Webdiary - Founded and Inspired by Margo Kingston

Richard, have you seen this report on the "integrity" of the system at Gitmo?

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the legal treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials are rigged from the start. According to Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal. 

A stacked deck and the cards might be dealt to suit a political agenda - such as an election.

Colonel Davis's criticism of the commissions has been escalating since he resigned this past October, telling the Washington Post that he had been pressured by politically appointed senior defense officials to pursue cases deemed "sexy" and of "high-interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I concluded that full, fair and open trials were not possible under the current system," he wrote. "I felt that the system had become deeply politicized and that I could no longer do my job effectively."

Tune in to hear the Crawford Caligula claim that convictions were proof that his approach was protecting America. But is it?

Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions' bias--a revelation that speaks to fundamental flaws in the Bush Administration's conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else.

Others, in the past had better chances:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department. "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'" 

Mustn't risk a breach of copyright so I'll cease the extracts. But there is more. And doesn't say much for "truth, justice and ..."

I note the extracts from Hicks's dairies that were tabled in support of the strict control order on him. Those extracts clearly reveal that this was not just a case of an adventurous and stupid young man who somehow found himself caught up in something he had not bargained for.  Hicks clearly knew excatly what he was doing over there and the training he so willingly undertook can hardly be called benign. How to kill a VIP for instance. And a lot more more nasty stuff.

I would think on the face of it HIcks had little choice but to plead guilty as he did. That stuff sure takes some explaining.

Oh, I see. He has now given up his Islamic faith and that was all six years ago.  Well that may be so, or it may not be. But I would expect the authorities not to take any chances on this guy.  

Richard Tonkin: "Your shock astounds me, Eliot.  That people should express beliefs contrary to yours in pubic.. how dare they?"

Richard Tonkin: "I do have a suspicion regarding Smith though, but there's a couple of correlations I need to verify before I  go further."

David R: the supermarket food line has exactly as much connection to Dick Smith as Dick Smith Electronics has - ie none. The food line belongs to Sanitarium, the shops to Woolworths.

Oh, and I bet they're just delighted by this great new public relations opportunity.

What an interesting start to the working week for some eager little chippy in their marketing and media liaison unit, I bet.

What next?

Colonel Sanders pops up somewhere to tells us how "misunderstood" the Unabomber is? And what a lovely, if somewhat eccentric guy he is?

The real question here is is Dick Smith merely unbelievably stupid and gullible - or does he at some level share David's "decent Australian" viewpoints, as detailed in his letters home to Dad while representing Australia in Afghanistan?

And which "independence movements" are Dick and Hicks speaking of here? Al-Qaeda, Lashkar-e-Toiba or the Taliban?

Remember how David's supporters all kept on saying it wasn't David Hicks the Taliban grunt per se they so admired? But merely the principal of a 'fair go' they upheld?

Well, businessman Dick Smith, who largely funded the former Taliban mercenary's public relations campaign in Australia, now reckons David was just misunderstood all along, and is really a lovely, well-intentioned guy. And that he was just interested in helping the downtrodden get their independence.

He's even offering him a job.

"Convicted terrorism supporter David Hicks is a decent Australian who has never supported terrorism, adventurer and businessman Dick Smith says"

"I believe he is basically a decent Australian like his father, that we know well, and I don't believe he's ever been a supporter of terrorism.

"I asked him why he was in Afghanistan and it was quite different to what we've heard about ... (it was) all about trying to help independence movements.

"One of my views has changed completely and that is ... he shouldn't earn any money from this.

"But I've changed my view completely now because he's said he's never supported terrorism and most journalists I talk to and all lawyers say that the particular plea bargain is just terrible because he would have agreed to anything to get out of there (Guantanamo)."

So, what was that bit David said about "Western-Jewish domination"? And how "Western society is controlled by the Jews with music, TV, houses, cars [and] free sex"?

Maybe Dick's television ads for his supermarket food line could mention that, too.

David R: the supermarket food line has exactly as much connection to Dick Smith as Dick Smith Electronics has - ie none. The food line belongs to Sanitarium, the shops to Woolworths.

"David Hicks's father suggests that his son should accept money to tell his story and worry about the legal consequences later.

Terry Hicks confirmed that up to 30 TV networks and publishers, from Australia and overseas, have made offers worth more than a million dollars for his son to tell his story about being detained in Guantanamo Bay."

