From The Australian, February 16, 2007, by Jeremy Rabkin, a professor of constitutional law at Cornell University in New York state ....
David Hicks should not be returned to Australia for trial before a regular criminal court
....Hicks was captured in Afghanistan in 2001, fighting alongside Taliban forces. He has been held at the Guantanamo detention centre since 2002. After many delays, Hicks is scheduled for trial before a US military commission in the coming weeks. Critics in Australia say the trial won't be fair. Therefore, they urge, Hicks should be returned to Australia for trial before a regular criminal court.
The case presents a great many technical questions deserving the attention of legal specialists. But the idea that there is some monstrous injustice here is a fantasy of demagogues who always depict US policy in the worst possible light. To quote our mate Howard, that sort of talk must be pleasing to al-Qa'ida.
If Hicks had been treated as an ordinary prisoner of war under the Geneva Conventions, he would still be in a prisoner-of-war camp. Taliban insurgents are still fighting the new Government in Afghanistan, despite the efforts of Australian, British and US troops to suppress them. There's no novelty or injustice in continuing to hold PoWs while the war continues.
True, the US Government doesn't now acknowledge that the full protections of the Geneva Conventions apply in this setting. By its own express terms, the Geneva Conventions cover regular armed forces and other organised combatants who openly identify themselves as such, remain subject to military discipline and honour the laws of war in their own operation. No one seriously claims that these criteria apply to the Taliban guerillas.
Still, the International Red Cross has been allowed ready access to the Guantanamo detention camp, along with many other outside observers. Despite rumours and slogans, no patterns of serious abuse there have been documented. Compromises with full Geneva protections seem to involve rather special policy questions, such as the extent to which prisoners can be separated from each other to facilitate effective interrogations.
The trial now proposed for Hicks is not to determine whether he can be treated as a PoW but whether he should be separately punished as a war criminal. It's true the military commission won't be bound by all the safeguards observed in domestic criminal trials. That does not mean the trial by military commission is improper.
....The serious questions here are inevitably rather technical. Would it be improper, for example, to judge Hicks based on evidence that might not be allowed in a civilian court, because it came from a witness whose identity was not fully disclosed to the defendant, or it consisted of a witness describing what he had been told by an eyewitness rather than what he had seen himself? Security considerations and distance make it impractical to honour all the safeguards of normal trials. The question is which compromises may go too far.
A reasonable answer is that we ought to see how an actual trial works out under the proposed rules rather than harping on speculative objections based on hypothetical possibilities of abuse. The military commission is not meant to be a model for all times but an accommodation to special circumstances.
Before critics get too worked up, they might recall that the problems here are not unique to US military trials. Compromises with normal procedure have characterised international war crimes trials, too, starting with the Nuremberg and Tokyo tribunals in 1946, where, among other things, defendants were made to answer for some crimes only defined as such in retrospect. The International Criminal Tribunal for the former Yugoslavia has, on several occasions, protected witnesses by shielding their identities from defendants.
....Ordinary courts are not well designed to cope with the special challenge posed by terrorists and war criminals. Whatever else one wants to conclude about Hicks, he is not an ordinary felon.