The Attorney-General,

The Hon Phillip Ruddock, MP,

Parliament House,

CANBERRA. ACT. 2600. May 14, 2005.

Sir,

As you are aware, Mr David Hicks, an Australian citizen, has been held by the US administration at Guantanamo Bay in Cuba for more than three years.

Mr Hicks was captured by rebel tribesmen, operating under the banner of the ‘Northern Alliance’, in December, 2001, prior to the US invasion of Afghanistan. Following the US invasion, Mr Hicks was handed-over to US military forces & rendered ‘extra-judiciously’ to Guantanamo Bay, Cuba.

Mr Hicks has been charged with various offences at the instigation of the US administration, with the current intention being that he will be ‘tried’ before the US Military Commission, set-up under the auspices a Military Order by the President of the United States, dated November 13, 2001.

The said Military Order was ostensibly issued to deal with non-US citizens who allegedly

· are members of al Qaeda

· were involved in acts of international terrorism against the United States, & / or

· knowingly harboured such terrorists

It is pertinent to note that neither the US administration nor the Australian government have alleged that Mr Hicks was or is a member of al Qaeda. Nevertheless, this fact has not stopped senior members & officials from both the US administration & the Australian government, from referring to detainees held at Guantanamo Bay as ‘terrorists’, ‘killers’ & the ‘worst of the worst’, thereby denying them their most fundamental right: the presumption of innocence.

As you are also aware, the offences allegedly committed by Mr Hicks did not exist prior to May, 2003, when they were first enunciated in ‘draft’ form.

The fact that Mr Hicks has been charged with such offences is in direct contravention of Article 99 of the Geneva Convention which expressly forbids a Detaining Power from charging & sentencing a prisoner for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was allegedly committed.

In addition, the Military Commission established by the US Department of Defence as required by the Military Order is a legal caricature, in that its structure & procedural rules fall far short of accepted standards for any judicial proceedings, including proceedings under the US criminal justice system, US Military Courts Martials or our own criminal justice system.

More particularly, the procedural rules of the US Military Commission do not provide basic legal protections for an accused, including

· the right to confront their accusers

· protection against self-incrimination

· fore-knowledge of penalties attached to offences

· protection against hearsay & evidence extracted under duress & torture

· the mandatory admission of exculpatory evidence

· the right to access all evidence &

· the right of appeal

Even the most casual observer understands that Mr Hicks has not engaged in any attack or conspired to engage in any attack against US forces or installations, as he was held prisoner by members of the Northern Alliance in Afghanistan prior to the US invasion of that country in 2002. The contention by the US administration that he is an ‘unlawful combatant’ is a contrived legal nonsense, all the more so due to the fact that Mr Hicks has never engaged in hostilities against US forces.

Mr Hicks has been held in detention by the US administration for more than three years. He has been denied his human & legal rights under the Geneva Convention, the Torture Convention & the Universal Declaration of Human Rights.

In addition, the standards of his treatment to-date & those anticipated to govern his trial by the US Military Commission are all below accepted international standards, including those otherwise applied to US citizens in identical circumstances.

The Australian government has taken no material steps to protect the legal & human rights of one of its own citizens & seems content to wait for the US government to determine his fate: this notwithstanding strong actions taken by the governments of other countries, including Great Britain, to secure the release & return of their nationals previously held under identical circumstances.

Further, the Australian government has ignored calls from eminent jurists around the world, calling for the release of detainees from Guantanamo Bay & condemning their treatment at the hands of the US administration, in contravention of international law. Such calls have been made by

· the Commonwealth Lawyers Association

· the Human Rights Institute of the International Bar Association

· Justice Richard Goldstone, Former Chief Prosecutor of the UN War Tribunal

· the President of the Swedish Bar

· the Dean of the Faculty of Advocates, Scotland

· the President of the Law Society of Northern Ireland

· the President of the Law Council of Australia

· the President of the Paris Bar

· the Chairman of the Council of the Bar of England and Wales

· the President of the Scottish Law Society

· the President of the Canadian Bar

· the President of the Law Institute of Victoria

· the President of the Law Society of England and Wales &

· Lord Steyn of the British House Of Lords

to name just a few.

Last month, the Parliamentary Assembly of the Council of Europe passed a resolution condemning the US administration for the torture of detainees at Guantanamo Bay & calling on all member states not to co-operate in the interrogation of US detainees or in the rendition of suspects to US custody.

In addition, the resolution called on the US administration to cease its practice of ‘secret detentions’ & to initiate an independent investigation of the hundreds of allegations of torture & ‘cruel, inhuman & degrading’ treatment being meted-out against detainees at Guantanamo Bay.

The resolution supported the efforts of the US in its fight against terrorism but noted that the US had ‘betrayed its own highest principles in the zeal with which it has attempted to pursue the war on terror’.

Council Member, Mr Boris Oliynik, stated: “What we see in Guantanamo has nothing to do with justice. The conditions there are medieval