About "being detained in Guantanamo Bay", mind you. Not why he ended up there.

David Hicks has been presented with a runner-up award for Un-Australian of the Year.

I hear they have started work on his biography: An Unfortunate Lowlife.

Justin Obodie

Paul, a soldier of misfortune would be more appropriate, n'est pas?

It seems reasonable to suggest he certainly wasn't the Brinks robber. Though the misfortune bit should be reserved for his victims; if there were any.

 

"I guess you can call this dude a soldier of no fortune."

Paul, a soldier of misfortune would be more appropriate, n'est pas?

Mark Sergeant: "His pay, Eliot, is what would make him a mercenary ("significant private gain"). If you don't know that he was paid, and above ordinary wages, you're just blustering."

I guess you can call this dude a soldier of no fortune.

Now Christopher Pine is putting Hicks on the back burner and is demanding the new immigration minister reveal the reasons he dropped the objections to Dr Haneef's work visa.

Wonders will never cease – I hope we are going to get a judicial review into this case. Don't wimp out now Kevin.

Eliot old chap; you appear to be having difficulty in coming to terms with the nature of war. You see when you have a war people get killed, and in modern day war the majority are innocent people like kitchen hands and the like.

Of course sometimes innocent people such as 14 year old girls get raped, shot and torched; and of course her family has to be murdered to shut them up.

Now Eliot old chap, how about you link me to more atrocities by the bad guys and I will guarantee you that they will be always be measured by the good guys, remember the good guys are also into sexual stuff, perverted stuff that is well documented.

So who are the bad guys?

Those who torture then behead their victims?

or

Those who rape, torture, shoot then burn their victims?

So go ahead Eliot old boy and make the distinction, help me out here for I find it somewhat difficult to figure out which is the lesser of two evils.

Richard Tonkin: "Paul Morella, could you point me to this "arrest warrant"? I'd be keen to have a look."

Normally, you wouldn't speak of "arresting" a mercenary? Wouldn't you normally say that a mercenary was "captured" and "on sufficient identification, executed in the field"?

That was commonly the excuse used by apologists for the Iraqi "resistance" whenever it executed foreign kitchen hands, truck drivers, nurses, etc.

For example, these Nepalese kitchen hands ...

Mark Sergeant: "Eliot Ramsey, in your response to Richard Tonkin you quoted from the International Convention against... Mercenaries. Your quotation is highly misleading this time. The "among other things" that you omit are the two versions of motivation by the desire for private gain."

 Well, I have no idea how much the Taliban, al-Qaeda or Lashkar-e-Toiba paid David while he was in their service, Mark, but I rather doubt any outstanding wage entitlement claims he has with his former employers entitles him to otherwise flout his obligations under the Convention. 

Perhaps now WorkChoices has been rescinded, he could apply for a review? 

Did he perhaps mention his pay in the dozens of letters he sent home to Terry? In there somewhere between boasting about killing people, reviling Jews, committing treason, etc, etc? 

I agree, there was a lot to read. Perhaps I missed it? Would Terry know?

Just reiterating, a mercenary is a person who, amongst other things;

• is specially recruited locally or abroad in order to fight in an armed conflict;
  
• is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
  
• is not a member of the armed forces of a party to the conflict;
  
• has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces, etc, etc

David did all those things. As to questions of his motives, that would be entirely irrelevant.

And with respect to his pay, is that one of the "legal rights" supposedly denied David which his admirers and supporters keep insisting is their sole basis for portraying him as some sort of "victim"?

Richard Tonkin

Paul Morrella, I'm confused again. How can the UN enforce its laws on a government it doesn't recognise, especially while simultaneously recognising a government (of the same place) that doesn't exist? I would have thought that the UN would have needed to have recognised the Islamic State Of Afghanistan before they could tell them how to conduct themselves.

All very good questions and best directed toward the UN. Personally I would prefer the United States to withdraw from such an organization. That though is a whole different topic.

Richard Tonkin

Paul Morella, could you point me to this "arrest warrant"? I'd be keen to have a look.

The arrest warrant was effectively the UN resolution order to hand over Osama Bin Laden (unconditionally).

I've been skimming through some stuff on nations and states, and can see how hairy the issue can get. I've a question though, that perhaps you can help with. Does a State's existence rely on its recognition by other states?

