David Hicks has been the victim of a travesty of justice.