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Guantanamo conviction- a David Hicks overturn precedent?

If being a Taliban shooting at enemies is not a crime, then why was David Hicks locked in a South Australian prison?  Whether he pled guilty or not, the only thing that David could be tried on has now been found by a Guantanamo Military Tribunal to not be a criminal act.

Osama bin Laden's former driver Salim Hamdan was cleared overnight of two counts of conspiring with al Qaeda to attack civilians, destroy property, commit murder in violation of the laws of war.  No Twin Towers, no USS Cole.  Without admissions extracted under torture in Afghanistan, it appears the prosecutors didn't have a leg to stand on

He was convicted of the failsafe charge (imagine if he walked away found guilty of nothing?) the same charge that Hicks plead guilty to, that of providing material support for terrorism.  Basically, by acting as Bin Laden's chauffeur, he helped Osama do what Osama did.  That, it seems, is about all they could pin on him.

Deputy Chief Defence Council Michael Berrigan says that "The travesty of this verdict now is that had the case gone to trial in 2004 he would have been acquitted of all the charges,"  There is, though, a greater travesty in the ramifications of this verdict.

It appears to me that the acts that Hamdan has been forund to be not guilty by a jury are the same as the ones that Hicks pled guilty to.  Have a look at the allegations of the "material support" laid against Hicks, as reported in the Australian on March 2, 2007:


The first specifiation reads Hicks did "intentionally provide material support or resources to an international terrorist organisation engaged in hostilities against the United States, namely al-Qa'ida, which the accused knew to be such an organisation that engaged, or engages, in terrorism, and, that the conduct of the accused took place in the context of and was associated with an armed conflict, namely al-Qa'ida, or its associated forces against the US or its coalition partners".

The second specification reads Hicks did "provide material support or resources to be used in preparation for, or in carrying out, an act of terrorism, that the accused knew or intended that the material support or resources were to be used for those purposes, that the conduct of the accused took place in the context of and was associated with an armed conflict, namely al-Qa'ida or its associated forces against the US or its coalition partners."


Hamdan was convicted on only five of the eight counts in the "material support" charge.  The BBC correspondent on ABC radio news overnight says that the Tribunal has ruled that for a member of the Taliban to shoot at an enemy soldier is not a war crime. 

Here's where it can get interesting for Hicks. Picked up in Afghanistan in 2001 by the Northern Alliance, what' s the most that he could possibly have done?  Shot at an enemy soldier.  If that's not a crime, then David has been jailed both in Guantanamo and South Australia for something that isn't regarded as criminal.  Given that "material support" is a crime introduced retrospectively by the U.S., should Hicks' innocence be as retrospective as the charge?

Having been found guilty by a jury, Hamdan faces one round of appeals at Guantanamo before he can take his case to the Federal Court.  If I was South Australian Attorney General Michael Atkinson, I would be following what happens at that point very closely.  Given the mood of the US judiciary chances must be pretty good that the convictions will be overturned.  At this point it must be likely that David can ask for, and receive, an overturning of his conviction.

American Civil Liberties Union National Security Project staff attorney Ben Wizner, who observed the most recent trial:, says that "In the strange world of Guantánamo justice, even if Hamdan had been acquitted on all charges, he would have been detained indefinitely. Nowhere else in the U.S. justice system can someone be held for life regardless of whether he is convicted or acquitted of a crime. Today's outcome represents nothing more than an illusion of justice." 

 It appears, then, that when Terry Hicks told us that his son was taking a chance to escape Guantanamo, he was spot-on.   Now a free man (apart from the South Australian Government requested control orders) David may receive what he could well consider the first taste of true justice he's encountered in seven years.

By then the Bush Administration, like the Howard Government, will be long gone.  I hope the last responsible leader remaining in power, SA Premier and Federal ALP President Mike Rann (ie the boss of the political party that runs the country) does the right thing when the time comes.   Apologising would be a good start.

Later this morning, when sentence is passed on Hamdan, the first U.S. Military Tribunal convict since the Second World War, the process of annulling the horrors of Guantanamo will finally have truly begun.


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Bulgaria and Afghanistan

Jenny Hume: "Did you ever get any reply from the Bulgarian Embassy to that very good letter you wrote about the treament of those orphans in Bulgaria?"

No, not a word. But there was so much international attention on the issue by that stage. Still, every bit helps.

Just about the Taliban guys in the dog pens. Presumably, the Australian Federation of Islamic Councils knew about that through contacts in Afghanistan.

Also, this just in:

Nine Australian soldiers have been injured - one critically and five seriously - in Afghanistan.

The Defence Force said early reports indicated one soldier suffered a life-threatening injury during a battle with Taliban fighters overnight.

The incident occurred in the Oruzgan province, where most of Australia's 1000 troops are based.