The usual international convention is to rely on the UN.

For all intents and purposes, whether recognised or not, weren't the Taliban the controllers of Afghanistan's statehood?

They controlled illegally (in the view of the UN) certain areas.

Richard Tonkin

Paul Morrella, did you read that CNN link I posted?  The Taliban did indeed offer to turn over Osama- a couple of times, it seems.  Do you think the conditions they asked for, proof and cessation of attack, were so unfair?

Basically the UN had written up an arrest warrant. The Taliban had absolutely no right to ask for conclusive proof about Osama Bin Laden. The proof was now the role of a Court to decide.

 Mark Sergeant

My argument has been that since the Taliban were the de facto government, they qualified as a state party, whatever their legal status.

The Taliban was never the recognized government of Afghanistan. The Ambassador of the recognized government (non Taliban) agreed to a number of UN resolutions before and after 9/11.

Neither of these senior Bush officials even contemplate the argument that the Taliban be denied POW status on the grounds that the Northern Alliance was the legal government of Afghanistan. If those eminent legal minds had thought Paul Morrella's argument had legs they would have run with it. Their position was that either the Taliban were the government of Afghanistan, or there wasn't one.

The argument about POW status has nothing to do with my original point. In my mind Hicks and Co should've been afforded either POW status or criminal status. The rest of the post is not relevant to what I've put forward. The simple fact is the Taliban was never the UN recognized government of Afghanistan and as such cannot be treated as if they were.

 

Richard, the Court of Appeals for the District of Columbia heard the matter of three British former detainees on the anniversary of the arrival of the first detainees at Gitmo. Here is Scott Horton's account - Less Than Human.

A long way from the top of the hill. 

Mark Sergeant: "In particular, was Hicks in it for the money?"

Michael de Angelos: "If you think Hicks has confessed to certain acts then what about John Howard?"

Richard Tonkin: "Sorry, Eliot, where were we? That's right ... attempting to ascertain whether or not David Hicks' undertaking of training with the Taliban at the time when they were the rulers of Afghanistan can actually be considered a crime. "

He was a mercenary.  He was a member of several proscribed terrorist organisations (which he has admitted). And he brags of killing people.

See my link below at  January 8, 2008 - 4:18pm to the UN convention on mercenaries, including the the official UN definition:

It just won't go away, will it? No matter how hard his admirers and colleagues here in his support group twist and turn themselves to avoid looking at it.

Michael de Angelos: "While rhetoric continues about a minor figure in the whole sordid history since 9/11, a  man who told lies to go to war plays golf in retirement."

I wasn't aware Osama bin Laden played golf.

Most thinking people accept that the Iraq invasion was planned years ahead and that 9/11 was an excuse to put an invasion into action. If that was the case then Woomera, being the most important US communications centre, would have been on alert for a long time before action was taken.

We all know the drama that occurred when Gough Whitlam demanded to tour Woomera. It's said to be the beginning of the end for him.

I also remember working in Oman for four months a few years before the first Gulf War – a place I had no knowledge about but accepted a job because of the great wages and benefits offered. I had to go through all sorts of security checks – ASIO, FBI and MI5 – which I found puzzling if somewhat amusing, but it was only when in Oman I realised why.

The country is basically one giant sophisticated British military post and it was where all communications were run from during Gulf War 1 and the Iraq invasion.

The only places of entertainment in the capital Muscat were three international hotels where foreigners could drink alcohol and these were peopled every night with numerous army and air force types. It was simply common talk after a few drinks of a coming inevitable conflict although details were never given.

Yet when I left, a huge bundle of cash in my pocket, whenever I mention Oman to friends most had either not heard of the place, did not know where it was or had little knowledge of it. I was one of very people who worked there who didn't sign the ( UK) Official Secrets Act – an oversight because of my nationality otherwise I couldn't even say I'd been there.

If you think Hicks has confessed to certain acts then what about John Howard? As I say, I have the signed local member's report distributed by him in Bennelong to justify invasions of both Afghanistan and Iraq.

It's full of falsehoods stated as fact - like the ones he gave to Parliament. The case of Hicks is similar to Stalin's statement that "one death is a tragedy; a million is a statistic".

While rhetoric continues about a minor figure in the whole sordid history since 9/11, a  man who told lies to go to war plays golf in retirement.

