David Hicks: A Living, Breathing Example Of Humane American Values

According to a most credible compilation of data - my general impression - here are this quarter's enduring hot news topics.

Climate change. Water scarcity. WorkChoices. David Hicks.

They're so hot that a report on even a relatively insignificant development in any one of these unfolding stories is likely to find itself leading a print, radio or television news bulletin.

Certainly, many believe the science that built the overloaded climate change bandwagon is faulty, that the current water scarcity issue is a cyclical matter which will rectify itself given time and the implementation of WorkChoices will be beneficial for the Australian economy.

Of course, the opposing side argues conversely and thus the debate rolls on. Climate change, water scarcity and the effects of WorkChoices are worth debating - and hence genuinely newsworthy items. The public has a strong interest in being made aware of the facts of these matters, so that the debate will continue and hopefully a satisfactory outcome can be achieved. Of course, this relies upon these developments being impartially reported - a necessary luxury we often do without - though that's a topic for another post.

The alert reader will have noticed David Hicks's omission from the above list. What? His plight cannot be overlooked, surely? Many contend that the public should be deeply concerned about the nature of the treatment dished out to Hicks, lest it befall them or their children. That David Hicks is the victim of a grave miscarriage of justice is beyond question for many, and if one accepts this, then certainly his predicament is entirely worthy of the overwhelming media coverage his case receives.

However, I spurn the assumption of David Hicks's victimhood, and thus his case's media notoriety. There are a number of mitigating circumstances that are not being considered when judging the treatment of Hicks. When they - along with Hicks's current status - are pondered, I contend that Hicks is being treated extremely well.

If Hicks was a civilian who had committed a crime in that capacity, then my voice would join those loudly decrying a travesty of justice whereby someone could be held without charge for several years by a foreign nation supposedly bound by the rule of law. However, Hicks was not a civilian. He was a soldier - an Australian-born soldier - fighting under the flag of the Taliban, who were in turn fighting a UN-sponsored coalition force which included Australia. Whether he was actively taking part in a battle when apprehended is irrelevant. He swelled the ranks of an enemy ranged against the forces of his birth country. He is at least a traitor by the conventional definition.

It is also most important to consider that, like all Taliban soldiers, he was not wearing a uniform when captured - he had no identifiable command. This is a very important distinction. If a nation or coalition of nations captures one of its citizens on the battlefield manning the ranks of its opponent and is without identifiable command, it marks that individual as a spy. Up until the recent Afghan campaign, standard operating procedure in these (very rare) circumstances has been that the accused appears before a summary court martial in situ, to face almost certain execution - usually by a military firing squad. Now Hicks was probably not a spy. But it is military convention to assume that fellow countrymen caught behind enemy lines in mufti have been spying for the enemy. Those who think Guantanamo is rough justice should consider how Hicks would have been treated if he were caught by the Allies in similar circumstances in Nazi Germany.

In this context, the Guantanamo Bay facility and the incarceration - as opposed to speedy execution - of David Hicks takes on an entirely new light. Of course, it is not ideal that one should wait five years or more for a trial. But Hicks is not facing an ordinary trial - on the contrary, he is a most unlikely legal pioneer. As mentioned, those of his kind captured in the past were executed in situ. However, the Americans have shunned this rather bloody (but hitherto universally practiced) convention in the case of Hicks, opting to develop an entirely new process to try such extraordinary cases. This is a distinctly tricky task. English common law, the bedrock of the Anglospheric legal systems, evolved over hundreds of years. Compare with the construction of this new justice system for people like Hicks - unsurprisingly still a 'work in progress' after five years. Furthermore, this process - and thus Hicks's pre-trial detention - has been greatly lengthened by (later overturned) judicial obstructions in US civilian courts, filed by those purporting to support Guantanamo inmates like Hicks. Considering these circumstances, is it surprising that it has taken so long for Hicks to come to trial?

Many will wonder why it's necessary to construct this whole new legal edifice to try people like Hicks. Why not subject him to the rigours of a civilian court? Simply, he does not qualify for access to civilian courts because he was not a civilian when he allegedly committed the crimes he's accused of. Hicks was caught on the battlefield as an enemy combatant. He should be tried by the standards of martial law. There is a clear legal distinction between civilian and martial law - a distinction as clear as that of civil and criminal standards of evidence. And this is as it should be; the 'fog of war' means that witnesses of crimes committed on the battlefield are frequently deceased or difficult to locate. When they are available to give evidence, their testimonies are extremely susceptible to cross-examination, because of the confusion of warfare. A civilian criminal court hearing a case like Hicks's would have next to no chance of establishing guilt 'beyond reasonable doubt' due to the extraordinary nature of an active battlefield. Yet crimes are committed in theatres of war - and they should be prosected as effectively as possible. Far greater emphasis must be placed on circumstantial evidence. For example, to be exonerated, Our David would need an extremely good answer to a question like 'Mr Hicks, why were you captured on the wrong side of the frontline, apparently guarding a Taliban tank?'

