Guilt by association

Only two months ago former US President Jimmy Carter called for the international community to normalise relations with Hamas. The declaration coincided with Carter meeting Hamas leaders in Syria, a move that helped precipitate the current ceasefire in the Gaza Strip. Even hardened enemies like Israel and Hamas have the capacity to negotiate and, in the process, legitimate each other's existence.

Here is my latest piece, it's on the problems inherent in preventing humanitarian agencies from working with proscribed terrorist organisations when such cooperation is often necessary to help those who require the most humanitarian assistance.

Israel at 60

Locked into the mantra of preserving its Jewish character, Israel refuses to comprehend the extent to which it has forsaken the memory of the oppressed for the fruits of the oppressor.

Today marks the 60th anniversary of the creation of Israel. Here is my take on what Israel represents in the 21st century.

US aid to the Middle East

The relative lack of critical analysis of the United States' military aid package to favoured Middle East nations reveals a great deal about contemporary measures of peace and security (Report, August 1). How, exactly, does a $20bn military aid package foment peace? The US offers yet another golden handshake to regimes, Jewish and Arab alike, with questionable human rights records and we are meant to understand that this is in the interests of peace.

What is clear is that the military aid continues the long tradition of US-funded militarism in the Middle East, a militarism expressly forbidden under international law, including under several UN security council resolutions which have called for the demilitarisation of the Middle East. It is high time we were honest; the US itself is the greatest threat to peace and security in the Middle East.

Mustafa Qadri
London

Published in today's Guardian newspaper and online.

'The West' and 'The Other'

The respected international relations theorist and former United States Department of State employee Samuel Huntington explains the significance of the West as agent of civilisation:

“The West has, in short, become a mature society entering into what future generations, in the recurring pattern of civilizations, will look back to as a “golden age,” a period of peace resulting in... “the absence of any competing units within the area of the civilization itself, and from the remoteness or even absence of struggles with other societies outside.””[1]

Leaving aside the accuracy of Huntington’s statement, implicit in it is an assumption that the “absence of struggle” is a product of the intrinsic nature of “the West” and its “commitment to democratic and pluralistic politics”[2] which other societies have at present proven incapable of fully realizing. For Huntington this incapacity is not explained by a failure of tactics or strategy on the part of other “civilizations”. Rather, other civilisations seek hegemony on terms that are either totally or generally antithetical to democracy and pluralistic politics. The West therefore is the exception to an otherwise still chaotic world, a world in which acts of genocide are perpetrated. But where the West is concerned it is an exception that proves the rule, the rule being that international peace and order cannot be realized unless the centre of civilisation, the West, takes a leading role. While Huntington goes further to lament the inevitable demise of the West as the hegemonic world civilisation,[3] he does not view as inevitable that future hegemons will reproduce the West’s “golden age” because they have not hitherto demonstrated the necessary capacity for lasting stability along democratic and pluralistic lines. Implicit in this is a belief that, matters of politics apart, the West retains a moral responsibility to remain hegemonic so that it may continue to be the paramount expression of human civilization.

In strikingly similar terms, Mahmood Mamdani relates a dominant expression of the distinction between civilised West and uncivilised others:

“…the world we live in is divided in two: between those modern and those pre-modern. It is said that those modern make their culture; they have a reflexive attitude to it; they can separate the good from the bad, build on the good and correct the bad; their culture develops historically; and the story of that historical development is what we call progress. The pre-modern peoples, in contrast, are said to be born into a culture; they are said to have a tendency to internalize their culture rather than have a critical attitude to it. Rather than make their culture historically, they seem condemned to live it uncritically, and content to pass it on from one generation to another. Pre-modern peoples are said to wear culture as a badge, or to suffer from it, like a twitch, even a fever.”[4]

Mamdani here is speaking of the manner in which two key American public intellectuals understood the cultural boundaries of the current United States War on Terror. But his assessment also resonates with the historical colonial distinctions between civilised and uncivilised, the West and the Other, modern and pre-modern.

