you forgot the great legs...

The US has show that it will all to readily ignore the law to facilitate public relations or profits. In this case you can expect the US demand that David Hicks appear in a US court to contest the prosecution under threat of torture case and the US will simply arrest David Hicks and extend his period of exposure to enhanced interrogation techniques whilst the Australian government rolls over.
This leaves David Hicks or all other Australians the only chance of seeing any measure of justice is by suing the Australian government for complicity in the plea bargain under threat of continued ad infinitum imprisonment and torture 'er' enhanced interrogation.
The failure was by the Australian government not reviewing the case immediately David Hicks got to Australian shores and releasing him upon the basis that he was tortured by US authorities, once that was established any criminal proceedings in the US that did not include the prosecution of the torturers should have been invalidated by the Australian government.
Was David Hicks naughty, probably, was any actual act proven publicly in a court of law, absolutely not where criminal acts committed against David Hicks by US authorities certainly. Justice demands the truth and failures to adhere to the principles of law by US authorities should have led to criminal prosecution against US authorities not a forced show trial under threat of continued torture for the victim.
The law is the law.

So David was training with the taliban?

Taliban that killed and tortures innocent afghans.. what was david doing getting a sun tan?

I do not know if david is guilty of anything, but lots of people have suffered under the taliban and are still suffering, like a 14yo girl that was shot in the head for speaking out..

David was in a combat zone trained by a ruthless group called the taliban that is still killing an brutalizing people..

bit rich wanting to blame everyone else for David's own decision to fight for the taliban..

Dead on the money. They dont seem to be making much noise about Hicks' taliban brothers in arms attempting to murder a 14 yr old school girl. Guess it goes to show how pathetic moral relativism really is.

Dead on the money. They dont seem to be making much noise about Hicks' taliban brothers in arms attempting to murder a 14 yr old school girl. Guess it goes to show how pathetic moral relativism really is.

Will all due respect, both of you are completely off track. Let's just say he did fight for the Taliban (because I don't want to get in a back and forth argument about that) - what kind of punishment would be acceptable? Should he have access to a lawyer and be tried in court of law? Or should he be held in a cage smaller than a dog kennel, physically beaten and sexually abused, all in contravention of the Geneva Convention?

At the heart of the matter is whether you believe crimes should be punished by rule of law, in transparent legal proceedings, or something else. And whether people have the right to be treated as human beings with 'human rights' or something else. You both seem to fall on the side of 'something else'.

Hi Ahmed
Your point is well made and, yes, I can see that it would be a shame if someone who actively supported an oppressive, intolerant and violent regime were to escape justice "on a technicality". Perhaps on this basis we should put aside our legal principles and accept that retroactive laws, military commissions, torture and indefinite detention are all necessary and we should put our trust in governments and give them the extra powers so they can do whatever is necessary in the name of security.

And why stop at alleged terrorists? If governments also think such powers should be available to use against other elements in society, like criminal motorcycle gangs, people smugglers or drug traffickers, perhaps we should extend their powers further. This process is already underway. See the following link:
http://www.smh.com.au/opinion/political-news/law-letting-asio-detain-in-secret-belongs-in-a-police-state-20121022-281h9.html

and also a longer article by the same author available here:
http://www.nswccl.org.au/

Lots of people like to convict Hicks using their 20-20 hindsight but, loathsome as they were and are, the Taliban was the legitimate government of Afghanistan and as such, even if Hicks had done any actual "fighting" for them he would have just been performing the normal legal actions of a soldier. Hicks did not kill and torture innocent Afghans (rather ironic considering the torture he received from the USA government). Hicks didn't do any fighting for the Taliban. He was captured unarmed in the back of a truck.

"Providing material support for terrorism" seems to include being trained by terrorist organisations, whether you knew they were terrorist organisations at the time or not and whether they had been declared terrorist organisations at the time or sometime in the future. A sort of "catch-all" terminology. So if you fall in with the wrong crowd without realising then tough.

"Hicks didn't do any fighting for the Taliban."

I'll qualify that at this stage and say Hicks didn't do any fighting for the Taliban after the 11th September 2001.

He was not fighting with anyone.

He was in Afghanistan.

He did not hurt anyone, guilt by association is not a crime.

