‘The legal team for Australian terror suspect David Hicks has been granted an urgent hearing in the Federal Court in Sydney in a bid to bring him home by Christmas. 

A directions hearing has been granted on December 15 before Justice Brian Temberlin.

Attorney-General Philip Ruddock, Foreign Minister Alexander Downer and the Federal Government were named in papers filed with the Federal Court today.

In the papers, Hicks' lawyers call for the Federal Government to ask the US Government to release Hicks, saying the Commonwealth has a constitutional duty to protect him.

The lawyers also argue that Mr Ruddock and Mr Downer are in a position "effectively to order or secure the release of and repatriation to Australia of Mr Hicks".  

They say the two ministers should be ordered by the court to consider whether and how the Federal Government should protect Hicks by seeking his release and repatriation.

They should "request the authorities of the United States of America to repatriate and release the applicant from their custody in Guantanamo Bay", the papers said.

They also want the court to rule on the Federal Government's claim that Hicks cannot be charged with any offence under Australian law if freed from Guantanamo Bay.

The papers said such a claim is "an irrelevant consideration and constitutes an improper purpose" of the two ministers' discretion on deciding whether Australia should seek Hicks' release.

Hicks' lawyers want the court to make the orders using a "writ of habeas corpus", a 14th century English legal concept.

Such a writ commands prison officials holding a prisoner to bring them to court and is regarded as the highest form of protection for an individual's freedom against actions by a government.

Habeas corpus, which was developed in 1304, also allows a court to determine whether a prisoner has been imprisoned lawfully or not.

Hicks' statement of claim notes the success the Federal Government had in asking the US for the release of fellow Australian Guantanamo Bay inmate, Mamdouh Habib, in January 2005.

And it points out how US authorities agreed to requests by the British Government for the return of five of its citizens from Guantanamo Bay in February 2004 and another four in January 2005.

In both cases, Hicks' lawyers argue, the inmates were released despite there being no means by which to prosecute either Mr Habib in Australia or the British men in the United Kingdom.

"There is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government (of Australia) for the repatriation of Mr Hicks differently from the way they responded to the request by the Commonwealth Government to the repatriation of Mr Habib," the papers say.  

"There is no reason to suppose that the authorities of the United States of America would be more likely to refuse the request of the Commonwealth Government than they were in the case of the request of the United Kingdom Government for the repatriation of their respective national detainees."

Hicks' Adelaide-based lawyer David McLeod said earlier on ABC radio that he hoped to have Hicks home by Christmas.

High-profile Victorian lawyer and a member of the Australian Lawyers Alliance, Rob Stary, said the legal action was about providing Hicks with fair process.

It also was an attack on the political process, he said.

"The Government has failed to take into account relevant considerations in causing David to be repatriated back to this country in the same way that every other western country, and indeed the US, has done so in returning its civilians to its domestic territory," he said on ABC radio.

"We know that there's a lot of disquiet, for instance among the backbench of the Government, about the failure to allow David Hicks proper process."

Mr Stary said many other Australians fought in Afghanistan against the northern alliance and had since been repatriated without charge and allowed to assimilate back into the community.

"It's not a question of us making a determination as to (whether) what he's done is right or wrong, it's just a question ... of fair process," he said.

South Australian Liberal senator Allan Ferguson dismissed the claim of growing pressure inside the Coalition to bring Hicks back to Australia.

Four or five Coalition politicians put the matter directly to Prime Minister John Howard in yesterday's joint party meeting.

Senator Ferguson said that was not indicative of an increase in pressure.

"There have always been a few people in the party room that think more ought to be done to bring him home," Senator Ferguson said.

"But, no, I don't think that it's a growing concern. There are just several members of the Coalition who have always felt the same way."  

Hicks has been in custody in Guantanamo Bay, Cuba, since just after he was captured in Afghanistan in 2001 following the US invasion.

He had previously pleaded not guilty to charges of conspiracy, attempted murder and aiding the enemy.  

But following a US Supreme Court ruling in June, declaring illegal the military tribunals set up to try Hicks and other Guantanamo Bay inmates, those charges were dropped.

He is expected to face a revised form of military commission after recent moves in the US to change the laws governing their operation.

The original commission process was earlier found to be unlawful by the US Supreme Court.

Court Allows Urgent Hicks Case

and let’s not forget the other victims of illegal & inhuman torture at the hands of the bushit administration, like Jose Padilla ….

Padilla, an American citizen, has been detained for four years without formal charges, much of it in solitary confinement, and may now be unfit for trial. Padilla is now showing signs of psychological trauma, his lawyers say.