The distinction between those with the capacity to civilise and those who require civilising is significant for a number of reasons. For our purposes there are two in particular that warrant further consideration. Firstly, it reminds us of the moral dimension of colonialism. If colonialism represents a power relationship, then it is a relationship where the colonial power believes it has the moral authority to intervene in the affairs of the peoples they wish to subordinate. Secondly, as contemporary literary theorists like Edward Said have shown, representations that reproduce a relationship of subordination endure even after formal representations of decolonisation have been obtained.[5] The international law of genocide is no exception in either of these respects.

---

Samuel Huntington, The Clash of Civilizations and the Remaking of World Order, London: Simon & Schuster (2002), at p. 302.

Ibid.

Ibid, at p 91.

Hobhouse Memorial Lecture, London School of Economics, London, 8 March 2007. Text of speech available at: http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20070308_HobhouseMemorial.pdf. Accessed 18 May 2007.

Edward Said, Orientalism London: Penguin Books, 2003, at pp. 284-328 generally and pp. 295-297 specifically.

This is an excerpt from a paper I delivered at the International Law and Society Conference in Berlin, Germany 28 July 2007. If you would like a copy of the paper please leave your email address in the comment box.

Dictatorship Pakistan

Musharraf's dismissal of the Pakistani Chief Justice reveals the true face of the War on Terror.

Friday, or ‘Jumma’ as it is known to Muslims, is the holiest day of the week. It is usually a day of rest and reflection. It was on a Friday, 9 March 2007, that President Pervez Musharraf of Pakistan told the country’s senior most judge, Chief Justice Iftikhar Mohammed Chaudhry of the Supreme Court, that he was being dismissed due to allegations of misconduct. Little detail of the alleged misconduct was made public by the Government. What information is known of the allegations came from an open letter to the Chief Justice from a noted pro-Government lawyer and television presenter, Naeem Bokhari.

Bokhari alleged that Chaudhry excessively intimidated advocates in court, that he used his influence to get his son a comfortable Government job and shielded him from a court investigation, and that the Chief Justice abused his government transport privileges (an allegation that Justice Michael Kirby of the Australian High Court may well appreciate). In a country rife with corruption, where ‘contacts’ and family networks are necessary to get everything from your driver’s licence to electricity, and where it is a well known ‘secret’ that President Musharraf himself has acquired many acres of public land for his private use, dismissing such a senior government official on such flimsy allegations seems rather harsh. In fact, it appears the allegations are a smoke screen for a politically motivated dismissal.

According to one of Pakistan’s most senior constitutional lawyers, former Law Minister Syed Iftikhar Hussain Gilani, Chief Justice Chaudhry told him:

[T]he president had given him [Chaudhry] two options — either to resign and the government would take care of him which meant that he would be accommodated at some lucrative post, and second to face the reference [alleging his misconduct]. And he told him that he would face reference.

Confusion has reigned over the dismissal. Originally, it was asserted that he had been removed from office. Then, perhaps after Government lawyers inspected the nation’s constitution, it was announced that Chaudhry was still the Chief Justice and had merely been placed on “forced leave” while an investigation into the allegations unfolded. There were also reports that he was under house arrest. Yet only a few days after his removal, Musharraf, through the Acting Chief Justice, confidently assured all that Chaudhry was not under house arrest and was free to do as he pleased – except return to the Supreme Court.

After private television stations broadcast images of the Chief Justice and members of his family being manhandled by police, a Supreme Court panel was hastily set up to investigate the incident. At least one of these stations was ransacked by police for showing images of police clashing with lawyers protesting the Chief Justice’s removal. Soon after, the Government took both private television stations off air. The public outcry from these actions eventually forced the Government to allow the television stations back onto the airwaves and compelled Musharraf to personally apologise live on air.

Given this environment, it is very unlikely that Chaudhry will be able to serve as Chief Justice with the same level of freedom and impartiality as before. His best hope of returning to the Court at all would be through concerted political pressure. In a dictatorship heavily reliant on foreign military, economic and political support, the most effective form of pressure would be from key international allies, particularly the United States but also Britain, and even Australia. I will elaborate on this further later.