Cruelty to animals

"Pakistan has opened an investigation into the killings of five women who tried to choose their own husbands, after a provincial lawmaker defended their deaths as a "centuries-old tradition".'

The women, three of whom were teenagers, were shot, thrown into a ditch and buried alive more than a month ago in what authorities have said they suspect were "honour killings".

Incredibly, the people who did this took photographs.

At least they didn't shoot a moose, though. Or put them in dog pens.

The Bulgarian Embassy?

Eliot, I have just written about this issue urging people to write letters on another thread.

Did you ever get any reply from the Bulgarian Embassy to that very good letter you wrote about the treament of those orphans in Bulgaria? I know Ambassador Todorov was about to return home, so it was probably not on his priority list at the time. Just interested to know.

I learned later that the program had had effect in getting help to those children and I hope it has continued.  Such unimaginable conditions in that place.

Terrorist Kevin Rudd still using torture in Afhganistan

The Defence Minister, Joel Fitzgibbon, is playing down reports that Kevin Rudd's war on terror in Afghanistan uses the wilfull torture of Taliban detainees by locking them in dog cages.

The Special Forces troops used dog pens to detain suspected Taliban militants in a military operation hard on the heels of the death of SAS Corporal Jason Marks four months ago.

Ikebal Patel, President of the Australian Federation of Islamic Councils, says:

I'm actually quite shocked and effectively to be honest, I'm appalled that now the Australian soldiers have been in any way implicated with such disgusting treatment of human beings. I mean we've heard about the Americans doing similar things of late in Iraq and one never expected that a great country such as Australia would go to such levels to try and get beside any actions with any prisoners of war.

There'll be massive protests, won't there?

Won't there?

Geoff, you have not read the book

Read the book then get back to us.

It is a book about the massacre of 3 million German civilians by the so-called allies after the war - the same allies who then invented laws to try Nazis for doing the same thing during the war!

It reminds me of Gitmo and the making of retrospective laws that I find repugnant but does not say I condemn the Nuremberg trials.

I do not have to agree with every conclusion made by MacDonogh. For example he thinks there was sort of a happy ending.

I don't see any happy ending for the Palestinians who are still being tortured 60 years after the Zionist movement stole their land, I don't see any happy ending the for the millions of German women and children and old people who were slaughtered, raped, starved to death and destroyed by the so-called liberators.

What did the civilians do? To this day I don't hear German civilian families carry on about their people who were treated so dreadfully, civilians who were as much mistreated by Hitler as anyone else.

I don't hear the families of the Polish catholics, the Romania Gypsies, the families of the homosexuals, the disabled and the millions of others demanding their own state and continued compensation more than 60 years later do you?

Only one religious/political group continues to do that and continues to torment people who had nothing to do with anything.

It is an abomination that the world watched while the Nazis committed the worst atrocity in human history against innocent human beings and it is an equal abomination that the world sits by while the jewish people in Israel do the same without the death camps, to the Palestinians.

If you don't get that - read After the Reich, then read The Ethnic Cleansing of Palestine by Ilan Pappe. You will find the two books run a parallel and repulsive narrative of murder and displacement of one group of people by another.

My rage is with the allies. The US, the Brits, the Russians, the Czechs, the French and all the others whose actions caused death and destruction on a monstrous level while they then pretended to bring Nazis to trial.

Here is some food for thought for you, Geoff.

In 1938 the west decided to turn away Jewish refugees, Australia because of the white Australia policy.

In 1945 and the years following about 700 Nazis were invited to live here because they fit the picture of the white Australia policy.

So do not dare claim I am anything that I am not - you read the  books and then get back to us all about the morality and decency of a liberation that caused the murder of 3 million civilians and the displacement of 16 million others in the name of revenge.

They are war crimes, crimes against humanity and crimes against the peace, mate, and always will be and I will not cop the pious nonsense spouted by the west.

Now back to Gitmo. The US has locked up just over 700 people, there are only 2 "convictions" with minor sentences handed down and hundreds of people tortured for years before being released without charge.

In the meantime reports show that the US is still slaughtering Afghans and Iraqis at weddings and in air strikes yet no Afghans or Iraqis had a single thing to do with the attack on the WTC.

Retrospective laws are written to punish these few people in Gitmo while reports claim that over 1.2 million Iraqis are dead, those US soldiers and mercenaries who rape and murder civilians are not being charged with war crimes, yet John Walker Lindh rots in prison for doing not much at all except nearly being killed by the CIA.

Hypocrites deserve to be condemned.

So read the books and understand my anger and sense of betrayal.

Thank you

Geoff Pahoff, for your courtesy in forwarding your email exchange with Giles MacDonogh to the editors.

Interested Webdiarists may like to visit Mr MacDonogh's website, which I first visited late last year. I must get hold of After the Reich - I doubt if the Spectator's review last July, which brought the book to my attention, did it justice.

