After being held incommunicado and in solitary confinement at the US military prison at Guantanamo Bay, Cuba, for nearly three years, Australian citizen David Hicks was brought before a five-member US military tribunal on August 26 and charged with alleged war crimes — conspiracy to "attack civilians", "attempted murder" (by allegedly firing at US forces during the US-led invasion of Afghanistan in late 2001) and "aiding the enemy" by fighting alongside the armed forces of Afghanistan's Taliban government.
The military commission system under which Hicks will be tried was set up under an order issued by US President George Bush in November 2001. The order declared that it was "not practicable" for these commissions to follow established "principles of law". In fact, the commission system involves such a departure from these principles that it amounts to a mock trial — a reversion to the days before the Magna Carta (1215) of special ad hoc tribunals set up by an absolutist ruler to ensure the conviction of persons designated by that ruler as "enemies" of the state.
Under the military commission system, Bush, as US commander-in-chief, designates who is going to be tried, as well as the prosecutors and the judges. There is no right of appeal to any outside court, and the US commander-in-chief makes the final decision on any sentencing, including execution. Even in the unlikely event that the commission acquits a defendant, the US military can continue to detain them indefinitely.
The rules of evidence are so wide-ranging that the commission's presiding officer can allow any evidence, including anonymous hearsay or "evidence" provided under coercion, as long as the presiding officer believes it is "convincing to a reasonable person".
Like most of the other prisoners being held at Guantanamo Bay, who were also captured on the battlefield during the US-led invasion of Afghanistan, Hicks has been classified as an "enemy combatant". This is a legal category invented by the Bush regime to enable it to strip the Guantanamo detainees of the legal rights they should enjoy under the Geneva conventions as prisoners of war.
Under these conventions, any POW who is to face trial must first be evaluated by a "competent tribunal", that is, an independent court, and be accorded the same legal rights apply in the detaining powers' law, in other words, under US law.
The Bush administration's military tribunal system for those classified as "enemy combatants" is deliberately designed to circumvent both US law and the Geneva conventions. This is clearly indicated by the charges that have been brought against Hicks. In direct contravention of the Geneva conventions, which provide for prisoners of war to be tried only in exceptional circumstances and not simply for fighting in a war, Hicks has been charged with a "crime" of fighting with the forces of the then government of Afghanistan against the invading US forces.
Most people would assume that an "enemy combatant" taken prisoner during a war is a "prisoner of war". Not so, according to the Bush administration. In an executive order issued in February 2002, Bush decreed that all those combatants detained in Afghanistan by US-led forces "are unlawful combatants and, therefore, do not qualify as prisoners of war".
Hicks' trial will be part of the concerted drive, conducted under the cover of the global "war on terror", to eliminate all obstacles to the creation of a "new American century" of global US political and economic dominance.
A necessary part of this drive is the attempt to win public acceptance for the idea that the US president, as commander-in-chief of the US military, is not bound by international or US laws. It is part of a drive to legitimise the US president as an imperial tyrant who can arbitrarily declare any country that does not bow to US corporate interests a "rogue state" to be subjected "pre-emptive attack" by the US military — and to set the US military up as the judge, jailer, torturer and executioner of any and all who resists Washington's rule.
From 91×ÔÅÄÂÛ̳ Weekly, September 1, 2004.
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