Fair Trial for Hicks Impossible – Law Council Releases Report15 September 2004
The report of the only independent Australian legal expert to attend the initial hearing in the trial of Australian David Hicks has convinced the Law Council that Mr Hicks will not receive a fair trial under a US military commission process at Guantanamo Bay.
Releasing the report of Lex Lasry, QC, Law Council President Bob Gotterson, QC, accepted the strongly expressed recommendations of the observer and said the Australian Government must now make efforts to have Mr Hicks tried under an independent and properly constituted judicial process.
The report says the military commission proceedings being pursued against Mr Hicks are flawed, making a fair trial virtually impossible.
"Mr Lasry recommends the Law Council call on the Government to request the United States to remove David Hicks from the military commission process, and either place him before a court martial, the US civilian criminal justice system or return him to Australia," Mr Gotterson told a press conference today.
"The Law Council, having reviewed Mr Lasry's report, is in full agreement with this view. We believe the Australian Government must now make strenuous efforts to ensure any proceedings under which Mr Hicks might ultimately be tried take place in a properly constituted and independent court with conventional rules of evidence and a judicial appellate structure."
"If there is insufficient evidence to place before a court martial or the US criminal justice system in relation to Mr Hicks, he should be released," Mr Gotterson said.
Mr Lasry told the Law Council that a fair trial for David Hicks is virtually impossible because:
- The military commission in this case is not independent in any sense that would generate confidence in its impartiality, because the process has been created and is exclusively controlled by the executive of the US government.
- Five of the six members of the commission are not legally qualified – this is a concern because they are required to resolve both issues of fact as a jury would and issues of law as a judge would.
- The rules of evidence are all but absent. The rules which do exist seem to facilitate the admission of evidence which will never be able to be tested by cross examination and should, ordinarily, be devoid of any probative value. The consequence is a likely unfairness that goes to the root of the fair trial issue.
- There is no viable appellate process which can impartially correct errors and remedy a miscarriage of justice.
In addition, Mr Lasry pointed out:
- There is a strong relationship between the Presiding Officer and the Appointing Authority (in other words, the US Government).
- Several of the current members of the commission may have a predisposition on relevant issues because they were operationally involved in Operation Enduring Freedom in Afghanistan against the Taliban; or because they were significantly emotionally affected by the events of 11 September 2001; or because they have already formed and expressed views adverse to the interest of the detainees at Guantanamo Bay.
- For a number of reasons there is an unacceptably high risk of a miscarriage of justice.
Mr Gotterson said that Mr Lasry's report would help any fair-minded person see the inherent deficiencies of the US military commission process, the inevitability of an unfair trial and the potential for Mr Hicks' continuing unjustified incarceration.
"Clearly Mamdouh Habib should also not be placed on trial before a military commission," Mr Gotterson concluded.
[Click the link below for a copy of the report] |
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Lasry Report - Final.pdf (PDF 265.2 kb) |
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