Why do you people continue the ignorant whinges.

WE are committing more heinous crimes against the victims of the taliban than Hicks could ever dream of.

Sorry Chris, your understanding is not correct.

First, Hicks did serve with the Taliban after 11 Sep 01 and, by his own admission, returned to Afghanistan after that date to do so.

Second, the precise circumstances of Hicks' capture during the war in Afghanistan are relevant to some extent but international law accords far greater weight to demonstrated allegiances overall.

For example, all German soldiers captured by the Allies in World War II were detained as PW — no matter where, how and when they were captured — because their membership of the German armed forces alone dictated their status as belligerents.

The same principles applied to foreign nationals serving with German forces. Unless they were citizens of countries at war with Germany and therefore the civil crime of treason might apply in the country concerned.

In Hicks' case his admitted allegiance to the Taliban, and perhaps also to Al Qa'eda and Laskar-e-Toiba, were the principal determinants of his status as a belligerent and consequently as a captured belligerent of some description.

In the case of David Hicks, the claim is sometimes made that “he never fired a shot”. Or that he was captured by the Northern Alliance “at a taxi stand” and later “sold to the Americans”.

As noted above, such excuses are irrelevant. His membership alone of the Taliban (at least) is what counts, not what he had done or was necessarily doing at the time he was eventually captured.

Continuing the World War II analogy, using the “never fired a shot” and “taxi stand” arguments, the same argument would not be mounted that in the case of an SS member of the Gestapo who had never fired a shot in anger, and who was later captured by the French Resistance when he was fleeing towards Switzerland, could not have been detained as a PW by the allies. Whether in uniform or not, or armed or not, such as SS member would clearly have been a PW (although also possibly guilty of war crimes for which a separate criminal trial would be necessary).

Neil James
Executive Director
Australia Defence Association

execdir@ada.asn.au
www.ada.asn.au

He did not fight with anyone, he was not charged with fighting with anyone, he was accused of guarding a tank in Kandahar.

Neil, you need to give it up.

Chris, I don't really agree that he committed a 'crime' as such. My concern is that, mid conflict, Hicks was actually released from custody. I see the retrospectivity of the laws in this regard to be a clumsy attempt at responding to the confusion/problem (?) that Non-government combatants (terrorists) confront UN signatories with.

"Hicks did serve with the Taliban after 11 Sep 01"

What does "serve" mean? He didn't fight anyone, which is what I was responding to to begin with. But even if he had, he would have been engaging in legitimate military activity, which is not illegal.

"international law accords far greater weight to demonstrated allegiances"

Being considered to belong to a legitimate army does not amount to "providing material support for terrorism".

"For example, all German soldiers captured by the Allies in World War II were detained as PW"

Yes, but that didn't make them "material supporters of terrorism", did it?

"My concern is that, mid conflict, Hicks was actually released from custody."

Not relevant to Hicks. He has no interest and never had any interest in fighting with the Taliban against Australia and the USA.

Chris, either way your attempted argument does not stack up. You keep ignoring the laws applying and their basis in humanitarian necessity and civilised behaviour.

I have not argued that belligerents in World War II were interned for anything other than their belligerent status during that war. Nor do I need to in order to explain the laws applying to the internment of David Hicks. You attempted comparison of such WWII personnel not being "material supporters of terrorism" is as irrelevant as it is absurd.

Whether David Hicks was engaged in "legitimate military activity" (as you put it), at the time of capture, or not, his subsequent detention as a captured belligerent during a war remains fully legal under LOAC. Indeed such internment is a requirement of IHL generally. It was his overall status as a belligerent that counted, not what he was doing at the precise moment of capture. Plenty of belligerents discard their arms and acoutrements when fleeing.

As with every captured belligerent in every war his situation involved both responsibilities and protections under international law. Sometimes this has worked in his favour, sometimes it has not. But he remains responsible for his choices and actions.

International law is rightly universal. It applies to everyone. Particularly the Geneva Conventions. There is no magical "get out of gaol free card" just because you are an Australian or you think your political beliefs somehow justify ignoring or contravening IHL.

