The Law Council of Australia has called on the federal government to drop
its endorsement of David Hicks' military trial after a damning new report
by top silk Lex Lasry, QC.
Law Council president John North said Hicks' chances of a fair trial had
deteriorated even further as new concerns were raised about the fairness
of the military commission process.
"The Law Council has therefore urged the Australian government to put
pressure on the United States government immediately to bring Mr Hicks
before a properly-constituted trial, not a military commission," he told
reporters in Melbourne.
"If that cannot be done then we have asked that he be immediately released
back to Australia.
"We are saying that it is impossible for Mr Hicks to get a fair trial
where the US Department of Defence plays the accuser, jailer, prosecutor,
defence attorney, judge and jury in a matter."
Mr Lasry's latest report found there was a "significant risk" the trial
would adopt witness statements from fellow detainees, which may have been
given under duress, without testing them.
Some of those detainees had been released and were unlikely to be returned
for cross-examination, Mr Lasry said.
"Any statement that's made by a witness or an accused which is the product
of physical coercion is obviously tainted, primarily because it's not
voluntary," he said.
That concern was added to a litany of existing criticisms of the military
commission including its lack of independence, the commission members'
lack of legal training, the absence of rules of evidence and the lack of
an appeal process.
Mr Lasry has been appointed by the Law Council of Australia to observe
legal proceedings against Hicks.
He criticised Prime Minister John Howard and Attorney-General Phillip
Ruddock for refusing to acknowledge flaws in the legal process.
"The prime minister has, as recently as a couple of days ago when he was
in Washington as I recall, expressed the view that he thought the process
was fair," Mr Lasry said.
"It is, with great respect to the prime minister, incomprehensible that
anyone could look at these rules and see how this process works and think
it was fair, particularly dealing with a person who's now been in custody
for a period of four years."
Mr Lasry said Australia's "moral authority" was at risk by condoning the
In reply to a draft of Mr Lasry's report, Mr Ruddock told the Law Council
there was no evidence Hicks had been mistreated nor that the commission
members were not independent.
Nevertheless, the federal government had sought assurances from the US
there was enough evidence to proceed against Hicks after noting claims by
his lawyer "that the prosecution case is based largely on hearsay
evidence", Mr Ruddock wrote.
A US court last week cleared the way for Hicks to be tried on charges of
attempted murder, conspiracy to commit war crimes and aiding the enemy.
Hicks, 29, has pleaded not guilty to the charges.
He has been detained at Guantanamo Bay since January 2002, following his
capture among Taliban forces in Afghanistan in late 2001.