What a gross misrepresentation Geoff

I didn't claim that the jews made up the laws, it was the US if you had bothered to read Giles book like I did. I did not claim that the Germans were bombing civilians, this book is about after the war when the the allies had rounded up the Germans.

What a stupid misrepresentation from someone who has not bothered to read the bloody book.

I have said over and over again that the US and allies didn't give a toss about the jews so any claims that they rescued them from the nazis are absurd and the Nuremberg war crimes tribunals were still a hoax.

If only the read criminals had been charged with their crimes in a proper court and really decent laws of genocide and war had come out of them instead of the mickey mouse laws we have now.

Geoff, do not ever misrepresent what I have written to anyone ever again - it is unconscionable and unforgivable.

The jews involved were those in the zionist movement in England and the US urging instant death. Not the poor devils who had managed to survive the camps, the US kept them locked up and fed them 850 calories a day.

Those people who survived the death camps, be they catholic, disabled, criminals, jewish, or anyone else are my heroes and always have been.

So if you want to try and smear me, have a real conversation or read MacDonogh's excellent and terrifying book.

No misrepresentation

I copied and pasted your words and emailed them to Giles MacDonogh with my question as shown here. I then pasted and posted his reply in full.

You have been exposed for what you are.

Reply from Mr Giles Macdonogh

Dear Mr Pahoff,

I have had e.mails from this woman.

I have said nothing of the sort! My point about Nuremberg is that the defence of 'nulle pene sine lege' is right - legally speaking - they were not committing crimes on the German statute book, on the other hand I have not said that they did not deserve punishment, just that the Allies were occasionally hypocritical and had committed the same crimes themselves. The Germans were not charged with killing the Jews, and the main British case was the killing of 50 airmen who escaped from Stalag Luft. 

The Germans were not charged with bombing civilians. The Allies were rather better at that. The Russians thought they had missed a trick.

As for the charges being drafted to please the Jews, that is quite wrong - the Jews were given precious little credence at the time, and although the concentration camps provided useful fodder for punishing the Germans, the only prominent role played by the Jews at the time was as interpreters and Nazi hunters: in many cases they could speak German. Unfortunately some Jews were a little too excited during the interrogations of SS men and beat them up.

Such things are understandable but not excusable.

Hope this helps. GM

Giles Macdonogh

 I have just emailed this to Giles Macdonogh:

Dear Mr Macdonogh,

I am a commenter on an Australian blog, Webdiary, established by prominent journalist, Margo Kingston.


This morning another commenter made this observation about your book and its impact on her.

"Submitted by Marilyn Shepherd on August 22, 2008 - 3:54am."

"Reading Giles MacDonogh's "After the Reich" convinced me that the Nuremberg trials were an utter farce because at the time of the "crimes" they were not crimes.  They were made up after the events to satisfy the jews who led the charge."

May I ask do you have any comment about this and in particular is this a response to your book that you welcome or even anticipated?

If you do wish to comment please feel free to reply to me, and in the absence of a direction otherwise, I will post it on the site. Alternatively of course you can post it direct to the site.

Thank you for your attention.


Geoff Pahoff

Fiona: Geoff, I for one will be most interested in his response.

M. Shepherd is correct

Strictly speaking, the crimes which the Nazi elite were charged with were not crimes at the time.

"Crimes against peace," "crimes against humanity." etc, were enacted specifically for the Nuremberg Trials.

One criticism of these trials is that the Allies acted as prosecutor, judge and executioner at the same time, and, indeed, provided the accused with defence counsel.

These trials were the first mention of an official status of "war criminal". Whether you believe they were justified or were "victor's laws" is personal but I happen to believe they were correct.

Sadly, they no longer seem to apply except when the war criminal is on the losing side - as in Slobodan Milosevic. After 60 years, the Nuremberg precedent is largely redundant.

Holocaust not a crime

Marilyn Shepherd: "Reading Giles MacDonogh's After the Reich convinced me that the Nuremberg trials were an utter farce because at the time of the "crimes" they were not crimes. They were made up after the events to satisfy the Jews who led the charge."

Marilyn, hi! That's a fascinating observation and sets a new standard for you. Congratulations.

Are you arguing there that since killing Jews en masse wasn't illegal under Nazi Germany, and indeed was actively encouraged by the regime, that the retrospective application by the Nuremberg war crimes tribunals of penalties for crimes against humanity, specifically the Holocaust, had no legal basis?

Also, which Jews "led the charge" at Nuremberg? Could you perhaps quote from MacDonogh's book in support of your claim?

Looking forward to your response.


Reading Giles MacDonogh's After the Reich convinced me that the Nuremberg trials were an utter farce because at the time of the "crimes" they were not crimes. They were made up after the events to satisfy the Jews who led the charge.

Since 1945 the US has invaded some 60 places to change the regime or steal the resources of the place, usually on false pretences.

