Continuing confusion about the laws applying to the wartime internment and subsequent separate criminal conviction of David Hicks

The entirely lawful internment of David Hicks as a captured belligerent under the Laws of Armed Conflict remains a completely separate matter to the legality or not of his later criminal trial and conviction by a US military commission.


Letter to The Canberra Times 

Monday, 22 October 2012
(published Thursday, 25 October 2012)

John Richardson (Letters, October 22) misquotes a recent United States Appeals Court decision on the military commission conviction of Salim Hamdan to claim that David Hicks was somehow “illegally incarcerated”.

But in an earlier and higher judicial ruling concerning the same detainee, the US Supreme Court reaffirmed long-standing international law about interning belligerents captured in a war.

Four facts about David Hicks, then and now, surely cannot be denied.

First, if any Australian did now what Hicks has admitted doing in 2001 they would be liable for criminal prosecution under the Security Legislation Amendment (Terrorism) Act, 2002.

Second, it was only because the Burchett loophole in our treachery laws was not closed until after Hicks served with the Taliban in Afghanistan that he could not be prosecuted in Australia.

Third, it was this loophole that also ended up prolonging his separate internment as a captured belligerent.

Fourth, at least until his undoubtedly controversial military commission conviction, Hicks had not been “held without trial” or otherwise detained illegally under US, Australian or international law for a single minute.

John also repeats the furphy that al Qa-eda and the Taliban were once US proxies.

Both organisations were not even founded until long after US support for the Afghan mujahidin during the 1979-89 Soviet occupation had ceased.

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