Military Commission rules lessen Hicks chances of fair trial

Hicks commentary must focus on due processAny commentary on the charges facing David Hicks, or the facts surrounding the case, is speculative and uninformed unless the commentator has read the prosecution brief. In order to consider whether Hicks will receive due process as understood in common law jurisdiction it is necessary to analyze the Manual for Military Commissions. It is the Manual that sets out the rules of evidence and procedure under which Hicks will be tried.

The Manual states in its Executive Summary that it provides for a full and fair prosecution of alien unlawful enemy combatants, and that it affords all the judicial guarantees which are recognized as indispensable by civilized people, as should any criminal justice system.

Whist acknowledging that many of the rules of procedure and evidence in the Manual are unexceptional and indeed familiar to criminal law practitioners in Australia, the Manual fails its own standards in a number of ways.

First of all, its jurisdiction is retrospective and wide ranging. Second, an involuntary confession is admissible as evidence. Third, the hearsay rule is unfair to the Accused and dilutes the common law rules of hearsay. Fourth, important procedural rules are not predicated on principles of fairness. Finally, any custodial sentence imposed does not take into account time served by the Accused.


The issue of Jurisdiction is difficult one, as it applies to unlawful enemy combatants. The definition of unlawful enemy combatant is so wide as to include purposeful and material support of hostilities against a co-belligerent of the US. A political analyst could imaginatively construct any number of scenarios that would fit into such a definition but would be outside “the war against terror”.


Combine the question of jurisdiction with the Rule 201 of the Rules of Evidence, which allows for offences backdated to September 11, 2001 and the Military Commission in effect has unlimited and retrospective jurisdiction over any perceived opponent of the United States in foreign policy.


Rule 304 (a) of the Rules of Evidence excludes a statement obtained by use of torture, but if obtained by the product of coercion it may be admitted.

Torture is defined as an act specifically intended to inflict severe mental pain or suffering upon another within the actor’s custody or physical control. Coercion is not defined.

The military judge may admit such statements if the totality of the circumstances renders the statement reliable and possessing sufficient probative value. The interrogation methods used to obtain the statement must not amount to cruel, inhuman or degrading treatment.

In short, an involuntary statement excluding one obtained by torture may be admissible. Torture is narrowly defined and conduct outside the definition could cover a wide range of physical and mental actions. It is only when it is ruled admissible that the defence can raise the issue of voluntariness.

The oral admission section in effect allows for the spectre of 'the police verbal'. Because there is no provision for compulsory recording either by tape or video of a confession, an oral account cannot be checked and its veracity depends on the truthfulness of the interviewing official.

Any statement obtained by coercion in these circumstances does not conform to the stated standards of a fair prosecution. Such a confession would not be admissible in Australia.


Rule 803 of the Rules of Evidence allows hearsay evidence to be admitted. The hearsay rule in Australian criminal law has been diluted by its admission as relationship evidence and contextual evidence.

But the onus is on the party seeking to have the evidence admitted to justify its case. The Manual’s hearsay rules are much wider and are justified on the basis that many witnesses are likely to be foreign nationals and not amenable to process or otherwise unavailable.

Hicks commentary must focus on due processThus, if CIA agent X testifies that he heard a foreign national, not a witness, say that the accused told him that he bombed a US military base, that evidence would be admissible. The defence could not cross examine the maker of the statement and would be reduced to discrediting agent X under the test of Rule 803 – a very difficult forensic exercise – and it would carry the burden of arguing for its exclusion.

The onus is on the Accused to demonstrate unreliability in practical terms. This means any hearsay evidence, including hearsay within hearsay, would invariably be admitted. This cannot be described as a fair prosecution. The basis for the exclusion of hearsay evidence is that the original witness can have his evidence tested in court. The party seeking the admission of hearsay should bear the onus of providing cogent reasons for such admission.


In combination or singly, the procedures discussed above infringe the Accused’s right to a fair trial. An Accused person must be able to test evidence at its source; an Accused person must either personally or through his lawyer know the full extent of the evidence against him in order to meet it. The right of appeal should not be limited so that it excludes appealing against the factual basis of the conviction.


The final issue is that of sentencing. Rule 1113 (d) of the Military Commission’s Manual provides that any period of confinement begins to run from the date the sentence is adjudged. This would exclude a deduction for time served awaiting trial, a deduction normal in Australian courts. The unfairness of this is so obvious as to not need explanation. Surely a civilized people would regard such a deduction as indispensable

The progress of the case is difficult to predict. Challenges to the Manual in the US Supreme Court would seem to be inevitable. Such would be based on the questions of unfairness that I have raised. The delay that has occurred would in Australia form the basis for a compelling case for bail. That is not available to Hicks.

The prosecution case should be based on fairness, eye witness accounts and voluntary statements. A conviction obtained under the Manual for Military Commissions will be tainted and unreliable. Such an outcome does not support the Rule of Law as we know it, and the governments that have the very legitimate concern of combatting terrorism.

This is an abridged version of the orginal document. For the full version, click here.



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