Press Release re: Government Accepts Military Commissions for Guantanamo Bay Detainees

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• Govel'DDleDt Aecepts Military C~mmissjoDS for GWUltanamo Bay Detainees
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Government bll8 reached an undetStaIlding with the US concerning pIQCedures b would apply to possible militaJy commission trials ofthe two Australians ·ned at Guantanamo Bay, David Hicks and Mamdouh Habib.
lUcks was included in the list siped by President Bush aD 3 July 2003 oftbe six 4~taiDecs who have been decJ.m,d eligt"ble for trial at this stage. The US is expediting : usidenatioD ofMr Habib's case.
part ofthe Govermncnt's extensive discussions with the US oonceming militaIy Clmltm1Ssion processes, the Minister for 1ustice and Customs. Senator dJe Hon Chris . . on. visited Washington from 21 to 231uly 2003• .As a result ofthe visit, the US significant commitments on by issues. including that:
Ba...ed upon the specific: faces ofms casc, the US assured Australia it will not seek the death ponalty inMr Hicks· casco
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Australia and the US agreed to work towards putting ammgements in place to
transfer Mr Hicks to Australia. ifconvicted. to serve any penal sentence in
~,'.·,i.. Australia in accordance with Australian and US law.
, Based upon his oircumstancos, conversations between Mr Hicks and bis lawyers
Will not be monitored by the US.
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~. The Pl'Oseeutfon in MrHicks' case does not Intend to rely on evidence in its Case-­~ in-chief requiring closed proceedings from which the accused could be exolllded.
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Subject to any necessary security teStrictions, Mr Hiclca° trial will be open, the media ~iI1 be present, and Austtalian offioials may observe proceedings.
Government has since continued its high-IcveJ dialogue with tho US. As a result, :. e US bas made further important cQJnIDitments, including that
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'1 The US has asSUIed AUS1ralia that bycommitments relating to Mr Hicks would also apply to Mr Habib, should be be listed as eli81ble for trial. II iucludiDg that he would not be subject to the death penalty given the cirC1DDStanccs ofhis case.
Tho Government may malCe subinissioDS to the Review Panel which would
review either man's military oommission trial.
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• Should Mr Hicks'or Mr Habib choose to retain an Australian lawyer with appropriate security clearances 8S a consultant to their legal teams (ollowing approval of mUitaIy commission charges. that person may have direct face-to­faee communica.tions with their client
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IJ Mr Hick.a and, ifIistcd as eligible for tria:~ Mr Habib may talk to their families via ~} telephone, and two family members would be able to attend their trials.
"~ An independent legal expert sanctioned by the Australian Government may :~ observe a trial ofMr Hicks or Mr Habib.
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;pte US Department ofDcfence is in the proc:ess of drafting clarifications and
~dditional miJitary commiasion yules that will incorpomte the 8&SumDCes given to
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UNITED STAT~DEPARTMENTOF STATE
REVIEW AUT RITY: HARRY R MELONE 005-000726
UNCLASSIFIED
DATE/CASE ID~ 0 NOV 2004 200303827
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P.03/07
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~""'IoL-"'" when: approprillte, 'AU people attending militmy conunisdon trials would
r: quire appropriate background checks,