The real reasons for his dismissal

It is widely understood in Pakistan that Chaudhry has been removed not because of any misconduct but because he threatened Musharraf’s absolute rule, as demonstrated in a number of Supreme Court decisions which condemned the corruption and oppression of Musharraf’s Pakistan. Last year the Chaudhry Supreme Court refused a government request to dispose of a matter seeking to trace the whereabouts of hundreds of missing persons believed to have been abducted by Pakistani intelligence services. Chaudhry and a majority of the Supreme Court have been highly critical of the Musharraf Government’s inability to prosecute individuals guilty of ‘honour’ crimes against women and children, particularly in rural Pakistan. Last year the Chaudhry Supreme Court over turned the sale of the National Steel Mills to a private consortium on the grounds that it was unconstitutional. Prior to the decision, the Government had virtually completed the sale of the National Steel Mills to a consortium headed by a close friend of Pakistan Prime Minister Shaukat Aziz at below the steel mill’s market price.

Another perceived reason for Chaudhry’s removal was Musharraf's fear that Chaudhry would not endorse his re-election as President while also holding the office of Chief of the Armed Forces later this year, presumably on the basis of its questionable constitutionality.

Although these decisions suggest that Chaudhry is something of a judicial activist, he is also a respected member of Pakistan’s elite society. In 2004, Chaudhry supported President Musharraf’s amendment of the national constitution to enable him to serve as both Chief of the Armed Forces and President at the same time. The following year Chaudhry was promoted to Chief Justice. Such is the ever increasing impunity of the Musharraf regime that simple judicial accountability has become a heresy, even when practiced by a respect member of elite society.

A dangerous vacuum in legitimate authority

Chaudhry’s dismissal has increased Pakistan’s already fragile political fabric in a way that is difficult to underestimate but easy to misinterpret. One obvious repercussion has been the further erosion of the Musharraf regime’s legitimacy as the government of Pakistan. Already a deputy Attorney-General and at least five judges have resigned in protest at the dismissal. Thousands of lawyers throughout Pakistan have staged boycotts of the country’s courts system. The main opposition parties have also condemned the dismissal, some even demanding that Musharraf resign. What is most interesting about this opposition is that it has united, at least for the time being, parties from both the religious and secular sides of the political spectrum.

Whereas the general perception in the West is that Musharraf is a bulwark against a growing Islamist movement in Pakistan’s Army and frontier regions, Chaudhry’s dismissal undermines one of Pakistan’s most powerful surviving secular institutions – a common law judiciary modeled on its English counterpart.

In an environment where governance is mired in corruption and human rights abuses are frequent, the Supreme Court has been one of the few institutions capable of challenging the twin threats of fundamentalist violence and increasing authoritarianism. Pakistan has a system of Sharia or ‘Islamic Law’ Courts whose decisions only the Supreme Court has the power to overturn. This has been demonstrated over the past few years in a string of matters where the Supreme Court overturned decisions of the Sharia Court which allowed a number of sex offenders to go unpunished, and which had limited the rights of women in property disputes. The Supreme Court’s scrutiny of the Musharraf regime has already been described above.

Silence from the West

There has been a deafening silence from the United States, Britain, and Australia – all key allies of Pakistan – over the Chief Justice’s dismissal. The US State Department’s first response to the dismissal was to assert that it was an internal matter for the Pakistan Government to sort out. A US Department of State spokesperson later explained:

We believe that President Musharraf has made a commitment to change Pakistan and we think that is a positive thing. We're not going to dictate to him or anybody else and the Pakistani people exactly what those changes are going to be or specific steps that they might need to take. Of course we can offer guidance and counsel and encouragement to continue along the pathway to democracy. But President Musharraf is good -- has been a solid friend in fighting the war on terror.

Neither the British nor the Australian Governments have issued any public statement on the dismissal.

This remarkable silence is not an insignificant matter. Pakistan is heavily reliant on economic and political support from the West, particularly from the US. Without this support there is a real prospect that Pakistan would become a failed state like its eastern neighbour Afghanistan.