Hicks has never denied serving (under arms) with the Taliban after the fully legal, UN-endorsed, US-led military intervention against the Taliban regime (because they refused to surrender al Qa-eda terroruists for trial as the UN required). The Taliban regime in Kabul, incidentally, were not recognised by the UN or the vast majority of countries as Afghanistan's government at the time (largely because of their contempt for international law). Indeed only two of some 200 countries recognised the Taliban regime.

You continue to confuse the argument about whether his subsequent criminal prosecution was lawful or not with the completely separate matter of his prior internment as a captured belligerent. No respected legal authority - including his own lawyers - shares your view.

In this journal article in 2006 we argued for his release on captured belligerent parole, rather than continued internment until the Afghanistan War ended. The article was part of the argument that saw the Australian government successfully renew its efforts with the US to resolve the Hicks dilemma. Hicks also changed his lawyers.

See http://www.ada.asn.au/assets/files/Defender/Summer2006-07/DavidHicks.pdf

"I have not argued that belligerents in World War II were interned for anything other than their belligerent status during that war. Nor do I need to in order to explain the laws applying to the internment of David Hicks."

I didn't say you did but you have not made any case about how those internments or anything else justifies any criminal conviction of Hicks. The issue is a criminal conviction of Hicks, not whether he should have been interned under reasonable conditions or not.

"You continue to confuse the argument about whether his subsequent criminal prosecution was lawful or not with the completely separate matter of his prior internment as a captured belligerent."

No, that's what you think I'm doing and I'm not. The title of this article was "Was David Hicks convicted of a ‘non-crime’?" and that is the issue I'm writing about. You seem to have taken it upon yourself to believe the argument is about something else.

I think you're wrong there,Chris. The guy was carrying out military duties, for the enemy, in the combat zone, when captured. That has to qualify him as a POW. Unfortunately, I think that the status of Taliban and AlQaeda combatants precludes them from the legal definition of a POW in the traditional sense - hence the reliance on some cobbled together definitions in the meantime. That doesn't, by any stretch of the imagination, get these people 'off the hook' for their choices and actions.

WE are committing more heinous crimes against the victims of the taliban than Hicks could ever dream of.

Evidence for your bullshit assertion , Marilyn?

He never carried out a single military duty, never fired his weapon for one simple reason, there were not soldiers there to fire on.

Drowning 100's of refugees, blowing up two countries, funding and training Detachment 88 to murder West Papuan leaders.

Enough to go on with.

"Drowning 100's of refugees" , LOL When and where did ANY Aussie or US body do this??????

Marilyn, once again continually peddling a fib, as you do, does not make it true.

Hicks has not been "accused of guarding a tank", he has long admitted it - among other things.

By his own admission, at this and other times, he served under arms with the Taliban.

You need to read the Geneva Conventions about the difference between a combatant and a non-combatant.

Now Chris, you are merely being evasive.

This discussion thread has moved on from the original title of the article, not least because of your mistaken understandings and the attempts of others to explain the full picture.

Can I suggest you read all my comments, and the extensive discussions of the laws applying to David Hicks on the ADA website (over several years), in order to gain an understanding of the complex legal situation actually applying.

Hicks' own laywers, for example, disagree with you.

Marilyn,

Your need to get a realistic perspective.

David Hicks tried to enlist in the Australian Army. Was rejected. So wanting to see action, he fought in the Balkans. An adventurer - "have gun will travel".

Why did Hicks go to Afghanistan? How did he find Al Quaeda? Importantly why did he want to? What had he to offer them? Al Quaeda would not carry deadwood. Hicks must have convinced them he would be of service; made a compelling argument.

No, you are being evasive.

"This discussion thread has moved on from the original title of the article"

I have no interest in moving this discussion thread on from the original title of the article, unlike yourself apparently.

"Hicks' own laywers, for example, disagree with you."

Pity you don't say what you're talking about. Since you apparently have moved on from the original point of the article and I have no interest in what you've moved on to, I shall simply state the conclusion of the article from which you have "moved on". If you are genuine in your "moving on" then you will have no interest in responding to this conclusion.

David Hicks is not a criminal.

Chris, to give you the benefit of the doubt one last time (ie. you are mistaken rather than just polemical or trolling).

It was you who sent us all off on this thread but now you deny it.

Marilyn, constantly repeating your fact-free mantra and resorting to personal abuse merely further weakens your claims.

