MARK DAVIS: David Rivkin, first, why not go through conventional legal process with these cases, with proper judges, proper rules of evidence, the type of conventions that we in democracies are used to?
DAVID RIVKIN, TERRORISM LAW EXPERT: We’re going for a process which is indeed proper to the offences that are in issue.
It’s important to understand we’re not talking about criminal offences, we’re not even talking about terrorism, we’re talking about individuals who’ve engaged in combat, had been captured as enemy combatants and very importantly are unlawful combatants which is to say participated in war without complying with the most fundamental precepts of the laws of war.
Traditionally, most types of offences have been dealt with in a military justice system. That is specifically designed to deal with them, because, again, it is appropriate for the offences we’re dealing with.
MARK DAVIS: Frank Camatta, is this ordinary procedure?
FRANK CAMATTA, DAVID HICKS’ LAWYER: Well, I wouldn’t perhaps have such a disagreement with David if it wasn’t for the fact that the American combatant was treated differently and was applied the normal sanctions of US criminal law.
MARK DAVIS: Well, let’s a little bit broader than that perhaps. Would these cases, in your understanding of Australian, British and American law, would these cases have any chance of success in – under the ordinary legal conventions?
FRANK CAMATTA: In this regime that we’re having with these commissions, we have got an entirely different creature where, although the benefit of a denial is there, it still leaves substantial inroads into the normal civil liberties of a person charged with a criminal offence.
MARK DAVIS: David Rivkin.
DAVID RIVKIN: Look, the whole essence of being an unlawful combatant is that you’re using force without privilege. So what you’ve done can either be tried in a military justice system as violations of international laws of war, or can be tried as a criminal offence, common law crime of murder, assault, battery, etc, etc, so there is some flexibility.
The whole civilian justice system, in at least the United States and I believe in Britain and Australia, operates in such a way that there are enormous burdens on the side of a prosecutor and those burdens are very difficult to satisfy in instances where you do have to protect sources and methods, where overriding concern is to prevent new attacks.
So you just approach those issues differently in the military justice system. And again it’s very important to appreciate that this is not a kangaroo court. One piece of information that might be interesting for you, if you look at the conviction rate…
MARK DAVIS: Well look, that’s exactly what it is being called, of course, and America’s reputation is on the line on this very issue. If you don’t have an evidentiary standard that can…
DAVID RIVKIN: They’re very high evidentiary standards but let’s look at the fundamental issue here.
If you look, for example, at the way military commissions operated in the aftermath of World War II, these are very professional, very ethical juries. My point is if you’re innocent, you actually have a far better shot at winning your case in a military commission.
If you’re guilty and you hope to get off for technicalities, the sort of O.J. Simpson type technicalities of the glove does not fit then it’s the wrong venue for you. But these are far from being kangaroo courts.
MARK DAVIS: But is there clarity here as to even what the charge is? I mean, what is the specific accusation that say on these six, that they’re being accused of? What is the actual event, the actual act that they’re being accused of?
DAVID RIVKIN: Fundamentally, in order for you to be processed, thank you, by military commission, you have to be an enemy combatant. What that means is you have to be a part of an organisation, al-Qa’ida or Taliban, that has been waging war against the United States without complying with a so-called four key criteria reflected in the Geneva and Hague convention and customary international law and the very fact that you join this organisation, even if you didn’t pull the trigger, let’s say even if you were captured before you got to the front line, is sufficient to punish you very harshly. Frank Camatta, did David Hicks know that he was joining an illegal organisation when he joined the Taliban?
FRANK CAMATTA: Well, when David went to Pakistan and then off to Afghanistan to join the Taliban, he was fighting the Northern Alliance with the government forces at the time.
It’s so transpired that subsequent to that, he was captured by the Northern Alliance and handed over to the American military. Hence he comes before these tribunals or these commissions.
Now, this person who it appears has – is unlikely to have committed an offence under Australian law, is now facing the commissions without the capacity, the normal capacities that he would have in the event of an ordinary criminal trial and given the extreme nature of the penalties that can fall from those commissions, albeit from a decision which has to be unanimous, nevertheless it can go down to a death penalty. Now that really concerns us here in Australia.
DAVID RIVKIN: I hear you. I do not, by the way, know the individual facts pertaining to Mr Hicks’ case and perhaps just like Mr Lindh he was a misguided young man who got into this whole enterprise without fully realising what was going on.
But look, in any prosecution, you have to balance individual equities with sort of a broad impacts on overall body policy, overall society.
It’s important for your viewers to appreciate that the dawn of the 21st century, we, the entire civilised world, not just the United States, are dealing with enormously grave threat. I would even call it an existentialist threat.
What is essential here is to this strictly affirm the norms that prohibit private individuals without sanction of states, without compliance of the laws of war, from joining organisations like Taliban and al-Qa’ida.
MARK DAVIS: Yes, but it wasn’t an offence…
FRANK CAMATTA: The Taliban was the government. The Taliban was the government.