Prior to September 2001, the Pakistan economy was severely depressed due to an international economic embargo in response to its decision to go nuclear and refusal to become a party to the Nuclear Non-Proliferation Treaty. That situation quickly changed as Musharraf realized a dramatic shift in the political winds. As the US State Department country profile for Pakistan explains:

The events of September 11, 2001, and Pakistan's agreement to support the United States led to.. military assistance… to provide spare parts and equipment to enhance Pakistan's capacity to police its western border and address its legitimate security concerns. In 2003, President Bush announced that the United States would provide Pakistan with $3 billion in economic and military aid over 5 years. This assistance package commenced during FY 2005.

Incredibly, that economic support is expected to increase over the next few years despite the present crisis.

It would be unsurprising if, in the event a regime unfriendly to Western interests came to power in Pakistan, there was a sudden well spring of concern and condemnation of Pakistan's poor human rights record, lack of democratic reform, and support for militant orthodox Muslims – all of which the present regime that is allied to the West is already guilty.

A telling contradiction

At the same time as current events were unfolding in Pakistan, Foreign Minister Alexander Downer found time to condemn the Mugabe regime in Zimbabwe:

The brutal suppression of a rally in Zimbabwe over the weekend by the Mugabe Government, including killing an opposition activist, is further evidence of the regime’s utter disregard for basic democratic principles and the human rights of the people of Zimbabwe.

Both the US Secretary of State Condoleezza Rice and British Foreign Secretary Margaret Beckett made statements to the same effect.

The sad irony is that countries like the United States, Britain and Australia can play a bigger role in fomenting democracy in Pakistan than Zimbabwe because they have stronger and much more cordial military, economic and political ties with Pakistan. A bureaucrat from any one of these countries might claim that they are doing 'all they can' behind the scenes to protest the removal of the Pakistani Chief Justice. But there is no better way to win the ‘hearts and minds’ of ordinary Pakistanis and the global Muslim community than to issue a strong public condemnation of the dismissal.

Part of the thinking in the West, especially the US, Britain and Australia, may be that Musharraf provides stability in a volatile region of the world. The problem with this thinking is that it is incredibly shortsighted and naïve because it does not take into consideration the very dynamic nature of geopolitics in Pakistan and its surrounding region. Moreover, it places too much emphasis on Musharraf as an individual as an agent of stability. By investing so much in one individual, Pakistan’s western allies actually consolidate his grip on power instead of developing institutional stability in the country. Further, rather than being a vanguard against religious fanaticism and militancy, Musharraf is in fact creating a vacuum in legitimate authority that is improving the prospects of a militant Islamist takeover.

In other words, by supporting Musharraf and ignoring his contempt for democratic reform, of which the dismissal of Chief Justice Chaudhry is but the most recent example, Pakistan’s Western allies are actually undermining their own stated aim of combating religious fanaticism and promoting democratic reform around the world.

An edited version of this piece is available at New Matilda.

Masterminds and confessions

It seems that every so often a new terrorist mastermind emerges who is to be hunted down and brought to justice. Now it seems these masterminds also offer blanket, if remarkably convenient confessions. Khalid Sheikh Mohammed is the latest individual to fit this description. Mohammed has allegedly confessed to being the mastermind behind the 11 September 2001 attacks on the United States and to beheading American journalist Daniel Pearl in 2002. Most of the media has reported these confessions with remarkably little skepticism. In the United States, and in much of the rest of the world, the image of yet another Arab-looking man with scruffy hair confessing to committing a serious act of terrorism is unlikely to solicit much skepticism.

But skepticism is something that is necessary when seeking to understand the present situation, and there are a number of good reasons for this. First among these is the likelihood that the confession was obtained under torture. The United States actively seeks information obtained under torture. A number of Guantanamo Bay detainees past and present have made allegations of being tortured. Pakistan, where Sheikh Mohammed was captured, is known to routinely use torture. There is also the well documented use of torture at a number of prison facilities operated by the United States, Britain and others in Iraq of which Abu Ghraib is but one well publicized example. Lastly, there is the United States’s long standing practice of extraordinary renditions – the secret abduction of individuals suspected of involvement in terrorist activities, who are often later found to be totally innocent, to be interrogated in countries known to actively practice torture in Eastern Europe, Central Asia, the Middle East and north and central Africa.