The original accusations against him - "about the dirty bomb, Al Qaeda connections and supposed plans to set off natural gas explosions in apartment buildings - appear nowhere in the indictment against him." They were "fabrications or delusions or fantasies," Time magazine's Andrew Sullivan writes. 

Now, after several years of solitary detention and reported aggressive interrogation tactics, Padilla has "turned into a mental patient," potentially making conviction against him on any grounds impossible. During questioning, his lawyers say, "he often exhibits facial tics, unusual eye movements and contortions of his body."

Sullivan writes: "Padilla, by all accounts, was a completely non-violent and docile prisoner every day of his incarceration. And yet they put him in body-manacles for four years, complete isolation and darkness, and even fitted him with night-goggles for a dental operation." (Pictures of Padilla's detention were made public on Friday.)

Last year, Time magazine reported on similar circumstances experienced by another Bush administration detainee, Mohammed al-Qahtani: "At the end of months of sleep deprivation and other forms of torture, Qahtani, according to an FBI letter, 'was evidencing behavior consistent with extreme psychological trauma (talking to non existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end).'"

and for all those willing to pursue direct action …. 

NATIONAL DAY OF ACTION
FIVE YEARS TOO LONG
BRING DAVID HOME NOW

-          Close Guantanamo prison camp

-          Stop the war on civil liberties

 

·         Sydney: SATURDAY DECEMBER 9

12 NOON @ SYDNEY TOWN HALL 

·         Adelaide: SATURDAY DECEMBER 9

11am VICTORIA SQUARE

·         Melbourne: SATURDAY DECEMBER 9

2pm FEDERATION SQUARE

·         Perth: SATURDAY DECEMBER 9

12 NOON PICA (Vigil starting Friday 8 Dec. from 1pm till noon on Dec. 9 @ WESLEY UNITING CHURCH)

·         Brisbane: SATURDAY DECEMBER 9

2pm QUEEN'S PARK (Cnr George & Elizabeth Sts.)

·         Canberra: SATURDAY DECEMBER 9 - contact Amnesty

Speakers include: Terry Hicks, Major Michael Mori, Senator Kerry Nettle, Andrew Ferguson, Agnes Chong, Lex Lasry, Rob Stary, Nicola Roxon, Mamdouh Habib, Brian Deegan & more...

wear orange, bring drums...

December 9 marks the fifth year of imprisonment for David Hicks with no chance of his release in sight. He remains in legal limbo. David, like more than 700 men and minors who have gone through the US naval base prison camp of Guantánamo, has endured physical and psychological torture.

Britain, Bahrain, Denmark, France, Jordan, Pakistan, Russia, Canada, Saudi Arabia, Spain, Sweden and even Afghanistan have successfully negotiated the release of their citizens from the hell hole of Guantánamo. 

Just a phone call from the Australian Prime Minister John Howard, or Attorney General Philip Ruddock, could mean the immediate release, repatriation and end of torture for David.

Human rights and civil liberties groups and organisations have come together to organise a National Day of Action calling for the repatriation of David Hicks and the closure of Guantánamo.

Endorsed by: Terry Hicks, Fair Go for David, Justice Action, Australian Muslim Civil Rights Advocacy Network (AMCRAN), Canterbury-Bankstown Peace Group, CFMEU, Australian Lawyers Alliance, Civil Rights Defence Melbourne, Islamic Friendship Assoc., Just Peace WA, Pennant Hills Peace Group, Western Sydney Peace Group, Research Initiative in International Activism (RIIA); Communist Party of Aust.; Progessive Labor Party; Socialist Alliance; Socialist Alternative; NSW Greens; Senator Kerry Nettle; Daryl Melham, Labor MP; Dr Tim Anderson, Civil Liberties Campaigner; Brian Brunt, PNG Human Rights Lawyer, Businessman Dick Smith...

Events being organised by: Fair Go for David, Civil Rights Defence & Liberty Victoria, Stop the War Coalition Sydney & Justice for Hicks & Habib; Just Australia; Stop the War Coalition Brisbane; & Amnesty International.

For more information & to add your endorsement & support, contact Marlene on 0401 758 871 or Anna on 0401 900 690

Or access:

www.fairgofordavid.org 
www.stopwarcoalition.org www.civilrightsdefence.org

US Senators Arlen Specter (R-PA) & Patrick Leahy (D-VA) have introduced the "Habeas Corpus Restoration Act of 2006," legislation that would reinstate federal court jurisdiction over Guantanamo detainees & other suspected enemy combatants. 