The School of the Americas at Fort Benning, Georgia is the largest terrorist training school in the world and has trained all of the terrorists involved in Guatemala, Panama, El Salvador, Nicaragua and all the other Latin American countries.

Let us not forget Allende, Vietnam, Cambodia, Korea, Iraq twice, Afghanistan, Grenada and all the others in my life time alone - I believe they have slaughtered about 17 million people since WW11, 3 million in Vietnam alone.


Marilyn Shepherd: "Reading Giles MacDonogh's "After the Reich" convinced me that the Nuremberg trials were an utter farce because at the time of the "crimes" they were not crimes.   They were made up after the events to satisfy the Jews who led the charge."

Congratulations, even for you this is a new low.

The following events take place between 12.24 and 12.43pm

Richard Tonkin: "So,chicken or egg?"

In the opening scenes of the second series (I think), a Korean double agent is tortured in Korea and admits to the plot, already well advanced, to detonate a nuclear weapon in Los Angeles.

This information is relayed to US Homeland Secuity and Jack Bauer sets about saving the day. As the clock is ticking...

More the zeitgeist than a plan to follow, but yes, I do recall seeing it and thinking it was probably indicative of certain mood.

I don't recall any of the critics who raved over the series back then ever making mention of the torture scene, do you?

McCallum on Lateline

I've never watched it, Eliot.

I'm just hearing US Ambassador McCallum saying that the US Military didn't use waterboarding at Guantanamo. Mind you, he didn't say that nobody else didn't.

I'll put the Lateline transcript up in the morning.

More McCallum on Lateline

I've been trying to work out if this was  the only response that wasn't a set piece of text McCallum delivered,  Naah, smoothly spun bullshit, just like the rest...


LEIGH SALES: Last night on this program we had an international lawyer named Philippe Sands who has recently appeared as an expert witness at the US Senate Judiciary Committee Investigation into whether Bush administration officials have authorised torture. He's followed the trail of various government memos, and he thinks that there is a case that war crimes prosecutions could be brought against members of the administration. How realistic do you consider that view?

ROBERT MCCALLUM: Consider that to be extraordinarily unrealistic because the President has been totally consistent in his position that torture would not be allowed. There are memos relating, legalistic memos relating to the definition of torture. Those legalistic memos don't define policy. They define legal obligations under treaties and so I don't view the President's articulated policy that prohibits torture to be in any way brought into question by that. And I do not see any realistic possibility of members of this administration having advocated a policy that relates in any way to a war crime.

 When you read the section regarding Australia but not the U.S. rativfying  the Optional Protocol of the UN Convention Against Torture, and I think the Ambassador's semantics imply that Guantanamo woiuldn't be compliant.  Must look it up.

Ratification, Gitmo V F

If this is the protocol in question, Richard, then there are a whole lot of countries that have not ratified it.

As well as Australia (which seems to be looking to ratify) and the US, other western countries including EU members Austria, Belgium, Cyprus, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal and Romania have not ratified. Other western countries such as Finland, Switzerland, Montenegro and Bosnia and Herzegovinia have also not yet ratified the optional protocol.

I think the Ambassador's semantics imply that Guantanamo woiuldn't be compliant.

One day someone on this site (if they haven't already) will take a look at counter-terrorist detention issues in other countries and write a piece on it. Hopefully that piece will draw parallels between the things that are criticised constantly about the US equivalent as well as drawing attention to the relative lack of international criticism levelled at these other countries. I'm not the one for the job - I'm quite happy with the French system under the circumstances, actually - but if anyone wanted to critique a good place to start would be at HRW where they state, among other things in relation to the regime round these parts:

In practice, French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial...

Central to this preemptive approach is the broadly defined offense of “criminal association in relation to a terrorist undertaking”...Established as a separate offense in 1996, it allows the authorities to intervene with the aim of preventing terrorism well before the commission of a crime. No specific terrorist act need be planned, much less executed, to give rise to the offense...

Once arrested, terrorism suspects may be held in police custody for four days, and in certain circumstances up to six days, before being brought before a judge...

Suspects are allowed to see a lawyer for the first time only after three days in custody (four days in some cases), and then only for 30 minutes. The lawyer does not have access to the case file, or information about the exact charges against his or her client...

Testimonies from people held in police custody on suspicion of involvement in terrorism suggest that sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure during police custody are common.

There are credible allegations of physical abuse of terrorism suspects in French police custody...

Once the suspect is brought before a judge, minimal evidence of relation to an alleged terrorist network is usually sufficient to remand a suspect into pretrial detention for months or in some cases years...

The use of evidence obtained from third countries where torture and ill-treatment are routine raises particular concerns, including about the nature of cooperation between intelligence services in France and those countries.

...courts appear to have allowed as evidence in some cases statements allegedly made under torture by third persons.

