The US Supreme Court, in a 5/3 vote, has ruled the military
tribunals set up by executive order of President Bush are illegal. The Court
held the tribunals to be contrary to law. They were also prepared to apply the
Geneva Conventions to these detainees. The case was brought by Mr Hamdan who
was bin Laden’s bodyguard and driver.

This decision is a massive legal setback in the so-called
“War on Terror” waged by the Bush administration after the attacks of 9/11. It
is also a major psychological blow to the policies of Bush, which are
already rapidly losing support in the US. The US conservatives will kick and scream about unelected
judges restricting the war. But the Court has spoken and that’s the end of

It is difficult to predict what will happen next. It sees to
me that a necessary and logical conclusion is that the detainees have been
imprisoned for four years for an illegal and improper purpose, that is, a trial
before an illegal military tribunal. As the Geneva Conventions have been found
to be applicable, as a matter of justice they must be released immediately.
Many of the remaining detainees were believed to be fanatical terrorists who, if
released, would continue with their previous occupation. But I cannot see how
they can be detained further. Terrorists have rights – they are human beings,
after all.

My guess is that there will now be applications to the US
Supreme Court for the immediate release of these detainees by way of habeas
corpus. In its present mood, the Court would be likely to release them (but
this is all very speculative).

What does this mean for Australia? Well, Australia’s most
famous prisoner, David Hicks, will have to be released immediately. He has been
held illegally for four years. The Australian Government must intervene to
bring him home.

The Australian Left will be ecstatic – and have every right
to be. They were right and John Howard and I were wrong. One wonders, now that the Geneva Convention applies to
terrorists, if Hamas will reciprocate and release Corporal Shalit? Will they
observe the Convention? We can only wait and see.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey