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More Blog Bologna

Niall Cook once again misleads in his blog entry To Tribunal or not to Tribunal, in which he argues against the US military tribunals used to try accused terrorists such as Australian David Hicks.

Niall begins his diatribe by attempting to argue that Hicks should not have been detained at all since he is not a member of Al Qaeda. He states that:

“Whether David Hicks is, was or ever has been allied with the Al Qaeda terror organisation remains a thoroughly moot point.”

He then goes on to state the following:

“All evidence to date indicates that he trained with a Pakistani group of “romantic revolutionaries” known as with Lashkar e-Toiba, operating out of Kashmir, before going to Afghanistan to fight for the Taliban against the Northern Alliance. The terms ‘Taliban’ and ‘Al Qaeda’ are not synonymous. David Hicks has not been identified as an Al Qaeda member, yet has been held without trial or access to legal representation by the US at Guantanamo Bay, Cuba for the past 22 months..”

Here, Niall mixes his contentions. He firstly states that Hicks was not a member of a group allied with Al Qaeda, and then argues that he was a member of a group that was not Al Qaeda. But he admits that Hicks was fighting for the Taliban, and every fool knows that the Taliban was fighting with Al Qaeda! Whether Hicks was an actual member of Al Qaeda or not is thoroughly irrelevant, according to the Military Tribunal Authorization Act of 2002. Section 3 of the Act provides the following:

(a) Authority.–The President is hereby authorized to establish tribunals for the trial of individuals who–

(1) are not United States persons;

(2) are members of al Qaeda or members of other terrorist organizations knowingly cooperating with members of al Qaeda in planning, authorizing, committing, or aiding in the September 11, 2001 attacks against the United States, or, although not members of any such organization, knowingly aided and abetted members of al Qaeda in such terrorist activities against the United States;

(3) are apprehended in Afghanistan, fleeing from Afghanistan, or in or fleeing from any other place outside the United States where there is armed conflict involving the Armed Forces of the United States; and

(4) are not prisoners of war within the meaning of the Geneva Convention Relative to the Treatment of Prisoners of War, done on August 12, 1949, or any protocol relating thereto.

Clearly, Hicks falls under this provision.

Next, Niall attacks the idea of a military tribunal:

“Trial by military tribunal is not a trial at all, as a military tribunal has no standing in law. A military tribunal is a commission of senior military officers holding judgement, under normal circumstances, over other military personnel. These senior military officers are, more often than not, career military personnel. In the case of Hicks and the other detainees to stand before this proposed tribunal, any career military officer who values his/her career would certainly not want to run contra to the instructions of his/her Commander-in-Chief, George W. The term ‘kangaroo court’ has been bandied about by Hicks family legal counsel here in Australia. Time will tell on that score, however, the US claims that the process will be fair and transparent seem incongruous in light of the standard functioning of a military tribunal.”

The military tribunal that Hicks has its origins in legislation, so I fail to see how it has no standing in law. Its only standing is in law! Furthermore, the provisions of the Military Tribunal Authorization Act of 2002 are very specific as to its procedural requirements. Section 4 provides a number of procedural requirements, including the following:

(1) That the tribunal be independent and impartial.

(5) That the accused have the opportunity to be present at trial.

(6) That the accused have a right to be represented by counsel.

(10) That the tribunal apply reasonable rules of evidence designed to ensure admission only of reliable information or material with probative value.

(11) That the accused be afforded all necessary means of defense before and after the trial.

(12) That conviction of an alleged offense be based only upon proof of individual responsibility for the offense.

Clearly, the Act requires a fair, independent and impartial trial, and not the ‘kangaroo court” type of trial envisaged by Niall. The US does not merely “claim that the process will be fair and transparent”, but has legislated towards these ends. Niall’s contention that this seems “incongruous in light of the standard functioning of a military tribunal” is out of place, given that no comparison can be made to these special military tribunals and regular military tribunals. Comparing the jurisdiction and procedural requirements between the two types is like comparing apples with oranges.

Niall even tries a bit of imagery when he talks of the review process:

“Somewhat akin to a bunch of naughty boys deciding whether to pull the wings off a fly or simply squash it under a thumb. Either way, the fly eventually dies.”

Funny….I thought the only killing involved here was perpetrated by Al Qaeda and its allies.

Finally, Niall displays his knack for reducing everything down to a simple equation when he states that:

“The issue is…one of wounded super pride seeking to somehow justify its actions in detaining 650 human beings against their will without legal representation or judgement before a court of their peers.”

Niall seems to be forgetting that thousands of innocent people were murdered by terrorists, likely to have included David Hicks, and the US is seeking justice.

Then again, this is not the first time that Niall has forgotten who are the terrorists and who are the victims.

About the author

Picture of David Lange

David Lange

A law school graduate, David Lange transitioned from work in the oil and hi-tech industries into fulltime Israel advocacy. He is a respected commentator and Middle East analyst who has often been cited by the mainstream media
Picture of David Lange

David Lange

A law school graduate, David Lange transitioned from work in the oil and hi-tech industries into fulltime Israel advocacy. He is a respected commentator and Middle East analyst who has often been cited by the mainstream media
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