For all that Aussies hear about Gitmo (probably as a result of the Hicks and Habib matters) they shouldn't imagine that it is anything unique in the modern, liberal and democratic West.

For all that Aussies hear

For all that Aussies hear about Gitmo (probably as a result of the Hicks and Habib matters) they shouldn't imagine that it is anything unique in the modern, liberal and democratic West.

Without doubt Dylan, without doubt. It is the dichotomy of the US position: the great defender of rights and freedoms – particularly those freedoms that "we" enjoy in the western democracies – is just as at home denying anything remotely resembling those (and "justice") in this (Gitmo and the completely arsed-up "commissions"). No need to bring up rendition.

Interesting to note that in driving the great democratisation process in Iraq – and the concomitant implanting of "western freedoms" and "rule of law" – the US did not miss its chance to also occupy Gitmo in Iraq: Abu Grhaib.

I'm afraid, to me, Gitmo betrays the US I know. The administration that has bent, twisted and redrafted law to somehow enable the seriously flawed legal processes associated with it to proceed embarrasses a great country.

Father Park

Seek justice, but uphold principles

It's been a quiet week in Peoria. Unaccountably, there does not seem to be any mention of Stephanie Rice, though there is a story on Eamon Sullivan's world record.

A recent editorial was titled Seek justice, but uphold principles. It finishes this way:

In a curious coincidence of timing, the world's attention is focused on the Olympics in China this week. We'd expect this brand of justice practiced there. We understand it's a rather-safe-than-sorry approach, but Americans may very well be sorry it came to this -- someday, when they're less scared.

It's not that anyone is soft on terrorism. Quite the contrary, we want our government to be hard on terrorists. But we also want our leaders to be true to the ideals upon which this nation was founded. We believe America is capable of doing both without compromising national security.

the horrors of war

The Nuremberg War Trials, which set the standard for decades which have since been ditched, didn't even go this far.

Dozens of Hitler's associates who were in the bunker weren't charged with anything - chauffeurs, secretaries, adjutants, even Hitler's personal valet. Some did have the misfortune to be taken by the Russians for a few years in order to be pumped for information. In that respect, the Americans have acted no differently and completely trashed all concepts of "innocence".

"We decide if you are guilty or not" should have been that famous statement!

Hitler's driver

Your sentiment is far from uncommon across the web these past few days, Michael.  Also there's a sense of shock that the sentencing panel gave such a light sentence after taking time served into account - less than Hicks, according to Carol Rosenburg of the Miami Herald.

Who's next?

A beaut par from Andy Worthington:

The rest of the editorial was a considered hatchet job on the whole of the Commission process. Noting that Hamdan was “hardly a high value target,” the editors cited the comedian Stephen Colbert, noting that he “captured the absurdity of the proceedings perfectly on Thursday night when he called the trial ‘the most historic session of traffic court ever.’ It will not be long, Mr. Colbert added, ‘before we track down Ayman al-Zawahiri’s dermatologist.’”

A real killer

Juror Says Panel's Decision  Over Osama bin Laden's Driver  Was Based on Evidence
August 9, 2008 9:31 p.m.

The Guantanamo Bay military jury that sentenced Osama bin Laden's driver to just five additional months -- instead of the 30-year minimum sought by the government -- intended no message to the Bush administration or comment on its military commission system, according to one officer who served on the panel.

I love such denials

They usually reveal the prevalence of a sentiment.  In this case though, a statement that the outcome was politically unbiased can cut both ways.  Cheney's manipulation of the Hicks plea bargain would have been humiliating for others, no doubt, than Morris Davis.

If the jurors consider the outcome to be untainted, then its purity would increase its power.  Ergo more problems for Dubya and Dick.

I thought KSM was' going to be one of the early cases?  What's happened there?  Not enough admissable confessions that weren't tortured from him by the CIA before they dumped him (not long before Hicks' trial, and I still think that routine was intended to villify Hicks "by association")   in Guantanemo? 

If these guinea pigs are the warm-up act, then the show is not going according to plan.  It doesn't seem to be well-received by the audience, either, and November is not far away.

Yes Geoff

Mo Davis made it very clear not too long ago that David Hicks was Mr no-one and should not have been charged.

Hi Marilyn,
Not sure what's next. Certainly the legal pressure needs to be sustained
to insist that the Commissions are illegal, even though the jury
demonstrated some independence of spirit by refusing to deliver a
punitive sentence. The big issue for me is making the administration
hold to the verdict of its own system, and insisting that Hamdan be
released in December. After that, it must surely be untenable to hold
the 120 or so prisoners considered less dangerous than him.
Remember that Hamdan was not accused of combat of any kind. With Omar,
the issue of supreme importance - given that the administration doesn't
care that he was a child at the time - is for the defense to demonstrate
that the prosecution has been lying, and that there is no proof that
Omar threw the grenade that killed Sgt. Speer.
As for the Supreme Court, there is no case pending, but challenges to
the legality of the Commissions may eventually end up there - in 2010?
Hope this helps. May I post our exchange on my site:

Marilyn Shepherd wrote:
Andy now that Hamdan has shown that shooting on the battle field is
not a war crime what will happen to this young man Khadr?
They surely cannot continue the farce and when does the Supreme court
 ruling come down for the second time which should make the whole thing
 null and void anyway?

