Top military QC condemns Guantanamo trials/Australia

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There has been condemnation from one of Australia's top military lawyers of the process set up by the United States to try detainees at Guantanamo Bay, including South Australian David Hicks. Yesterday, the ABC obtained emails from two prosecutors with the US military commissions, saying the procedures are rigged and describing the cases being pursued as marginal. The Pentagon has dismissed the claims.

Speaking on ABC Radio's AM program, the head of the military bar at the Australian Defence Legal Service, Captain Paul Willee QC, says if the emails are correct, he has serious misgivings about whether the detainees can get a fair trial. "If what's been said in emails that we've seen is true then I would describe it as a charade because it breaches every single precept of natural law and justice in the criminal context," he said. "None of those promises would guarantee that they would be fair if the military commissions continue in the way in which it's they are alleged at the moment, because the result is predetermined," he said.

Stressing that he is speaking as a lawyer and not a military man, Captain Willee says the shortcomings in the trial process were there for everyone to see from the outset. He says the Pentagon-held investigation that cleared the commission needs to be authenticated. "There are those in our community take the view that when the allegation is made against by somebody in the lion's den, you don't get the head lion to deal with it," he said. Captain Willee says he is astounded that it is taking so long to prepare a case against Hicks. "Because four years is a very, very long time for a matter into which we've all been lead to believe huge resources been poured and that's what is so disquieting about what these two young military lawyers are saying," he said.


"They just can't get access to the material that they need to prepare the prosecution, they've asked to be relieved of their duties due to the lack of professionalism - these are really very strong indicators that something is seriously wrong with the process." Setting aside what the two US prosecutors have said, he says he has ethical concerns about the use of the military commission in America. "On the grounds that it was originally presented the process is very much akin to the process we abandoned after the second World War," he said. "Because it denied people the access to evidence, to the ability to cross-examine those who made the statements that might be used against them and generally flies in the face of all the rules of fairness that we've development over the last 50 or 60 years - it's not performed." He has called for the Hicks case to be transferred to a civilian or a military court. " a civilian or a military court marshal set up in accordance with the rules that the Americans use to try their own alleged miscreants, rather than some specialised process which cuts across even those military safeguards, or appears to do so, and if it doesn't, what is the point of having it," he said.


http://www.abc.net.au/news/newsitems/200508/s1427735.htm