Aussies see US double standard

John Walker Lindh's court appearance yesterday draws attention to the treatment of Australian David Hicks.

Within days of the Sept. 11 attacks on New York and Washington, Australia was one of the first countries to offer support for the US war against terrorism - pledging 1,500 troops to the Afghan offensive. And public opinion was solidly behind the war effort.

But the detention by US forces of Australian Taliban fighter David Hicks has provoked tensions that could fray the bilateral goodwill. It highlights what some see as a US double standard in international law.

Simply put, American John Walker Lindh now faces a civilian trial in the US. But some 400 foreign detainees - who are being held without charges in Cuba and Afghanistan - and could face US military tribunals.

Mr. Hicks is one of a handful of Westerners - including three British fighters - who fought with the Taliban and Al Qaeda.

Not only has Australia's opposition Labor Party called for Hicks, currently held at Guantanamo Bay, Cuba, to be returned home, but a Supreme Court justice has described Hicks as "a casualty" of his own government's attempt to maintain favor in Washington.

"Clearly, if it were not for our relations with the US, we would be protesting his continued imprisonment without proper trial," says Justice John Dowd, a former conservative attorney general who is also president of the Australian chapter of the International Commission of Jurists. "The Australian government is, frankly, pathetic in that, for the argument of convenience, we are letting this man be held in conditions that clearly violate established conventions on the treatment of prisoners."

The US government classifies the men as "illegal combatants," not prisoners of war, and therefore they don't have the rights laid out in the Geneva Convention.

Opposition justice spokesman Darryl Melham says the Australian government's refusal to demand consular access to its citizen compares poorly with British Foreign Secretary Jack Straw's immediate insistence that three British nationals captured with Al Qaeda should face neither a military tribunal nor the death penalty. "Jack Straw was very strong about this in a way our government has not been," says Mr. Melham. "The Americans seem to have retreated from an earlier position of the death penalty for foreigners, but we are still worried about the extent to which this guy's legal rights are being subjugated to the Australian government's shuttle diplomacy with the US."

British officials have visited the British captives at Guantanamo Bay and said they have "no complaints about their treatment," which contrasts greatly with the feelings expressed in some of the British press.

If Hicks and other foreign captives receive markedly different treatment to Walker, even though all men served the same Taliban, Melham predicts damage to the international coalition against terrorism. "You will have people saying why are different standards being applied, on the basis of nationality, for what appears to be the same offenses."

Hicks, a 26-year-old Muslim convert from Adelaide in South Australia, was captured Dec. 9 by Northern Alliance troops in Afghanistan, where he had been fighting with Taliban forces, and later handed over to the Americans. Hicks had also fought alongside ethnic Albanian Muslims in the Kosovo Liberation Army against Serbia in 1999.

Now he awaits an uncertain fate and is getting little sympathy from the Australian government.

"You have to be realistic about the nature of the potential threat that the prisoners who have been transferred to Cuba represent," says Attorney General, Darryl Williams. "They have been trained to be terrorists and to act in accordance with the objective of Al Qaeda. That makes them about as dangerous as a person can be in modern times."

Mr. Williams says "neither the US nor Australia is in a position to begin a prosecution against Hicks," acknowledging that he may not have committed any offenses under Australian law.

So far, a slight majority of Australians seem indifferent to David Hicks's fate. No opinion polls have been taken, but talk radio, a popular medium that politicians use as a barometer of national opinion, is running slightly against him, according to the media monitoring agency Rehame Australia.

But according to media analyst Kate Flanders, dissent is emerging. "You're now getting a lot of callers saying he is an Australian citizen, and Australia is not the 51st state of America," she says.

Perhaps the best indicator of the changing tone is the popular press, which a month ago labeled Hicks a traitor. This week, Sydney's Sun-Herald said he was not a traitor but "a naive, patently stupid young man who chose the wrong heroes."

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