 Hi Marilyn,
 Thanks for the comments, and directing me to this.
 Would you mind if I posted your comments, and this link, on my site?
 All the best,

 Marilyn Shepherd wrote:

Convicted of driving a car

Andy's is a good site that I follow regularly.  AP, though, has the most succint summary of the situation I've run into so far:


The U.S. military officers who served as jurors in the first trial clearly weren't convinced that Osama bin Laden's chauffeur was as dangerous as the prosecution contended, acquitting Salim Hamdan of charges that he conspired with al-Qaida and convicting him mainly of driving a car.

His startlingly light sentence Thursday makes him eligible for release by the end of the year.

The next cases on tap go after other seemingly minor players. At most, they are accused of throwing grenades at U.S. soldiers in Afghanistan — not acts such as genocide or the slaughter of civilians that most people associate with war crimes.

Military prosecutors argue that even low-level Taliban and al-Qaida figures violated the rules of war by not wearing uniforms and not serving under any nation's flag.

They rejected trying the Guantanamo prisoners before normal military or civilian courts, instead designing a special tribunal that keeps classified evidence secret to protect intelligence sources and techniques, and can choose to allow statements obtained using sleep deprivation, exposure to extreme temperatures or other harsh methods.

Further down:

The next two defendants expected to have their day in court are Omar Khadr and Mohammed Jawad. Khadr, a Canadian who was 15 when he was captured, is charged with killing a U.S. soldier with a grenade. Jawad, an Afghan, allegedly wounded two soldiers with a grenade in a separate attack.

Given the new precedent, surely these will be laughed out of court?

Time served

Has anyone figured out why time served got counted in this time? Both official and unofficial reasons?

It blows away the fiction that is is detention, not punishment, so gives extra ammunition to the pending habeas petitions.

But maybe the heart isn't in it any more, what with the term just about over.  

Some of the documents are at http://www.defenselink.mil/news/commissionsHamdan.html 

Why time served?

I haven't been able to find any commentary on the change in attitude to counting time served, so I've decided to write my own.

The issue is that, from the the Bush administration's point of view, it is important to maintain that the GITMO inmates are under (lawful) executive detention, and not ordinary prisoners. Rather like our immigration detainees, those confined because of mental illness or a conventional POW. Certainly not like criminals.

If they were being held like criminals their detention would be governed by the courts, and the courts would require the executive to prove a case, and might order that they be released. In a court the evidence would be tested, and, for example, if obtained by torture would not be admissable - the case might even be referred for prosecution of the torturers.

From the beginning the US administration has been fighting against judicial oversight of the detentions, and a logical consequence is a denial that time served in executive detention can be counted in any sentence delivered by the judicial process. (Quasi-judicial, in the case of the military commissions.)

That's why Hicks didn't get credit for time served. Since he had to be out by Christmas, most of his sentence was suspended instead, with the added benefit of the remainder still waiting if he broke the plea bargain.

This is all rational and understandable, if not admirable. What is a puzzle is why the policy appears to have changed with Hamdan. The reports I've found don't make it very clear, but what appears to have happened is that the "jury", to aid in its deliberation over sentence, asked if time served would be included in the sentence. The presiding military judge apparently ruled that time served would be counted.

I haven't found any reports that either prosecution or defence put any argument on the question, or that any time was required for consideration. If this was the case, only one interpretation makes any sense to me: the ruling, as a matter of law, was so obvious and settled that the prosecution saw no use in objecting. Further, it didn't fatally compromise the Executive arguments or they would have fought however obvious the law.

What does "time served" mean? If it was the time in American custody, then it would have been fought, for the reasons I've outlined. If it was the time since he was charged, then Bush can live with that - Hamdan's status changed from detainee to prisoner on remand, even if he didn't change cells.

Hamdan was sentenced on 7 August 2008 to 66 months, with 61 months already served. Doing the maths, whatever started the clock ticking was at the beginning of July 2003. On 3 July 2003, the President Determines Enemy Combatants Subject to His Military Order. Among the six was Hamdan, and that is what changed his status. That determination tipped Hamdan into the military justice system, and means that Bush can live with "time served".

Hicks was also one of the six, so why didn't he get time served too? Probably because he was getting the suspended sentence. Bringing up time served would only complicate things, and might endanger the plea bargain. It's probable that the Executive preferred to keep their options open, and avoid setting a precedent. When the issue became real, with Hamdan, there was no defence.