Given the immense importance placed on him as a top Al Qaeda operative, and the nature of the sweeping confessions he has provided, it is not far-fetched to presume Mohammed’s confessions were obtained under torture. This gives good reason to question the evidentiary value of these confessions.

There is a further reason to be skeptical of Mohammed confession and this has everything to do with politics. The Bush Administration has been under immense pressure in the wake of a revitalized Democratic Party and a string of scandals and errors including but not limited to the occupation of Iraq. Immediately prior to the Sheikh Mohammed confession being made public, both Democrats and Republicans started calling for Attorney-General Alberto Gonzales’s resignation following allegations that he dismissed a string of federal prosecutors for political reasons, and that the FBI improperly accessed personal information the Patriot Act. On 7 March former chief of staff to Vice-President Dick Cheney Louis Libby was found guilty of lying to FBI agents and grand jurors investigating the disclosure of a CIA operative. And in Iraq, an unpopular and illegal war continues to kill more and more Iraqis and Americans with no clear denouement in sight.

Announcing Mohammed’s confession at this juncture gives the Bush Administration an ‘announceable’ – something which tells the public that the Bush White House has delivered on its major stated policy of bringing terrorists to justice, while at the same time diverting attention from its mistakes. Even Mohammed’s capture three years ago on 1 March 2003 seemed remarkably expedient. Debate in the US and around the world in those days was thick with pronouncements of war with Iraq for its alleged stockpiles of weapons of mass destruction and support for terrorists. For the Musharraf regime in Pakistan, there was pressure from within and without. The US was putting pressure on Musharraf to support a further United Nations Security Council resolution authorizing an invasion of Iraq. Within Pakistan, the US’s soon-to-occur invasion was intensely unpopular, some even claiming that any overt support of the invasion by Pakistan could lead to Musharraf’s ouster. Moreover, at a moment when much of public awareness in the West had been focused on the alleged threat posed by Saddam Hussein and his alleged support for terrorists, it would not take much imagination to wonder why Pakistan was not the focus of an American invasion. The announcement of Mohammed’s capture at this time therefore gave Musharraf and Pakistan a wonderful bargaining chip with which to sit on the fence – avoid closer scrutiny of the strong links between the State and militant Islamists, and avoid overt support for the American invasion of Iraq.

Following Mohammed’s capture, the former head of Pakistan’s Inter-Services Intelligence, one of the most powerful institutions in the country, Hamid Gul spoke to Reuters.com:

Gul said news of the arrest appeared to have been leaked at a critical time, just as Pakistan was facing huge U.S. pressure to support a U.N. Security Council vote authorizing war on Iraq.

On Monday night, a senior ruling party official told Reuters the government, under massive domestic pressure to oppose war on a fellow Muslim state, had decided to abstain in the vote, news that shocked British and American diplomats in Islamabad.

The ISI earlier said it had called its first news conference in Pakistan's history to counter criticism in the Western media that it had not done enough in the war on terror.

Gul said the raid may have been staged -- and news of the arrest leaked -- for the same reason, against the backdrop of the U.N. vote.

Gul, who ran the ISI from 1987 to 1989, said the raid was conducted in far too casual a fashion to have been real, with police failing to properly surround or secure the house in a middle-class Rawalpindi suburb.

Unfortunately, the doubt over Khalid Sheikh Mohammed does not end there. Leaving aside whether Khalid Sheikh Mohammed is actually the mastermind the US claims he is, there is uncertainty as to whether the man who is in US custody is actually Khalid Sheikh Mohammed. On 3 March 2007 The Guardian reported that the family living in the house where he was believed to have been captured denied that Khalid Sheikh Mohammed had ever been there:

At no point, the family say, was Mohammed or any other man in the house. The agents did not even ask about them. "The only people in the house were my brother, his wife and their kids," Qudsia said. "I have absolutely no idea why the police came here."