Under the Geneva Conventions David Hicks was not a non-combatant in the Afghanistan War.

He has freely admitted this himself on numerous occasions, both at the time and since. No respected legal authority claims he was no a non-combatant as he served under arms with (at least) the Taliban in the war.

As a combatant (belligerent) he could and was lawfully interned after capture in that war. How he was captured and what he was doing when captured remain irrelevant as he was a self-admitted and recognised Taliban belligerent.

Continuing to deny his belligerent status under the law by repeated assertion to the contrary alone, without any understanding of the facts or the law, is simply invalid.

Whether Hicks also committed a crime or crimes under US, Australian or international law remains controversial and contested. Not least because internbational law often takes time to catch up with international practice. The same, to a lesser extent, occurs in domestic law.

Given the Burchett loophole in Australian law in 2001 he cannot be prosecuted retrospectively (but probably could if he did the same things now as he did then).

Under US law the retrospectivity of the law used to prosecute him is being challenged. Eventually the appeals will end in a US Supreme Court ruling.

Under international law there is no appetite or indeed clear jurisdiction to try him. Not least because the length of his internment as a captured belligerent may well have been longer than any prison sentence after a conviction.

He could theoretically be tried under Afghan law but there would be enormous legal and moral obstacles involved - and little practical, moral or legal-deterrent point in doing so.

But his undoubtedly lawful internment as a captured belligerent remains an entirely separate matter - legally, morally and factually - to whether his actions in Afghanistan also constituted a crime or not.

This is why the legal situation of DAvid Hicks, then and now, cannot be discussed objectively without noting this distinction.

This is also why you fail the objectivity test in your comments, both here and elsewhere.

"But his undoubtedly lawful internment as a captured belligerent remains an entirely separate matter"

"This is why the legal situation of DAvid Hicks, then and now, cannot be discussed objectively without noting this distinction."

His lawful internment as a captured belligerent does not make it necessary to note it in discussing Hicks's legal situation regarding his conviction.

He was not a supporter of terrorism and how dare you say he should have been killed, are you judge, jury and executioner and what is the Conversation thinking letting this vile crap through.

There were no cracks in the law, there was no law.

Marilyn, Hicks was a self admitted anti-semite and supporter of the Taliban and Al Qaeda. He trained with AQ and met OBL several times. He was captured with a weapon, guarding military ordnance.So what qualifies as supporting a terrorist body if not that?

"Finally, it is worth noting that Guantanamo Bay has been often inspected at random by the International Committee of the Red CRoss (ICRC) as the designated protecting power under the Third Geneva Convention. In general, the ICRC has confirmed that the detention conditions of the internees have exceeded the requirements of the Convention even though they do not qualify for prisoner-of-war status"

Where do you get this idea? The ICRC doesn't comment publicly on the conditions of prisoners of war - by necessity, because if they start mouthing off about people being held in inhumane conditions the first thing they lose is access. This also reflects the strict compliance to the idea of the Red Cross being a humanitarian organisation, not a political one.

See for example:
http://www.icrc.org/eng/resources/documents/misc/57jrk6.htm
First ICRC visit to Guantanamo Bay prison camp
18-01-2002 News Release 02/03
"In no circumstances does the ICRC comment publicly on the treatment of detainees or on conditions of detention."

Depsite the fact that most of those in Guantanmo do not meet prisoner-of-war status, they still have rights protected under the Geneva Convention - whether or not terrorists organisations abide by these documents is immaterial: the Conventions are very explicitly not conditional on reciprocation!

Neil just can't let it go can he? Hicks was not captured as a belligerent anything but if he had been he should never have been kidnapped, rendered and sent to Gitmo to languish and be tortured without charge for over 5 years.

If Australian soldiers were taken to Syria or Egypt by the Afghans or Iraqis that would be illegal and James knows it.

He is just so obsessed with the notion that Hicks is guilty and should be shot at dawn that he refuses to believe even the chief prosecutor Mo Davis who resigned over the case because he was snowed over charges that should never have been brought.

You need to just dry up now Neil, Hicks committed no crime in any country simply because when he was in Afghanistan the US still supported the taliban.

Chris,

Thank you.

Space considerations prevented me from making the same point about the ICRC's traditional reluctance to comment publicly.