"Guard this pile of rusty tin with your life Don't call us ... "

Marilyn: "Hicks was charged with guarding a tank at Kandahar airport that had been closed for 20 years during various years and the tank had not gone anywhere in all those years either."

In that case one thing is for sure.  AQ and the Taliban had a pretty clear handle on what they reckoned was the value of that bloke.

Should be interesting in December

And for the young Omar Khadr who supposedly threw a hand grenade at an American soldier while he had 5 bullets wounds in his 15 year old body and where we already know that the "evidence" was doctored after the fact.

If shooting at the "enemy" on the battlefield cannot be classified as a war crime Khadr will be found innocent after losing his entire young adult and late teens in Gitmo.

And in December if Hamdan is not released, or if the Supreme Court again rules that the commissions are illegal, I wonder what the US morons will do then.

Here in Australia, of course, innocent men, women and children have no right to habeas corpus if they are merely innocent and never likely to be charged with anything at all.


Were the Nuremburg trials held to punish Hitler's driver, pilot and valet? 

And the Allies even released Hitler's enablers when their sentences finished (eg Albert Speer).

How come a driver (with four years of education) is so important he needs to be detained AFTER his sentence is over?  Is it his knowledge of the USA torture methods?

Eliot, frolick off

David Hicks was not convicted of terrorism. Imperial fact. So frolick off.

What people think

Paul Walter says:

"Eliot, you are a terrorist."

Of course. And David Hicks is not. It goes without saying. In fact, he's a hero.

sauce for the gander

Eliot: "(re David Hicks )...In fact he's a hero".

Quite likely Eliot, given that his interest in these matters commenced after the butchery of Srebrenica; his concern for the underdog arguably coming to the surface at this time.

Is he Byronic? One supposes so. But being a romantic dreamer is not the same thing as being a criminal or "terrorist".

Am sure we agree on that score, eh Eliot? Better youthful incontinence, as Dante would say, than the cold blooded cynicism of older, more calculating people.

4 months, 22 days

Hamdan gets an effective sentence of 4 months and 22 days based on a charge considered by the US congressional lawyers to be a non-war crime that was invented six years after the fact and is done in an illegal tribunal.

What a sick joke. To quote Hamdan's lawyer, "It makes us look ridiculous".

Let that be a lesson for those who jump on the band wagon of demonising just because the "leaders" do.

Interestingly the OZ does not have a screaming banner headline about it.

So much for the "worst of the worst", Marylin

Do you reckon the light sentence might be intended to nullify the need to appeal? As in, in the same manner as Hicks, Hamdan would be out before the case could arrive at the proper US judicial system?

Eliot, you and I have debated the semantics of Hicks' situation quite enough to know that no agreement could possibly be reached. I think he was a soldier in the army of the rulers of a sovereign state (as recognised in that 2001CIA report I cited ages back ... the Islamic Free State of Afghanistan, remember?) while you think something much different. Parts of this judgement suggest that one of our opinions might be closer to the prevalent US legal sentiment than the other.

I have a feeling Cheney didn't get control of the outcome this time.

Not really a buyer, Alan

I'm more a greedy library book borrower. But as publishers have been offering Hicks multi-million dollar deals, which he cannot take if he wishes to keep the proceeds, they must think differently to you.

But yes – I'd be in the queue to borrow a copy and may even buy one, were it ever published.

Detainee 002 was a best seller

 Alan, I want to insist that you actually add something to just one debate because your bitchiness is tiresome and juvenile.

I know one thing for sure!

A Hicks autobiography would walk out the door while booksellers will need to be pulling customers in with a large hook on a stick to flog Costello's.

Three books

A Hicks autobiography would be bought by three people: Michael de Angelos, Richard Tonkin, Marilyn Shepherd. Not quite a best seller.


Imagine an Israeli soldier, but an Australian citizen, was found by Hamas driving a boot-load of weapons to a Fatah safehouse, or was found fighting alongside Fatah in Gaza.

You'd all so just jump at the chance to defend him, wouldn't you?


Spare us the hypothetical diversion

Is there a recent legal ruling on the status of such a person, Eliot?  Nice evocative smokescreen, I must admit.

The charges convicted and acquitted

We don't need to defend him, Eliot, he was found not guilty of the one you're revving up about.

[AP extract]

The five-man, one-woman jury convicted Hamdan on five counts of supporting terrorism, accepting the prosecution argument that Hamdan aided terrorism by becoming a member of al-Qaida in Afghanistan and serving as bin Laden's armed bodyguard and driver while knowing that the al-Qaida leader was plotting attacks against the U.S.

But he was found not guilty on three other counts alleging he knew that his work would be used for terrorism and that he provided surface-to-air missiles to al-Qaida.

He also was cleared of two charges of conspiracy alleging he was part of the al-Qaida effort to attack the United States — the most serious charges, according to deputy chief defense counsel Michael Berrigan.