On 11 September 2002, Pakistani officials claimed that they had killed or captured Mohammed during a raid in Karachi, Pakistan. It was later reported in some quarters that he had escaped but no mention was made of efforts to recapture him until the surprise disclosure of his capture almost 6 months later. To add to the uncertainty, following the announcement of his capture, officials from Pakistan and the United States variously claimed that Mohammed was being interrogated in Pakistan, by Pakistan, or outside Pakistan by the United States.

But perhaps the most surprising revelation of all was where Mohammed was allegedly captured. For not only was it claimed that he was captured in Rawalpindi, the headquarters of the two most powerful institutions in Pakistan – the Army and the Inter-Services Intelligence, the home which was raided was in a district where many retired Army generals and ISI officers live. It is hard to imagine that either the Army or the ISI did not know for some time that Mohammed was there.

Taliban representatives in Pakistan also expressed doubt as to whether the man captured was Khalid Sheikh Mohammed. As Pakistani journalist Tariq Ali explained on Australian television in March 2003:

Reports from Pakistan are coming out from what are described as Taliban sources, ie members of the former government in Afghanistan who are now around in Pakistan, who are denying that he has been captured and saying, "We know exactly where the guy they're claiming to have captured is," and until he is produced before a court of law or interviewed or allowed access to the press or lawyers, we will not know who he is.

These uncertainties alone do not indicate that an innocent man has given a false confession to US authorities. It is possible that Khalid Sheikh Mohammed is currently facing trial at Guantanamo Bay and that he was involved in the 11 September attacks. The dilemma in the present situation is not that it points to a vast global conspiracy. Rather, it demonstrates the dangers of the very secretive and unaccountable practices of the United States security apparatus and its Pakistani counterparts. In the present climate, it is impossible to know fact from fiction because those arms of government charged with the impartial identification of security threats have been subsumed by political pressures. This creates a dangerous environment of distrust and uncertainty where no one is quite sure who is telling the truth, least of all the public but perhaps by government also. There is a real prospect that the United States’s and Pakistan’s politically motivated revelations of terrorist threats and confessions will mimic the old children’s fable of the boy who cried wolf. The question is will they be ready to respond when the real wolf strikes?

An edited version of this piece is available at New Matilda.

David Hicks: New Charges — Same Old Problems

On 3 February 2007, the United States brought new draft charges against David Hicks for his alleged involvement in terrorist activities. The charges are still draft because they have still to be ‘approved’ by the authority overseeing the Military Commission established to prosecute him.

The problem with these new charges is that, whether or not they are approved, they do little to suggest that he will receive a fair trial. This is because the new charges and the new Military Commission created to prosecute Hicks and other Guant á namo Bay detainees suffer from the same legal deficiencies that the US Supreme Court identified in the original Military Commission process.

The US Government was compelled to bring new charges against Hicks under a new Military Commission in the wake of the US Supreme Court’s decision in the case of Hamdan v Rumsfeld. In that case, the Supreme Court held that the regime for detention and prosecution of Guantánamo Bay detainees was unlawful. Among other things, the Court held that Guantánamo Bay detainees are protected persons under the Geneva Conventions of 1949, and that the US Government had failed to afford Salim Ahmed Hamdan, a Guantánamo Bay inmate, a fair trial as it is obliged to under Article 3(1)(d) of the Geneva Conventions.

The Hamdan decision was no work of radical jurisprudence. Indeed, the Supreme Court did not even address all of the deficiencies of the first Military Commission with respect to the Geneva Conventions. The decision, nevertheless, caught the Bush Administration off guard. Despite the presence of six Republican appointees to the Supreme Court bench, three of whom did not support the majority decision, it was difficult to avoid the abject unlawfulness of the detention regime at Guantánamo Bay, even if one were limited to an analysis of the applicable Geneva Conventions.

Bizarrely, the Bush Administration’s response was to reconstitute the Military Commission under the authority of legislation passed by Congress rather than Presidential Order as had originally been the case. Apart from this, the Military Commission process remained effectively the same as it had been before the Hamdan decision.