However, from the beginning the US, as the detaining power under the Third Geneva Convention, has declared that it would abide by this Convention even though those detained did not qualify as prisoners-of-war.

The US Supreme Court also ruled that the captured belligerents so detained, while not PW, were entitled to protection under Common Article 3 of all four Geneva Conventions.

The ICRC has made several tight-lipped comments over the years confirming these standards are being respected overall.

Your point about the ICRC being a humanitarian organisation, not a political one, is tangential. As well as its long practical history as a protecting power since 1929, its role as the protecting power for captured belligerents is covered in articles 9-11, 73, 75, 79, 81, 100-101, 104-105, 107, 122-123, 125-126 of the (1949) Third Geneva Convention. See http://www.icrc.org/ihl.nsf/FULL/375

Neil James
Executive Director
Australia Defence Association

execdir@ada.asn.au
www.ada.asn.au

Marilyn,

You are (again) posing chalk and cheese comparisons as straw-men forays.

You again ignore the thrust and detail of an explanation based on facts.

You are both incorrect and offensive to claim that the ADA has ever sought David Hicks' execution.

You also need to grasp the differences in international law between civil crimes, war crimes and actions lawfully undertaken or not in war - and why the law treats them differently.

If Australian soldiers were illegally transferred by the then Iraqi regime, or the Taliban, to another country this would obviously be a breach of the Third Geneva Convention. Your attempted analogy is simply ridiculous. If you bother to read the Third Geneva Convention the responsibilities of a detaining power are clearly detailed there.

What you continually fail to address is that the Taliban violate international humanitarian law continually as an act of policy. Whereas the UN-endorsed International Security Assistance Force helping the Afghans bends over backwards to comnply with IHL even though our soldiers face greater dangers as a result.

It really boils down, Marilyn, to the moral and legal requirement for us to not sink to the Taliban's level of barbarism.

Finally, Hicks' own US military lawyer advised the ADA that its then discussion (see http://www.ada.asn.au/commentary/formal-comment/2006/the-vexed-legal-situation-of-david-hicks.html) was the most comprehensive in Australia (although he did not necessarily agree with all of it).

You should tackle this comprehensive paper with an open mind.

With all due respect I think your interpretation is a little rosy. Bush and Cheney were both on camera saying that prisoners would be held 'to the spirit of the Geneva Conventions' (despite actually being required to be held <em>to the letter</em>). There's plenty of evidence that they weren't: David Rose's "Guantanamo: America's War on Human Rights" would be a good place to start, as would the personal testimonies of Guantanamo prisoner's such as David Hicks.

@Chris,

how many of the Guantanamo combatants that were released have returned back to fight and kill personal and civilians in a number of different countries? Does this mean anything to you? do you think that the people that have been killed since were treated any better by the combatants?

War is not a picnic or a game of cricket where we all pat each other on the back and tickle each others .... Taliban is about imposing "sharia law" .. and Taliban fight according to their own code of rules which includes cutting peoples heads off.. wonder where that appears in the Geneva Convention?

I know it is important that we do not have a race to the bottom, but it is also important to remember these many of these fighters think they are on a mission from allah and unless you submit then you die.. Until we face the root cause of the problem, that of submission which has been waged now for 1400 years then the blood will keep flowing.

So what alternative do you propose for those captured and incarcerated at Gitmo?

Neil, you are wrong. David Hicks did not one thing wrong in any country of the world and recommending your own silly long held argument is ridiculous.

Enough already, just admit you are wrong or be among those being sued by Hicks.

Marilyn you say "David Hicks did not one thing wrong in any country of the world". What sort of hole do you have your head in? Training with the terrorists IS wrong.

What terrorists? The taliban were the government of the country at the time, propped up by Pakistan and the US and formed to keep out the current recycled murderous thugs.

Which part of Hicks committed no crime in any country don't you people understand?

I bet you also still think that the poor Iraqis accused by Downer really did throw their kids into the sea and that the AWB were just doing legal business by giving $300 million to Saddam Hussein while kids starved.

Your question could be taken two ways - what should have happened instead of Guantanamo? and what could be done now for those still in there?

