THE Federal Government's refusal to bring David Hicks home could backfire with moves in the United States to reinstate the legal rights of Guantanamo Bay detainees likely to further delay his trial.

As Hicks enters his sixth year in prison without trial, Prime Minister John Howard is confronting an election-year revolt by his own back bench over the 31-year-old's treatment.

Despite assurances by Foreign Minister Alexander Downer that Hicks would be tried by a special military commission within weeks rather than months, the introduction of a new bill into the US Congress could delay hearings until next year.

A powerful group of US senators yesterday vowed to overturn President George Bush's abolition of habeas corpus for Guantanamo Bay inmates, which denies them the right to challenge the legality of their detention through the civil courts.

Rebel Queensland National senator Barnaby Joyce said he "didn't care if this is an issue for the federal election campaign". He intended to fight for "one of the fundamental legs on which a democracy stands".

Senator Joyce said it was embarrassing Australia had to rely on the US Congress to defend such a fundamental right.

"You can't have a judicial system without habeas corpus," Senator Joyce said. "The idea of making this an issue solely about David Hicks distracts from what we are really talking about, which is the primacy of a fair judicial system. It is an outrage."

Adelaide-born Hicks was imprisoned in the notorious Cuban detention centre after being captured by Northern Alliance fighters in Afghanistan in December 2001 and handed over to the US military in early 2002. He and other Guantanamo Bay detainees were stripped of the legal right to challenge their imprisonment when the Military Commissions Act of 2006 was signed into law by President Bush in October.

The bill allowed the President to circumvent a decision by the US Supreme Court that had found the original military commissions were illegal.

Leading Democrats and rebel Republican senators have confirmed they will move quickly to challenge the President's abolition of habeas corpus.

A spokesman for Democrat senator Patrick Leahy, who this week assumes the chair of the powerful Senate Judicial Committee, told The Sunday Age restoration of habeas corpus was a top priority and "something I feel very strongly about".

David Hicks' Australian lawyer David McLeod welcomed the move. "Habeas corpus is in Magna Carta and is the basis of the Westminister system," he said.

"The problem with removing it is that Hicks and the other detainees have been precluded from challenging the legality of the (military) commission and their detention until they are convicted. Instead of waiting until 2009 or 2010 to gain access to the civilian courts (after any conviction before the military commission), it could bring it forward to 2008, 2009," Mr McLeod said.

Despite the likelihood of further delays in his son's trial, the decision to pursue the restoration act was welcomed by Hicks' father, Terry. "I think it is great that someone in Congress is going to take this up," he said. "If it does hold up the commission, it will be interesting to see what stand the Australian Government takes, but I know they will just throw it back on David's defence, saying that is causing the delay.

"The President will go all-out to squash this, but at least it keeps the momentum going."

Hicks' American lawyer, Major Michael Mori, doubted the success of the challenge in Congress. "It could take months to get it done, and what if the President vetoes it?" Major Mori asked.

In addition to the abolition of habeas corpus, the commission guidelines released last week allow hearsay evidence and testimony obtained through "coercive interrogation" to be admitted in military commission hearings of non-Americans charged with terrorism.

Major Mori said there was nothing in the recent history of the US that could compare with the stripping of prisoners' rights or the make-up of the military commission.

"We have not done a commission for 60 years," he said.

"Court martials were designed to deal with battlefield and Cold War crimes. Why can't they deal with this? They have to bend the rules to guarantee convictions. David Hicks' life is being placed before an unfair system for (the sake of) politics in America."

Meanwhile, Mr Downer lashed out at critics of his remarks that David Hicks was in good health in Guantanamo Bay.

Mr Downer last week said that someone, whom he refused to identify, had seen Hicks and reported that he appeared not to be suffering mental distress. It later emerged that the person was a media officer from the US embassy in Canberra.

His statement was attacked by Major Mori. "He's being used as a monkey in a cage for people to come to stare at," he said.

