Tuesday, December 05, 2006

Sunset clauses and the freeing of David Hicks

I’ve always believed the worst about David Hicks – that in full knowledge of the 9/11 attacks, he chose to stay on in Afghanistan (or return there from Pakistan, as the US alleges), to fight the US-led invasion forces, who captured him on a battle-field in November 2001. I still do, but just because I reckon he’s done the crime, it doesn’t mean that Doing The Time has become quaintly redundant – on the contrary.

Conversely, the last thing David Hicks actually needs right now is a trial; i.e. the bells’n’whistles, Rule of Law thing. Let me explain.

Plainly, the Rule of Law has been suspended in Hicks’ case, and indeed with the entirety of the Guantanamo Bay operation. This is not generally a good thing, needless to say. But such suspensions are inevitable in war. The most important check/balance on them is not some semblance of an internal oversight mechanism – e.g. Gitmo Bay prisoners one day being brought before a proper court – but that there is an outer time limit of some sort (i.e. not necessarily forward-finite) on the state of emergency during which normal rules are suspended.

Such a time limit, when set in advance, is known as a sunset clause. Here, it does not matter that the end-date may seem arbitrary. What does matter is that it is adhered to. In exceptional circumstances, the date can be extended, but such an extension should be both aggressively short-dated and unimpeachably final. There should be no possible confusion between Emergency and Normality over the longer term, then. Even if catastrophe after catastrophe piles up so as to make emergency the new normality, normality must sooner or later take this under its own wing, and deal with it as best it can under its own steam.

The rule of war, rather than law, necessarily governed the initial capture (at the very least) of David Hicks. There is a whole area of law labelled Military Law, but I don’t think it is necessary to delve too much into this. Unlike many, I have no great problem with the concept or status of “enemy combatants”, which entails both detention without trial and suspension of Geneva Convention POW protocols. Extraordinary times call for extraordinary measures - and Military Law (like the old line about "military intelligence") is best thought of as an impermeable oxymoron, whose inner workings resist explanation as much as any other hoary old joke (You have to be there to get it, I suspect).

Military Law's content matters not, in the end, because of those very three words. Times change, hopefully. But even if they don’t, time passes – the War on Terror (not to mention the war in Afghanistan) remains on foot, and seems certain to do so for decades.

It is simply the passing of time that now provides an appropriate juncture, I believe, for the immediate release of David Hicks. Let me first be clear about Hicks’ rights and wrongs – the man is safely assumed a traitor to Australia, who has little to complain about (allegations of torture aside) from the last five years. Hicks was captured on a battle-field in circumstances in which he can count himself lucky not to have been summarily executed, either as tit-for-tat war collateral, or as a more sober-minded precaution (capturing him alive was to run the risk of his body being booby-trapped).

I have no issue, then, with Hicks’ having being held for five years in Gitmo Bay. Translated to at least ten years in an Australian prison, this is a harsh sentence – and deservedly so. But on any measure, his term has now expired. Summary justice /“justice” has served its purpose well enough in Hicks’ case to date, but it is now time to return to normality. Arbitrarily so, yes, but sometimes simple “enough” has to boldly juxtapose itself alongside traditional trials with their forward-finite sentences, and just say its name – enough – over and over again, until the system finally shrugs in grudging assent – and with an uncouth, extra-judicial burp, normal systemic criminal-digestion thus resumes.

Retrospectively giving David Hicks the benefit of a sort of sunset clause, or fixed-sentence comparator, is one thing. Noting instances of anti-terror legislation sunset clauses being slyly revoked is another*. Not merely extended, note – rather, the emergency being effectively proclaimed the new and permanent normality. The latter happened in Victoria earlier this year, yet it seems little-known about, despite its manifest indefensibility – there was no objective emergency at the time, and even if their had been, a sunset clause extension would have been a sufficiently extreme measure.

* “In Victoria the 2002 anti-terror laws were subject to a sunset clause. The legislation was to expire in 2006 following a public review. During the distraction of the Commonwealth Games, the Victorian Parliament quietly repealed the requirement for both the review and the sunset clause.”

- Brian Walters SC “Power and the Rule of Law” Overland # 185 (Summer 2006) p 11

Update 4 January 2007

Hicks to face fresh charges within weeks (The Australian 4 January 2007)

Hicks trial to start 'within weeks' (The Age 29 July 2005)

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