I think for the former, almost anything would be preferable to a system of extraordinary rendition, torture, denying access to legal counsel and habeus corpus. They could have started by not trying to 'capture militants' by paying up to $5,000 US to impoverished Afghanis to hand people over, because 2 seconds of forethought would see that the incentive is such that anyone would be turned over with the story that 'they were fighting'. The vast majority of those who have passed through Guantanamo fit this category and never had anything to do with the Taliban or Al Qaeda.

For those people still in there, proper transparent legal proceedings in a court of law would be a start, in place of the military tribunals which are found wanting by every international legal assessment. Then I guess some form of compensation would have to be on the cards - if the US was so sure these were 'the worst of the worst' it would be the least they could do.

"how many of the Guantanamo combatants that were released have returned back to fight and kill personal and civilians in a number of different countries?"

No one knows this. Officially the various countries to which they've been handed back were asked to keep an eye on them. There seems to be news reports of 'leaked secret memos' around but I take those with a large pinch of salt. Not to mention, after being tortured, held incommunicado, and had their family member's threatened with death - as one of the US military commanders at Gitmo had said, given their treatment 'if they weren't terrorists before they probably would be now'.

Much of the rest of your comment makes no sense - very few Taliban members were ever in Guantanamo, some that were known Taliban members were actually handed back over in a deal early on in Guantanamo history. There's another five at present probably going to be released as part of peace talks. Guantanamo was never a 'Taliban prison'.

John Phillip: "Training with the terrorists IS wrong."

Hicks did not train with a terrorist organisation. Al-Qa'ida was listed by the Australian Government as a terrorist organisation on the 21st October 2002, so Hicks was not doing training (which in itself does not harm anyone) with a terrorist organisation. As Hicks' former barrister said, you could give a member of Al-Qa'ida a glass of water at the time Hicks was receiving training from Al-Qa'ida and still be convicted of providing material support to terrorism. An utterly stupid law.

@ Chris

may i offer you your own advice "You're entitled to your opinion but not your own facts"

whatever you think of the history of "Guantanamo", people are stilling dying at the hands of the Taliban.. and guess what they will continue to die.. Maybe you will feel much better when the afghans are once again under their strict sharia law when the current legitimate government is over thrown by your holy warriors..
Maybe you will feel better when the next wave of afghans arrive on boats escaping the brutality which of course is far better that “Guantanamo”
Maybe you will stand up and say whoops, sad that all those schools have been burned down? Or sad that that girl was shot in the head, better than having her throat cut..
Maybe you will just not care at all.. as you somehow believe that the “Taliban was the legitimate government of the afghans”, so you have no issue with the Taliban back in control and that is what the afghans deserve..
Sorry, but whatever point you are trying to make, seems to me to be your own personal axe to grind and you have absolutely no concern for the afghan people..

Marilyn, continually peddling a fib, as you do, does not make it true.

The US never supported the Taliban.

The Taliban were not recognised as the government of Afghanistan by the UN or the vast majority of UN members. Only two countries recognised the Taliban regime.

Nice argument there Chris. I guess you could get him off. Sure, before 21/10/02, Al Qaeda was a wonderful, philanthropic and humanitarian organisation and I'm sure young David was basket weaving or similar. Your Technically correct but sad.

"The US never supported the Taliban."

The US supported Afghan Mujahideen, from which the Taliban later sprang, until the Soviets left in 1989.

"Only two countries recognised the Taliban regime."

The Taliban took control of Afghanistan with support from Pakistan. If you have a problem with the Taliban then you must also have a problem with the legitimacy of the Pakistani government of the time.

"Al Qaeda was a wonderful, philanthropic and humanitarian organisation and I'm sure young David was basket weaving or similar."

Haar, haar. haar. So, what is it about Al-Qa'ida that would have made it obvious to Hicks that he wasn't just being given army training?

Or is your point that being given army training is a crime?

Chris, cmon. "what is it about Al-Qa'ida that would have made it obvious to Hicks that he wasn't just being given army training?" Are you serious?????

Haven't you heard of the SAS? You seem to be extremely naive.

Chris, how on earth is the SAS relevant to Hicks and Al Qaeda? I would cast the naive tag back in your direction. After all, you're the one who claims that Hicks would've been expecting "just army training' at his AQ base.

Chris your point about the Taliban and the Pakistanis is a complete non sequitur.