I've seen the argument that Taliban do not get POW status because the Northern Alliance was the recognized government of Afghanistan before. My argument has been that since the Taliban were the de facto government, they qualified as a state party, whatever their legal status.

This time I researched a little further, and came across something in these two documents: Memo from White House Counsel Alberto Gonzales and Letter from U.S. Attorney General. Neither of these senior Bush officials even contemplate the argument that the Taliban be denied POW status on the grounds that the Northern Alliance was the legal government of Afghanistan. If those eminent legal minds had thought Paul Morrella's argument had legs they would have run with it. Their position was that either the Taliban were the government of Afghanistan, or there wasn't one.

The "failed state" argument is interesting. As Richard Tonkin's CNN link shows, Taliban ruled Afghanistan may have been unpleasant, but it wasn't a failed state. Its ministers visited Texas while Bush was Governor to negotiate a pipeline deal (no implication that Bush knew or cared). Afghanistan became a failed state when it was invaded.

Northern Alliance members, incidentally, "reportedly use torture routinely to extract information from and break the will of prisoners and political opponents; some of the victims are said to have been tortured to death", according to the Federation of American Scientists. The Wikipedia article says

Much criticism has been leveled against the United Islamic Front for alleged breaches of human rights, by both Afghan and international groups. The influence allied warlords have in their territories where they make their own, often draconian, laws is one factor. Human Rights Watch has released documents alleging internal displacement and executions, widespread rape, arbitrary arrests and "disappearances" targeted against the civilian population.

Richard Tonkin: "The issue is, as has been discussed here so often, Eliot, that the Taliban, feted as the Mujahideen when they helped boot the Russians out, had been the rulers of the country since the mid-nineties..."

So, what's the argument now? David Hicks was trying to uphold the principle of National Sovereignty? Like a UN peace keeper?

Michael de Angelos

For Christopher Pine ( who will surely fade into well deserved obscurity ) to say "put up or shut up" is rich considering that none of the participating countries in the invasion of Afghanistan have ever offered proof of why the country should have been invaded and torn asunder, and thousands of it's citizens killed (usually labelled "Taliban" ).

The reason probably offered was contravention of UN resolutions. The Taliban basically failed to hand over Osama Bin Laden. The nation could also not have been "invaded" for the reason the Taliban was never the recognized government. In a strict legal sense they (Taliban) could be judged no more highly than a large militant band of criminals. The legally recognized government was the Northern Alliance- the very same Northern Alliance that allowed international forces within its borders - fighting against the Taliban organization.

It is to be hoped, Richard, that the scales have fallen from enough American eyes to influence the candidates. Quite disillusioning to believe you are a city on the hill only to find out that you are thought of as more of a bunch of back alley thugs. From material I have seen (and posted) about the rhetoric of leading candidates - and the advisers they have chosen - there is still much to be concerned about. And a great deal of cleaning up to be done. Herculean, even. The corruption has become widespread and the election system is a major concern - which might be an inhibitor on progress in returning to the ideals Americans aspire to.

Michael de Angelos: "All this speculation on what Hicks may, or may not have done is irrelevant and an attempt to divert from the real story – the abuse of legal process."

Actually, it's not the things which Hicks "may, or may not have done" that are so interesting about him. It's the things he readily admits to doing.

These include killing people on behalf of a terrorist organisation, acting as a mercenary, engaging in a war of racist extermination and treason. Amongst others.

As for the legal process, yup, I agree with you. He should be re-tried. Though he'd probably plead double jeapordy, though there have been some interesting developments in that area, too, lately.

And if he feels he's been maligned in any way, he should sue through the courts.

I'm especially hopeful David's supporters gull him into suing the American and Australian Governments and media through the civil courts.

Have you heard of the "Discovery Phase" in Civil Law actions, by the way? And the penalties for obstructing discovery?

Richard, the chair of the US Joint Chiefs says Guantanamo Bay should be closed. The reason? This:

Asked why he thinks Guantanamo Bay, commonly dubbed Gitmo, should be closed, and the prisoners perhaps moved to U.S. soil, Mullen said, "More than anything else it's been the image — how Gitmo has become around the world, in terms of representing the United States."

Critics have charged that detainees have been mistreated in some cases and that the legal conditions of their detentions are not consistent with the rule of law.

Is the image his only concern?