I) US commitmmIts are in additlon to rights which would be afforded to Mr Hicks
d Mr Habib uo.der milituy oosnmiasion rules. including a presumption of
•.. OCCDCe, a lltandard ofproofbcyond areasonable doubt, the right to defence
eJ free ofcharge, and the right to I'ClXlIin silent, including a guarantee that DO
~ verse inference will be drawn from th", exereise of such a rigbt.
Government has been advised that Mr Hicks or Mr Habib could not be seouted BUCccssfulIy in Australia in relation to their activities in Afghanistan 01' 'stan under Australian laws that applied at the time. The Government has also n advised that both men trained with AI Qaeda.
these oircumstanoes) we accept Mt Hicks and Mr Habib could be tried by the US, ovided that their trials arc fair and uanspvent whilo protecting security interests. ~ Government believes that military oommission processes will fulfil these criteria.
US bs assured the Govemmcnt that Mr Hicks and Mr Habib will receive no less . Yourable treatment than o1bernao-US d$inDes. We will remain in close contact . 'm the US to ensure both men are troatild fiddy and anm-npriatcly at all times.
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;~ GovernmeDt Accepts MIlitary Commissions for GuaDtanamo Bay Detainees
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~~ . ~eGovemment has reached an understanding with the US concerning procedures thiCh would apply to aoy lIlilitaty commission trials ofthe two Australians detained 4t Guantanamo Bay, David Hicb and Mamdouh Habib.
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l Hicks is included in the list ofth~ six detainees who have been declared eligib:e
11In-trial by militaIy commission. That list was signed by ;president Bush on 3 July
~03. To date, charges have not been laid against Mr Hicks. The Jayipg ofcharges
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matlel for US authorities.
l US is expediting considcl'lluon ofMr Habib's case. .AS the Government has saidtthe past, we would li\re to brlIlg """" -ty10 Mr Habib', situation. .
ifbe Government does not want either man to remain in detention without tria! any
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rnser than necessary. .
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The Government has been advised that Mr Hicks or Mr Habib could not be
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·.rosecu~ in Australia in relation to their activities in Mghanistan or Pakistan under u.stralia.n laws ttiat applied at the time..The Govcrmnent has also been advised that Hicks and Mr Habib both trained with Al Qaeda. That organisation has · ommitted and sponsored teIl'orist acts around the world. These are serious matters
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that must bo addressed.

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'::. these circumstances. the Govemm,=m accepts that Mr Hicks or Mr Habib could be : • d by the US. provided. that their trials are fair and transparent while protecting
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~ecunty mtercsm.
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~Government has held extensive discussiOD8 with the US concerning militaly ~:rmn.iSsiOD processes. As a JeSuIt, the US has made significant commitmenu on koy ~bsucs ofconcern to the GOVCInment
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1part old.: Gov.""",.,m'. Ci....mr. di&cuosiOlJ5 with tho us concerning milituy Jmmission processes, the Minister for Justice and Customs, Senat~r tho Hon Chris
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·1isOD. visited Washington tom 21 to 23 July 2003. As a result ofthe visit. the US
: ada important cOllU1litments on issues reJated to Mr Hicks' possible trial. including
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(1 • ·Based upon the specific facts ofms case, the US assured Australia it will not!i seek the death penalty in Mr Hicks' case.
1, • Australia and the US agreed ~'Worle towards putting arrangements in place to
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• Based upon bis cjrcumstanc~s. conversations between Mr Hioks and his la,IV}'CIS will not be monitored by tho US.
The prosecution in Mr Hicks' case does Dot intend to rely on evidence in its case-in-chiefrequiring olosed proceedings from which the accused could be
excluded.
Subject to any necessary security restrictions. Mr Hicks' trial will be OpeDI the media will be prescnt, aru1 Australian officials may observe proceedings.

e GoVClIlimcnt has since continued its hip-level dialoguo with the US. As a result, : e US has made further important co~itments. Theso further commitments am .. ow bein,g finalised. They mclude:
~ • The US has assured Australia that key commitments made in relation to ~.j: ~rlH!Cksl wo' UldthaalShe°apply to Mr Mabisub'~1 should he be tipcnalstedas e~gible for !ff m.a • inC Udmg t wou1d not be ~cct to the death . ty given the ] circumstances ofbis cilsa.
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• 'The Government may make submissions to the Review Panel which would
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review either man's nrllitary commission trial.
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;1· • Should Mr Hicb or Mr Habib choose to retain an Australian lawyer as a
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consultant to their l~pl teams following approval ofmilitary commission
~I charges, subject to s~tyn:quiIements, that person may havo dire~t face-to­"I
31 face communications with their cHent
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:~ • Mr Hicks and, if llsted as eligible for trial. Mr Habib may talk to ~ejrfamilies
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:~ via telephone, and two family memben would be able to attend their trials.
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~l • An independent legal expert sanQtioned by the Australian Government.. may
~ obsorvo a trial ofMr!licks or Mr Habib.
fbe US Department ofDefence is in the process ofchafting clarifications and
~ti01'l,al militaIy commissioXl rules that will incorporate the assurances given to
~u&tlaliawhere appropriate. All people attending tnilitaty cormnission trials would
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tquire appropriate background cb~ks.
jwould mnind tho honoumble membom that the rules governing the militaty
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~oIJllllis&ion trials provide fundamental guarantees for the accused. These gUarantees
in: 5imnar to those found in our own criminal pro~edurcs and in met they arc the
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~asis upon which our criminal justice systom is founded. The guarantees iDcludc: the
Jght to l~rescntationby defence counsel, a presumption of irmocencc. a standard of
iroofbeyond. a rea50nable doubt, the right to obtain witnesses and docUIlle1lts to be
.Jsed in their defence. the right to cross examine prosecution witnesses and the right to
r sUent with no adverse infeteucebeing cl!awn limn !he cxen:ise oftbat righ!.