The legitimacy of any recognised government and UN member state is not affected by which regimes in other countries it might recognise or not recognise as the government of such countries. Even when, as in the case of the Taliban where the overwhelming majority of UN member states did not recognise the Taliban, none of them did not recognise the legitimcy of the government of Pakistan.

If you bother to read the separate accounts of their time in Afghanistan written by David Hicks, Mamdouh Habib and Joseph Thomas at least one of them has to be lying because they all accuse the other ones of being the terrorists.

Cross-referencing all three accounts objectively indicates that two of them, and probably all three, are fibbing.

What they do not say - given their prior public admissions - is also quite telling.

@Neil,

thank you for your professional feedback it offers some perspective on this whole room full of whispers where who can tell what is true anymore.

A great shame here is that people seem to be blind to the benefits that the vast majority of people in Afghanistan have from this potential freedom they now have and the great and important work our troops do there.

I would like to say whatever people suspicions are, how about we at least look at the mission of freedom and acknowledge that as the most important issue on the table.

"we owe no less to the men and women of the Australian Defence Force we send to fight Australia's wars on our behalf."

also Have you ever thought about putting up a 101 answers to common myths about:-

- America funded Osama the facts
- David Hick, the facts
- Guantanamo the facts

"Chris your point about the Taliban and the Pakistanis is a complete non sequitur."

The issue is Pakistan's material support for terrorism. The Taliban were largely founded by Pakistan's Inter-Services Intelligence (ISI) in 1994:

Shaffer, Brenda (2006). The limits of culture: Islam and foreign policy (illustrated ed.). MIT Press. p. 277. ISBN 978-0-262-69321-9.

Forsythe, David P. (2009). Encyclopedia of human rights (Volume 1 ed.). Oxford University Press. p. 2. ISBN 978-0-19-533402-9. "In 1994 the Taliban was created, funded and inspired by Pakistan"

Gardner, Hall (2007). American global strategy and the 'war on terrorism'. Ashgate. p. 59. ISBN 978-0-7546-7094-0.

Jones, Owen Bennett (2003). Pakistan: eye of the storm. Yale University Press. p. 240. ISBN 978-0-300-10147-8. "The ISI's undemocratic tendencies are not restricted to its interference in the electoral process. The organisation also played a major role in creating the Taliban movement."

Randal, Jonathan (2005). Osama: The Making of a Terrorist. I.B.Tauris. p. 26. ISBN 978-1-84511-117-5. "Pakistan had all but invented the Taliban, the so-called Koranic students"

Peiman, Hooman (2003). Falling Terrorism and Rising Conflicts. Greenwood. p. 14. ISBN 978-0-275-97857-0. "Pakistan was the main supporter of the Taliban since its military intelligence, the Inter-Services Intelligence (ISI) formed the group in 1994"

Hilali, A. Z. (2005). US-Pakistan relationship: Soviet invasion of Afghanistan. Ashgate. p. 248. ISBN 978-0-7546-4220-6.

Rumer, Boris Z. (2002). Central Asia: a gathering storm?. M.E. Sharpe. p. 103. ISBN 978-0-7656-0866-6.

Since Pakistan is a provider of material support to terrorism, Mr. James should be calling for its prosecution. Instead he is obsessed with insignificant point-scoring.

Chris,

Again you change tack when refuted and advance another staw-man argument.

My point about your non sequitur was your claim that "If you have a problem with the Taliban then you must also have a problem with the legitimacy of the Pakistani government of the time".

Whatever the Pakistani government did in creating the Taliban - as you concede was well after the Western powers had stopped supporting the anti-Soviet mujahadin - this has had no legal bearing on the legitimacy of the Pakistani government as the universally recognised government of Pakistan.

It does, of course, have a significant bearing on its behaviour as that government, but this is different to your original claim.

Any objective observer of the Afghanistan-Pakistan situation obviously has critical views of both the Taliban and its Pakistani sponsors.

Have you ever lived or worked in either country? I first lived in Pakistan in the mid 1980s at the height of the war in Afghanistan and have visited the latter during the current war. Books do not give you the full picture.

"If you bother to read the separate accounts of their time in Afghanistan written by David Hicks, Mamdouh Habib and Joseph Thomas at least one of them has to be lying because they all accuse the other ones of being the terrorists."