DAVID RIVKIN: No, no, I was coming to that. It’s very important again for you all to appreciate. Taliban did not, repeat did not become a bunch of unlawful combatants, their need to give al-Qa’ida launch attack to the United States.
They have always been unlawful combatants and I will just quote one statement from Mullah Omar who was their supreme leader. The statement was to the effect that “We do not buy always Judo-Christan, international humanitarian laws of war stuff because it’s incompatible with our beliefs.”
That was an affirmation at the institutional level they had no intention to comply with the laws of war. That statement alone rendered all of them unlawful combatants.
MARK DAVIS: But David, who says it renders them unlawful combatants, the victor and the captor?
DAVID RIVKIN: International law says that.
MARK DAVIS: Well, international law is not saying that really, America is saying that, aren’t they? America is saying they’re not prisoners of war. I think the world scratched its head when you came up with unlawful combatants. No-one had heard of it for 50 years.
DAVID RIVKIN: Forgive me well again, nobody heard it for 50 years. International law does not get vitiated that easily. If you look at the Geneva convention, if you look at The Hague regulations of 1907.
If you look at modern international law going back to 16th century, but think for a second, what is the impact on an armed force if their supreme leader, if their commander in chief says “To hell with the laws of war, we are not going to comply with them.” It’s like having a corporation that says at the outset “We’re not going to comply with tax laws, we’re not going to comply with environmental laws, we’re going to do whatever we will.”
That behaviour ought to be strictly discouraged and punished and I’m very sorry for Mr Hicks but he joined the wrong bunch of people.
MARK DAVIS: But if I could just quickly, Frank, isn’t the logic of what you’re saying though that all 100,000 members of the Taliban who believed in fact they were in government, they could all be in Guantanamo Bay under your criteria?
DAVID RIVKIN: That’s indeed the logical implication of what I’m saying, that everybody who fought with Taliban and al-Qa’ida are unlawful combatants.
MARK DAVIS: Frank Camatta?
FRANK CAMATTA: But the only reason for that, David, isn’t the only reason for that because of what transpired, very sadly, but what transpired on September 11?
If in fact September 11 had not occurred, and I know that’s a big if, but if that was the case, then the Taliban fighters in your view would still be enemy combatants and it’s only that particular action that involved the United States that made these offences arise and made these tribunals come to fruition, because otherwise you’re saying these offences are being committed there every day in many countries of the world and that these people deserve to be brought before a commission.
Isn’t this really a situation of the US military saying “We’ve now got control of the situation, we’ve got these people, we’re going to put them through a process and we’re going to treat them differently to giving them the rights of a normal criminal trial like Walker Lindh”?
DAVID RIVKIN: Taliban were a bunch of unlawful combatants long before September 11. However, you’re absolutely right, because we were not in a state of war with the Taliban, we would not have, prior to September 11, had a particular interest in prosecuting.
But I want to clarify and underscore it was not the attack of September 11 that rendered them to be unlawful combatants. It was their own behaviour from the very beginning that rendered them unlawful combatants.
But we didn’t appreciate seriously what kind of threat this posed until after September 11 and the final point, you keep talking about criminal trial, don’t you appreciate the fact, and I’m sure you do, but even if they were lawful combatants, even if they were POWs, they still would not be tried in a normal civil justice system, because lawful combatants who commit individual violations of law war get trialled by court marshall which are very close to those commissions.
Some differences but traditionally, individuals involved in war never ever have been tried by civil court system because it just doesn’t fit. The difference here is the military commissions versus court marshalls.
MARK DAVIS: That’s assuming there is an individual action that is of a criminal nature, which in this case, is certainly unclear.
DAVID RIVKIN: Of course, of course. Well, but again this would be something that would be looked at the trial which, by the way would be open, I get frankly – and you have not mentioned it – but I get frankly very unhappy with references to closed proceedings.
If you look at the rules for military commissions, the proceedings would be open and I’m sure, you know, the Australian TV and other news organisations would be able to cover it. They would have defence counsel.
If in addition to their military lawyers they want to have civilian lawyers, they can ask for it. It would be a fair, transparent process and let’s reserve judgment until it takes place. It’s not going to be a kangaroo court.
MARK DAVIS: Frank Camatta, a final comment, reserve judgment until it takes place?
FRANK CAMATTA: I think it’s fair to say as far as the Hicks family’s concerned, they’re very concerned, very concerned, and that the trial by the military commissions where there are limitations, despite everything that David’s said, there are limitations on the rights of an attorney with his client, there’s limitations on the presence even of the accused during the presentation of the prosecution case, there’s a capacity for the presiding officer to have evidence in camera or to hear evidence in camera or make it only available to the detailed defence counsel without having the accused present.
There are a number of safeguards which cause us concern. It’s all very well to say “Let’s wait for the event to happen.” David is actually in the custody of the US military. He’s now going to be tried by the US military.
MARK DAVIS: We’re about to lose our satellite so gentlemen, I’ll have to leave it there. Thanks again for joining us.