So, when comparing the treatment of David Hicks to the treatment of individuals caught in similar circumstances in previous wars, one arrives at the conclusion that his imprisonment is a shining example of humane behaviour on the part of the Americans. Those calling for an end to the formulation of military tribunals to try defendants like Hicks should be careful what they wish for. Looking forward, wars will be fought and traitors will be captured by their countrymen or their countrymen's allies. If this attempt by the Americans to try extraordinary defendants like Hicks using a formal military tribunal fails, the ad hoc variant will be reverted to. It's much less messy and such justice would easily pass unnoticed. Is this preferable?

I would argue that it is absolutely not. I value individual human life greatly. I even value the life of an immoral moron like Hicks, who was happy to ingratiate himself with men who think it godly to forbid female education and stone their "wayward" sisters, throw homosexuals off of tall buildings, dynamite the ancient relics of a "heretical" religion and ban music and sport. I'd rather Hicks in GITMO - awaiting what will likely be an imperfect and unprecedented trial - than his blindfolded, bullet-ridden body hidden in an unmarked grave somewhere in Afghanistan.

No! cry the his supporters. The other alternative is to simply let David go free - he has suffered enough. It's quite certain that our American allies would accede to such a request from the Australian government, however if he were to come back to Australia, it is well known that he cannot be charged with any offence. He would not face justice. Hicks's actions in Afghanistan were not illegal under Australian law when he committed them - although they would be if committed today. Consider the recollection of Hicks's activities in Afghanistan as told in this sympathetic 4 Corners piece. The Australian Federal Police interview records Hicks saying

We were under Taliban, basically.

No need to say anything else. It's a fact that, legally speaking, he's in the clear as far as Australian law of 2001 is concerned. Using the common-sense definition, however, he committed treason against the Australian people by his own admission. He was under the command of the Taliban, who were at war with the Australian nation, amongst others. Hicks is escaping Australian justice by getting off on a technicality that represents a fault in Australian law at the time, rather than a lack of wrongdoing on his part - as measured by anyone with a half capacity of sense. So why not let the Americans charge him if they're able to? Yes, I agree that Hicks is being subjected to overly lengthy detention whilst waiting to face the tribunal. Am I worried that someone in Hicks's rather unique position is inconvenienced in such a way? Not overly. There are far more important travesties of justice going on in the world, and the reason his detention is so problematic is precisely because he wasn't subjected to the summary court martial and execution usually meted out to those in his position.

And Hicks certainly does not deserve freedom for a good long spell. Far from being released back into Australian society, Hicks richly deserves just and lengthy punishment if he is found guilty of fighting for the Taliban. In light of the realisation that Hicks might not be a very good man who allied himself with a truly evil regime, some on the Left are starting to wake up to fact that he could well be a bastard. By his own admission, Dave's been a bad, bad boy. Sorry - man. He was 26 at the time of his capture, so the 'wilful naive youth' defence many are attempting to field on his behalf falls somewhat short. That aside, the aforementioned lefties, claim that defending bastards against a lack of due process is one of the least gratifying but most necessary tasks of anyone concerned for the cause of liberty. This is bunk because, as mentioned above, there is no established due process for this kind of case beyond summary court martial and execution in situ.

Not that this fact will matter a tinker's cuss to the supporters of Mr Hicks; but then facts have never stemmed the tide of psuedo-righteousness coming from a Leftist in full Voltairean preach-mode. "He's a bastard but he still has rights" is catching on, however it rings pretty hollow to my cynical ears. Notwithstanding the above-argued fact that his current status is most accurately described as "extralegal", I don't think the Left cares at all about Hicks's crimes against the Australian and Afghani people. I believe they love him because he's a most useful weapon to use against their bitterest political enemies. And the Australian Labor Party can't get enough of Hicks for the same reason - he's becoming increasingly handy as a political wedge. The man is the favoured cause célèbre of the left and the ALP.

Now, I could be completely wrong - perhaps the Left and others aren't using Hicks as a political marionette. Perhaps they are genuinely concerned about a fair process for him. The best way to discover what the Left and others really think of Hicks will be evident when he returns to these shores, and that may not be so far away if the issue continues to gain traction here. If many of those demanding "Justice for David" actually deeply disapprove of his decision to enlist in the military of a fascist, barbaric regime that was also fighting against his own countrymen, I'm assuming a huge 'Welcome Home David' crowd won't assemble at the airport to greet such an immoral individual. And he won't be invited as a guest-of-honour speaker at various Green-Left, anti-globalisation and anti-war rallies around the country, surely. And the book he'll co-write detailing his ordeal and martyrdom will not shoot to the top of the bestseller lists, right? And there'll be no place on the Greens senate ticket for David Hicks; 7th century cult-admirer, supporter of female stoning, Taliban-boosting David Hicks?

We shall see.