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pe ~cused will ~:~B~D~edat all times ~ymili~defencecou~selwho have
~onslderable expertise Ul mlhtaIy law and wIll provuic a full and expert defence. An . tcCU8ed ....Yalso _iD oiWian defenc. counsel. 'To ••&UJDe that nriJilaly ­
:Lunsel ,.vill act other than in the best interests oftheir client bas no basis in (act.
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:nw rules ofevidenoo applicable in Australian criminal proceedings do DOt apply to
:~al before US military commission. Those rules of evidence also do not apply
}eforc international tribUIl81s. For example. the rule against hearsay does not apply in
:lnals before the International Criminal Tr:ibunal for the Fonner Yugoslavia (ICI'Y) .

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·~imilarlY. the rute against hearsay docs not apply in many States with highly .
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:~eloped legal systems which are based on the c;ivillaw tradition.
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~though certain roles ofevidence do not apply to B militalY commission trial,
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frOVIS1OU 9 mlWl:ll to ensure that the accused can examine and refute the evidence.
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:~.Dtedagainst him. Under the rules ofthe militmy conunlssions,the defence shall
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;1 provided with access to evidence the p~seoution intends to introduce at trial and

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'!Gnce known by the prosecution that tends to OlCCulpate the accused. In additicm.
e ~eshaIJ be able to present evidence in the accused'5 defence and cross­
~Dli'inIO each witness presented by the pro&ecution.
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Ovemlllent offiei.l. will aIIend any mnitary eommission trial ofAlI$Iralian citizens.fthis ....y. we will mom"'" the militarycommission pro=dhlga.
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'Utary commissious arc a recognised way oftlyblg penons who may lUIvo

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.··o:mmittcd offences agaiDst the laws otwar. III ths United States, militaJ)'
ommissiobS have a long histozy oruse. They were used ~ensjvclyduring the
. woan Amcricall WBZ and tho Amerioau Civil Wu. Tbey were also used mOle
tccntly during World War n. In fact, !he United Sta1es·Uni~orm Code ofMilitDy
~5tice recognises the jurisdiction ofmililSry commissions in certain cases.

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~Fmediatclyafter World War n, AustBlia CitBblishcd milittry tribuna15 to ay
rapaness prisoners of war charged with COJimntting war.crimes. Like the militily
fommissions, those txibunals did not apply the usual procedures. incluctiug the nonnal .
jPPea1 rights and rules ofevidenoe, applicable in criminal trials at the time. However,
~setrials were still fair and transparent .

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tar frolIl the sustained indifference which same oommentato1'8 have olaimed the i~ovemmenthP.s shown towards Mr Hicks and MI Habib, the Govcrmnent has always :~enconcerned·for the we1fare of Australian detainees beld in United States custody ~tQuantanamo Bay. But Australians who breach the laws of foreign countriC$ while .~ver&eas haw no au~maticright to be repatriated to Australia for trial. So long as
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cir trial iB tair and transparent. those who breach foreign laws while overseas are . iable for their offi:nces.
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·1 ;lttbCl US has assured the Go~cmtthat Mr Hicks and Mr Habib will receive no less
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~ vourable treatment before a military commission than other non-US detainees. We .. . mmain in close contact with the US to ensuR both men arc treated f",illy and
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ppropriately at all times.

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