On 26 March, the first proceeding under the Military Commission Act (MCA) is due to take place at Guantánamo with the arraignment of Australian detainee David Hicks. Another 23 detainees of 13 nationalities have currently been identified as potential defendants for trial by military commission.Amnesty International does not believe that trials under the MCA will meet international standards of fairness. In cases of civilians taken into custody outside a zone of armed conflict, the military commissions should not even have jurisdiction to try them. … [1]
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… Many, including the Prime Minister, have pointed out that the length of Hicks’ detention has certainly been exacerbated by the challenges made to the earlier military commissions. But Guantanamo Bay detainees were entitled to resist the legality of the process by which they were to be tried — and were vindicated by the United States Supreme Court in the Hamdan decision of last year.
That case forced the American Government to redesign the powers and procedures of the military commissions. The revamped system received the approval of Congress, but Major Michael Mori, Hicks’ US military lawyer, continued to argue that the validity of the new commissions under the international Geneva Convention remained in doubt. There certainly remained elements — including reliance on hearsay evidence — that gave disquiet over the fairness of the process by which Hicks was to be tried. … [2]
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…Guantanamo Bay observer and Australian lawyer Lex Lasry QC said the media gag would be unconstitutional under US law and it was an “interesting co-incidence” the 12-month gag would extend past the upcoming federal election. …[3]
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…”And yet there is nothing in the Australia-US arrangement that seems to reflect the enforceability of this,” he told ABC Radio.
“And, indeed, it could be argued that if the Australian government was agreeing to such an order, it’s contrary to the Australian constitution, where the High Court has said there is a right of freedom of political communication in the Australian constitution,” Prof Rothwell said. …[3]
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[1] Military Commissions Act: Justice delayed and justice denied at Guantánamo [Amnesty International]
[2] Guilt in the minor league 28-Mar-2007 [The Age]
[3] Ruddock denies asking for Hicks’ gag deal 02-Apr-2007 [The Age]