Berrigan noted the conspiracy charges were the only ones Hamdan originally faced when his case prompted the Supreme Court to halt the tribunals. Prosecutors added the new charges after the Bush administration rewrote the rules.

Yeah, right. It was just lovely....

Richard Tonkin says:

"If Taliban shooting at enemies is considered ok by a Guantanamo Miltary Tribunal."

Material support for terrorism isn't considered okay, though, is it?

What a luvverly war

"One person's terrorist is anothers freedom fighter".

Eliot, you are a terrorist. You support the terrorism of the US and Israel and what you do (blogging) "materially supports terrorism".

You keep forgetting that, from the point of view of resisters, there is no "terrorism"!

You may as well say our troops in New Guinea in WW2 fighting the Japanese were "terrorists", on the basis of the sentiments of the Japanese we opposed.

Most Australians would have considers the diggers more as "resistance" than "terrorists", for example.

Geez, no wonder Shepherd et al get frustrated with certain people at this site....

"Lovely" isn't the point

The next legal argument to be considered by the U.S. Federal Court will be "what is terrorism, and what is legitimate warfare?"  The Tribunal ruling suggests that Hamdan's activities, when considered outside of Cheney's kangaroo court,  could fall into the latter category.

Eliot, what did the Taliban have to do with anything anyway?

The US did not declare war on the Taliban, not ever.

Just a small statement but what significance?

G'day Marilyn,

"Once upon a time" there was a "gentleman's agreement" - even in war. Arrogant powers actually picnicked and watched the slaughter.

The military power of certain nations dictated by declaration the direction of the lesser warlike countries.

In WW 1, various nations, one after the other, declared war on someone else.  And millions of service personnel - and for the first time in "declared war" - civilians were collateral damage (in America speak).

In WW 2, various nations, one after the other, declared war on someone else. And millions of service personnel and civilians died.

And for what purpose? Arrogance and a desire to continue their fantasy of being superior.

It seems to me, Marilyn, that WW 2 created the U.S. monster of the Military/Corporate.  Born on the excuse of defence of democracy, it has become the voracious exponent of premeditated invasion.

Niceness has gone in favour of the financial profit of war.

No more do the proponents of war lead the charge.

And - as the Howard regime blackened the history of Australia - we too are guilty of premeditaded aggression.

That is now our history and we should never forget our guilt for cravenly following the U.S. dictates.

Marilyn - could you please give a resume of the American wars, of any level, since 1900?

Guantanamo torture decisions based on watching "24" ?

This is the strangest one I've read for a while. To preface, a bit of the show's Wiki:

24 is presented in real time with each season depicting a 24-hour period in the life of Jack Bauer, who works with the U.S. government as it fights threats on U.S. soil. Bauer is often in the field for the fictional Los Angeles Counter Terrorist Unit (CTU) as they try to safeguard the nation from terrorist threats.

According to this, the first half of the show's first season went to air two months after 9/11 and was successful enough for FOX to order its continuation. That sound like a bit of a rush-job to me. Rendon again?

[Lateline extract]

[Phillippe Sands] I hadn't watched the TV series '24', it's beamed into Britain, one of my kids has seen it, but while I was interviewing Diane Beaver, who was the main lawyer down at Guantanamo, she mentioned to me, she said, "We were watching '24', I wrote in fact on my notes "Becker".

I get back to my hotel room, it doesn't ring any bells, I google search it and it says do you mean '24' Bauer, and I said yes and I then had a series of conversations with Diane Beaver, and she confirmed as she put it that '24' had many friends down at Guantanamo Bay.

And in fact the timing is quite remarkable. The second series of '24' was beamed into Guantanamo on the 29th of October 2002, at the very time they were deliberating on these new techniques and it created as I was told not just by Diane Beaver but by those who opposed these techniques, it's important to know that there were many people down at Guantanamo, many people in the administration, who were were deeply opposed, and in the military, to the techniques, but the program '24' created an environment which essentially said, "these techniques work, abuse works, torture produces reliable information", and that was the context in which I think these decisions were taken in 2002.

TONY JONES: It wasn't only at the lower ends of the scale either, it appears that Jack Bauer had huge fans in the US Supreme Court, and even Michael Chertoff , who's the head of Homeland Security is a Jack Bauer fan, and an avowed one.

PHILIPPE SANDS: No, absolutely, once I had uncovered the Jack Bauer '24' connection, I dug a little bit further and of course what you learn is that there are conventions all around the US on the program '24'.

And even one of the justices Clarence Thomas had attended rather publicly one of these conventions, Michael Chertoff spoke glowingly about the television series, Michael Chertoff, Secretary of Homeland Security, and so you can begin to get a sense, your viewers can get a sense of the sort of environment that is taking place which allows that type of decision making to occur

So,chicken or egg?

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