And what does this have to do with my points?

"how on earth is the SAS relevant to Hicks and Al Qaeda?"

So you have never noticed any similarity between SAS training and Al-Qa'ida training? As I said, you're naive.

Good. So we agree. Hicks was training to fight for AlQaeda. Took a while tyhere, Chris. If you're such a moral relativist that you think tha's ok well go hard. As I've said to Ms Shepherd, if you want to contribute 'compensation' to poor dear Davey, feel free, but please give up any idea that this country or the US owes him anything. Thanks for the chat. No point continuing as I dont hink you'll ever see sense ;) Cheers

"Many comments have also dwelled on the recent US Appeals Court decision on the military commission conviction of Salim Hamdan without appearing to realise that an earlier and higher judicial ruling concerning the same detainee by the US Supreme Court in mid 2006 reaffirmed longstanding international law about the legality and necessity under International Humanitarian Law (IHL) of interning belligerents captured in a war."

Perhaps because they have no problem with that ruling and that issue is a non-sequitur to Adam Fletcher's article.

Chris, surely there is another major logic gap in your thinking.

While anyone objective seems to have no problem agreeing with the US Supreme Court ruling in the June 2006 Hamdan decision once they are aware of it (although Marilyn Shepherd for one contiunues to wilfully ignore it), the problem is that many people with opinions on David Hicks are not aware of it.

Hence the commonplace factually incorrect claims about Davcid Hicks supposedly being "imprisoned" or "held without trial", etc.

And indeed the false assumptions behind many of the comments posted during this discussion.

This is why Adam's article cannot be discussed unless alll the facts are on the table.

Otherwise the ideological zealots on both extremes just try to smother informed discussion with sloganeering.

That is why the ADA - as the relevant independent, non-partisan, public-interest waytchdog for strategic security, defence and wider national security matters - is forced to intervene in that public interest.

Chris, its called applying critical judgement rather than blithely accepting anyone's claims.

"Many comments have also dwelled on the recent US Appeals Court decision on the military commission conviction of Salim Hamdan without appearing to realise that an earlier and higher judicial ruling concerning the same detainee by the US Supreme Court in mid 2006 reaffirmed longstanding international law about the legality and necessity under International Humanitarian Law (IHL) of interning belligerents captured in a war."

Rather ironic you complaining about a lack of logic on my part when there are a few logical problems and inadequacies with your claim. First, what do mean by "dwelled on"? Second, you will have to provide examples to show that that "dwelling on", whatever it is, has some direct relevance to not realising what the earlier ruling said about interning belligerents.

Otherwise your point is a non-sequitur.

If you read all the comments to this article (and indeed much discussion elsewhere) you will note many of them are confused, to varying degrees, as to the undoubted legality of Hicks' internment as a captured belligerent compared with the justifiably contested legaliity of his later and separate criminal trial, conviction and sentence.

This is why, at least up until his military commission trial, he was not wrongly or illegally detained for a single minute.

Although, as the ADA argued at the time, he did not necessarily have to be interned until the Afghanistan War ended (as has occurred in most previous wars). Release on captured belligerent parole was an option if he was able to satify the LOAC procedures about not renewing his belligerence and some sort of independent guarantee of this could be provided (because the Taliban could not do so as they were not a recognised international actor under international law).

They are two quite separate matters in law and moral principle but many (including yourself it seems) confuse or wrongly conflate them either accidentally or deliberately (for ideological purposes). Or otherwise you ae just being mischievous in not conceding this point recognised by all serious lawyers with a good understanding of international law.

You are surely now grasping at your own straws.

"If you read all the comments to this article (and indeed much discussion elsewhere) you will note many of them are confused, to varying degrees, as to the undoubted legality of Hicks' internment "

I'm not doubting that. The issue is whether comments on just the recent US Appeals Court decision on the military commission conviction of Salim Hamdan has any direct relevance to confused comments as to the undoubted legality of Hicks' internment.

"You are surely now grasping at your own straws."

The irony.

"Release on captured belligerent parole was an option if he was able to satify the LOAC procedures about not renewing his belligerence and some sort of independent guarantee of this could be provided"

Good advice but not something the USA government was ever going to be interested in.