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Top lawyer takes aim at Hicks commission
The Australian Defence Force's top lawyer has added his voice to the chorus of concern about the US military commission set up to try terror suspect David Hicks.

But the federal government is standing firm amid mounting criticism over the integrity of Hicks' upcoming trial and says it will not protest against the military commission process.

Captain Paul Willee, a prominent Queen's Counsel, said the Hicks commission would be a charade if claims that the process was rigged to produce guilty verdicts were true.

The process would breach natural justice if that was the case, Capt Willee said, speaking as a private citizen and not in his role with the defence force.

In emails to their superiors, two former US prosecutors who had been involved with the military commissions described the process as flawed and rigged to produce guilty verdicts against mainly low level suspects.

The Pentagon says it has investigated claims made in the emails and found them to be "much ado about nothing".

Capt Willee said the Pentagon's assurances must be authenticated.

"If what's been said in the email that we have seen is true, then I would describe it as a charade," Capt Willie told ABC radio.

"It breaches every single precept of natural law and justice in the criminal context.

"There are those who in our community take the view that when the allegation is made by somebody in the lion's den, you don't get the head lion to deal with it."

Capt Willee said he had serious ethical concerns about the military commission process, which was akin to the system Australia abandoned after World War II.

"It denies people access to evidence, to the ability to cross-examine those who made the statements that might be used against them and generally flies in the face of all the rules of fairness that we have developed over the last 50 to 60 years," he said.

"I would like to see at very least the Hicks matter transferred to a civilian or a military court martial set up in accordance with the rules the Americans use to try their own alleged miscreants, rather than some specialised process which cuts across those military safeguards, or appears to do so."

Prime Minister John Howard acknowledged criticism surrounding the commission process but said he had no option but to allow the trial to go ahead because Hicks could not be tried in his home country.

"We have (had) legal advice from the Crown law authorities, time and time again, which effectively says that there was no criminal offence covering Mr Hicks behaviour at the time and if he comes back to Australia he will effectively escape any kind of trial," Mr Howard told reporters.

Mr Howard said he was satisfied the claims by the former US prosecutors had been investigated.

But Hicks' US military lawyer Major Michael Mori said that was not good enough.

"It is no longer appropriate for the Australian government to rely on US assurances as to the legality of the military commissions," Mori said in a statement.

"The Australian government has a responsibility to make an independent evaluation of whether the military commission system meets with international legal standards."

Maj Mori asked the Australian government to publicly point to improvements made to military commissions since the prosecutors' emails were written last year.

He accused the government of accepting second class justice for its citizen.

"It is hard to understand how the Australian government can condone the trial of an Australian before a military commission, when the US government will not trust the freedom of a US citizen to the same process," he said.

Hicks, 29, was captured alongside Taliban fighters in Afghanistan in late 2001.

He has pleaded not guilty to charges of attempted murder, aiding the enemy and conspiracy.

A date for his trial has not been set but it could be heard within weeks.

©AAP 2005

Click Here for David Hicks Case Information

Hicks Case Flawed: Prosecutors
2.8.2005. 09:51:04

Two former US prosecutors say the military commission process under which Australian David Hicks will be tried is flawed, with juries selected to ensure conviction.

In leaked emails obtained by Australia’s ABC network, prosecutor Major Robert Preston said some of the commission’s cases were "marginal".

"I consider the insistence on processing ahead with cases that would be marginal even if properly prepared to be a severe threat to the reputation of the military justice system and even fraud on the American people," his email said.

In another leaked email, a second prosecutor, Captain John Carr, also expressed misgivings to a superior.

"I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused," he wrote.

"Instead I find a half-hearted and disorganised effort … to prosecute fairly low-level accused in a process that appears to be rigged."

Captain Carr claimed allegations of abuse of detainees had been ignored, evidence had disappeared and prosecutors had offered advice to the appointing authority.

He also said he’d been told the juries deciding the cases would be stacked.

"You have repeatedly said to the office, the military panel will be hand-picked and will not acquit these detainees and we only needed to worry about building a record for the review panel," his email said.

Hicks's military lawyer Major Michael Mori said he was shocked.

"I would be very surprised if the Australian government was provided any of this information at the time they were negotiating and looking at the military commission system to see if it was appropriate or not," he told ABC radio.

But Brigadier General Thomas Hemingway, legal adviser to the military commissions, said the Pentagon had conducted its own investigation and found no legal or ethical problems.

He said the office of the Department of Defence Inspector General conducted a two-month long inquiry and concluded the allegations raised were the result of miscommunications and personality conflicts.

"We found no evidence of any criminal misconduct," he told ABC radio.

He also said there had been a constant exchange of information with the Australian embassy in Washington and rejected the claim juries would be hand-picked to ensure convictions.

Australian Attorney-General Philip Ruddock said US officials told him they had substantial evidence against Hicks, whose military trial will begin within weeks.

He is accused of fighting alongside the Taliban in Afghanistan.

SOURCE: World News

Two US Prosecutors Claim Guantanamo Trials Rigged
By VOA News - 01 August 2005
A detainee is escorted to interrogation by US military guards at Camp X-Ray at Guantanamo Bay US Naval Base

The New York Times newspaper and the Australian Broadcasting Corporation are reporting that two former prosecutors say U.S. military commissions set up to try detainees at Guantanamo Bay have been rigged against defendants.

Both news organizations said Monday they had obtained leaked e-mail messages written by the military prosecutors more than a year ago. In those emails, the prosecutors complained to their military superiors that the trial system was secretly set up to improve the chance of convictions, and were unfairly slanted against defendants.

The messages were sent to prosecutors' supervisors in March of last year, just three months before Australian inmate David Hicks was charged. Mr. Dicks was captured by U.S. forces while allegedly fighting with the Taleban in Afghanistan in 2001.

The Australian government says it will investigate the prosecutors claims.

Some information for this report provided by AP, Reuters.

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