Terry Hicks said it was a visit by people who were not qualified to make a judgement on his son's mental health. "They had a five-minute conversation where David was reluctant to pass on any information or really talk to them," he said. "So in five minutes they did a hell of a big assessment on him."

Mr Downer said it was preposterous that he should be attacked for talking about someone visiting David Hicks.

"That's all I said," Mr Downer said. "I made no claims for this person, and I never did. I don't particularly appreciate being abused and denigrated in the context of campaigns that people are running."

He said Hicks' lawyers were not helping his case by attacking the Australian Government and he avoided giving an opinion about the fairness of the new military commissions.

With MARK COULTAN

What is habeas corpus?
Habeas corpus is an ancient common-law writ, issued by a court or judge directing a person who holds another in custody to produce the body before the court. Its most important use is to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. Habeas corpus is recognised in the countries of the Anglo-American legal system.

LATEST NEWS

The Sunday Age believes that David Hicks should be brought home.

Five years in detention without trial is unjust. To join our campaign email to or write to David Hicks campaign, The Sunday Age, 250 Spencer St, Melbourne, 3000. Government scrambles to avoid Hicks delay fallout

Delay over Hicks trial unfair, says police chief

Kay Danes & Terry Hicks [father of David Hicks] rally in Adelaide to Bring David Hicks Home! AUSTRALIAN Federal Police Commissioner Mick Keelty has repeated his call for Guantanamo Bay detainee David Hicks to be tried as quickly as possible. Hicks, who has been in the US military jail in Cuba since January 2002 after being captured in Afghanistan, pleaded not guilty to charges of conspiracy, attempted murder and aiding the enemy. The charges were dropped after a US Supreme Court ruling last June declared the military tribunals set up to try Hicks and other Guantanamo Bay inmates were illegal. Mr Keelty told ABC radio yesterday that the matter should be resolved as quickly as possible. "I think justice ought to be swift if it is to be fair, and this has dragged on for some time," he said. Delaying a trial for so long meant that evidence did not remain fresh, Mr Keelty said. "People's memories fade and there is difficulty in presenting good evidence before a court. "So it works not in the favour of the accused, nor in the favour of the prosecution. So it is important for justice to be swift." On Thursday, Mr Keelty supported the Federal Government's calls for Hicks to be tried without further delay. The Bush Administration has insisted that Hicks will be among the first Guantanamo inmates to be tried under revamped US military commissions. AAP David Hicks Case Information

Australia has betrayed Hicks, says Fraser

Former prime minister Malcolm Fraser says he never thought he would see the time Australia departed from providing justice to all citizens like it has with David Hicks. Hicks has been detained by the US at its Guantanamo Bay, Cuba, detention centre since January 2002, a month after his capture among Taliban forces in Afghanistan. The 31-year-old Adelaide man has recently refused visits from Australian consular officials. Asked what he saw as different today to when he was in government 30 years ago, Mr Fraser said western democracies, including Australia, had "depart(ed) from the rule of law and due process and justice to all citizens as we have". Mr Fraser said Hicks in particular has been betrayed by the Australian government. "Nobody knows if David Hicks is guilty or innocent, although the prime minister has said he has not offended Australian law, which should give an indication the way (in which) he has been totally deserted by the Australian government," Mr Fraser told Southern Cross Broadcasting. Hicks pleaded not guilty in August 2004 to charges of attempted murder, conspiracy and aiding the enemy. But those charges were struck out by the US Supreme Court in June this year when the court ruled the military commissions were unlawful. The US government has rewritten the commission rules, and the Australian government has said Hicks is likely to be charged again early this year. "The way lies after lies after lies have been said about how he's going to be tried ... there is no respectable legal authority that I know of that has suggested those military tribunals are going to be anything more than a victor's tribunal," Mr Fraser said. "The British started to outlaw evidence taken by torture 500 years ago and now we accept it and we accept it in Hick's case." AAP David Hicks Case Information

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