Hicks' time in custody ignored by Pentagon

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This was published 18 years ago

Hicks' time in custody ignored by Pentagon

THE Australian Government has been caught by surprise by the Pentagon's insistence that if Guantanamo Bay detainee David Hicks is convicted by a US military commission the four years he has spent in custody will not be deducted from his sentence.

Hicks was captured with Taliban forces in Afghanistan in late 2001 and has been held at the US detention centre at Guantanamo Bay, Cuba, for most of the time since then.

He has pleaded not guilty before a military commission to charges of conspiracy, attempted murder and aiding the enemy. His trial is due to resume on November 18.

Yesterday the Pentagon's senior legal adviser on the commissions, Brigadier-General Thomas Hemingway, said that if Hicks were convicted the four years he has already spent in detention would not be taken into account when sentenced.

Foreign Minister Alexander Downer said that if Hicks were convicted the time he had already served should be taken into account.

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"That would be the normal practice," Mr Downer said. "I'm not aware that the Americans want to have it otherwise but if they do then we will make representations to them to urge them to take into account the period Mr Hicks has already spent in prison.

"If he's convicted he will be convicted of extremely serious offences and it is worth remembering that."

Melbourne barrister Lex Lasry, who has examined the Hicks case closely for the Law Council of Australia, said that would be outrageous.

Mr Lasry warned a year ago that could happen and he said last night that the US system was clearly unjust. "It means that if he were sentenced to 20 years, he would serve 24."

In a video media conference from Washington, General Hemingway said people were captured and held during a conflict to keep them from the battlefield and that time did not count when they were sentenced.

"Much as you had in World War II when you tried people for war crimes, you certainly didn't turn around and say the time that you spent as a prisoner of war is going to count on the running of your sentence," General Hemingway said. "That just wasn't the case and it is not the case here."

General Hemingway rejected criticisms of the US military commission system and said it had more safeguards than the tribunals dealing with war crimes in the former Yugoslavia and Rwanda.

"The people who are criticising these as kangaroo courts are significantly off the mark," he said.

General Hemingway said Hicks was not facing the most serious allegations he had seen.

"Nor is it the most serious case I could imagine," he said. "I think any war crimes charges are serious but you could find much more egregious allegations I am sure."

He said if Hicks were found not guilty he was sure the Australian Government would want him sent home immediately.

General Hemingway said the prosecution case against Hicks would take several weeks.

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