The Geneva Conventions provide broad but sensible protections to persons — either enemy combatants captured during hostilities or civilians — to ensure that they are treated in a fair and humane manner. Significantly, the Conventions do not prohibit the sentencing of captured enemy combatants or even the administration of penalties for crimes committed during a period of conflict. It is important to note this because, hitherto, David Hicks has not been lawfully charged with any offences, let alone found guilty of any offence.

It is not at issue whether the US has legal capacity under domestic and international law to capture and prosecute enemy combatants. What is at issue is that Hicks has been detained since December 2001 without being lawfully charged or sentenced, and that he has made numerous serious allegations of torture throughout his detention. There is nothing in the new charges which mitigates this situation.

The new charges are a slightly more detailed reproduction of the original charges brought against Hicks in 2004. In short, it is now alleged in more detail that Hicks willfully participated in al-Qaeda and Taliban actions against the US in Afghanistan and abroad. It is now alleged that:

• surveillance training Hicks received from Lashkar-e-Toiba , a group based in Pakistan considered a terrorist organisation by the United States and Australia, contributed to the October 2000 terrorist attack on the USS Cole in Yemen;
• Hicks willfully engaged and sought to engage US and Northern Alliance troops with the Taliban and al-Qaeda, even after it was clear that it was a losing battle;
• Hicks trained other militants on how to fight the US and Northern Alliance in Afghanistan; and
• Hicks saw footage of the 11 September 2001 terrorist attacks on the United States and said that this was a good thing.

It is also alleged that Hicks participated in terrorist activities with a range of known ‘associates of al-Qaeda’ including John Walker Lindh, the ‘American Taliban’ who was brought before a US civilian court and is currently serving a 20-year jail sentence, and Richard Reid, who was arrested in the US after attempting to set off a shoe bomb on a passenger airplane.

Slightly more detailed allegations are provided on Hicks’s whereabouts during the US and Northern Alliance campaign against the Taliban. The new charges omit the earlier allegation that Hicks translated al-Qaeda operations manuals from Arabic to English. This is significant because it suggests that there was little or no evidence to substantiate that original claim.

A general concern with the charge sheet is that it is vague, and yet seeks to link Hicks to events, such as the attack on the USS Cole, and personalities, such as Lindh and Reid, that have entered the popular canon of terrorism. The irony is that even if the charges are vague and disjointed from a legal standpoint, they are likely to resonate with the public sentiment that Hicks was part of a global terrorist network — regardless of the outcome of the proceedings.

I believe both the US and Australian Governments are relying on such a public sentiment to drown out criticism of the proceedings on the grounds of fairness and justice.

Another concern is the extent to which the evidence which will be tendered against Hicks was obtained under torture or plea bargaining. For example, were other inmates offered a reduced sentence in return for ‘evidence’ linking Hicks to al-Qaeda activities in Afghanistan? Such scenarios are purely speculative but far from implausible.

The Australian Government has welcomed the new charges on account of its stated policy that Hicks must be brought to trial for his alleged involvement with terrorist organisations. Although the Government has slowly started to increase the urgency of its calls for Hicks’s return to Australia, it has refrained from making any legal criticisms of the Military Commission process, such as those outlined by the US Supreme Court in the Hamdan case.

In fact, from the very outset, the Australian Government has been supportive of the US’s treatment of Hick. Prime Minister Howard has even acknowledged that he could secure Hicks’s transfer to Australia if he so wished. Howard claims that he has not done so because he wants Hicks to face trial, something which is impossible in Australia because Hicks has not committed any offences under Australian law.

There is a real possibility that Hicks is an innocent man whose only crime was being at the wrong place at the wrong time. If David Hicks is returned to Australia without a conviction of some sort, the US would effectively be admitting that it had no good reason for detaining him in the first place. But even if Hicks is not found guilty of any crimes, it is likely that some sort of restraining order will be placed on him in Australia.

Either way, it is unlikely that Hicks will lead a normal life.

This piece originally appeared in New Matilda.