Last night, a US Federal Court of Appeals held by a 2-1 majority that federal courts do not have “jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba”.

This is the last but not the final challenge by Guantanamo detainees to the proposed military trials.

It took the appeals court six months (after argument) to hand down this judgment. There will certainly be an appeal to the US Supreme Court and that will take months as well – possibly longer. The fact that there was a dissenting judgment gives support to another appeal.

A USSC appeal will delay Hicks’s trial indefinitely.

I have always preached that the two best defence strategies in any criminal case are delay and confusion because they always work in favour of the accused.

This is true in the Hicks case. Hicks has been detained by the US since 17 December 2001 without trial. This in itself is scandalous, whether he is guilty or not. On the face of it, most of the delay has been caused by defence tactics of challenging the jurisdiction all the way up to the Supreme Court. The fact is the US legal system moves very slowly. It is not the fault of the detainees if they take advantage of it.

In retrospect, it is plain that the early decision to try these men outside of the US domestic legal system was not only legally wrong but strategically disastrous. But all this should have been obvious at the time of the decision. Any defence lawyer could have told the US government that this sort of extra-jurisdictional process would be challenged for years in the US courts. The government has received some very bad strategic legal advice and continues to receive bad advice.

I think that the US government has little choice but to release not just Hicks but all of these men. I cannot see any valid legal right to continue to hold them. If it wishes to save something from the wreckage then it should immediately commence domestic criminal prosecutions where there is good evidence.

In my opinion, Hicks is a vile, despicable and abhorrent creature who chose to support the Taliban, one of the worst regimes in recent history. He is not a hero and certainly not an Australian hero. He deserves to be condemned for what he has done. But despite all of this, he has the fundamental right to be tried by a court or released. He has not been tried. He must be released.

All of this may bring down John Howard. But in the end, the truth is that the Federal Government has been asleep at the wheel.

Peter Fray

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