The Military Commissions Act of 2006, which President Bush signed into law in October, prevents detainees who are not U.S. citizens from challenging their detentions in civilian courts. The new bipartisan proposal would repeal two provisions that severely limit the right of a citizen to question before a judge whether his detention is legal.

Specter said Tuesday that the Military Commissions Act violates the Constitution, despite the fact that he voted for legislation. "The Constitution of the United States is explicit that habeas corpus may be suspended only in time of rebellion or invasion," Specter said on the Senate floor. "We are suffering neither of those alternatives at the present time. We have not been invaded, and there has not been a rebellion."

Leahy added, "Abolishing habeas corpus for anyone who the government thinks might have assisted enemies of the United States is unnecessary and morally wrong. It is a betrayal of the most basic values of freedom for which America stands." Sen. Chris Dodd (D-CT) earlier introduced the "Effective Terrorists Prosecution Act," which also amended the Military Commissions Act to institute a more effective process for bringing terrorists to justice.’

more details can be found at .....

The Daily Muck

from today’s sydney morning herald …..

‘Calls for David Hicks to be brought to Australia to face trial have the backing of almost three-quarters of the population, including two-thirds of Coalition voters.

A Newspoll taken this week asked 1200 people whether Mr Hicks should be returned, even though there is a possibility he may not face charges in Australia.

Seventy-one per cent thought Mr Hicks, an Adelaide-born Muslim convert, should be returned home, including 67 per cent of Liberal voters and 51 per cent of National voters. Nineteen per cent believed he should be kept in detention at Guantanamo Bay.’

Most Want Hicks To Return - Poll

‘The US President, George Bush, has scored the first victory in what is expected to be a new, drawn-out round of court battles with the Australian David Hicks and other Guantanamo Bay inmates.

A US District Court judge, James Robertson, ruled on Wednesday that the Federal Court no longer had jurisdiction to hear cases involving prisoners challenging their detention at the US military base in Cuba.

Guantanamo prisoners were stripped of their Federal Court access in October, when Mr Bush signed the controversial Military Commissions Act, Judge Robertson decided.

The ruling was quickly condemned by constitutional and human rights groups. "This is the first time in the history of this country that a court has held that a man may be held by our government in a place where no law applies," said Barbara Olshansky, the deputy legal director of the US Centre for Constitutional Rights. 

It is likely the highest court in the US, the Supreme Court, will be called on to make a final ruling on the legislation, a process that could take more than a year, leaving Mr Hicks in limbo again.’

Hicks Trial No Closer After Bush Legal Win

‘In a climate of fear, protection of human rights becomes extraordinarily difficult. It brings to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting the powerless and marginalised. In that setting, protection of human rights presents its greatest challenges.

The protection of human rights depends on a number of things. First, Parliament must exercise restraint in legislating where human rights are affected. It should recognise that human rights are a basic assumption in democratic systems, and that majoritarian rule does not justify the mistreatment of unpopular minorities.

ASIO's powers have been greatly increased since the September 11 terrorist attacks. ASIO can now hold a person incommunicado for a week, and force them to answer questions on pain of five years' jail. The person need not be suspected of any offence.

The Federal Police now have power to obtain a secret order jailing a person for up to a fortnight, without a trial and without the person having committed any offence. They can obtain a secret control order, placing a person under house arrest for up to 12 months without access to telephone or internet. In each case, the person affected by the order is not allowed to know the evidence against them. These laws betray the most fundamental assumptions of a democratic society.’

It's Time To Uphold Our Rights

elsewhere …..

‘In A savage attack, Victorian Attorney-General Rob Hulls has accused his federal counterpart of inertia, gutlessness and of selling out Guantanamo Bay detainee David Hicks for a better relationship with the US.

Unless the public objected to Hicks' treatment, federal Attorney-General Philip Ruddock would do nothing and remain "blinking and toadlike" in the face of criticism, Mr Hulls said. He said "human rights rot" had taken hold nationally while Hicks was isolated from his family and from hope.

"It's mind-boggling that Hicks has not been charged, yet has languished in conditions that are an affront to anybody else's sense of decency," Mr Hulls told a meeting of the Victorian Equal Opportunity Commission.

Mr Hulls said it was equally astonishing that while Prime Minister John Howard and Mr Ruddock did nothing, they were "happy to sell the rights of a citizen down the Potomac for the sake of an invitation to a Washington garden party". Mr Ruddock would not comment on the attack yesterday except to say "it is disappointing an attorney-general would be willing to stoop so low into personal abuse".’

Ruddock Accused Of Being Gutless & Toadlike