Hicks in the dock: The laws of war and military justice

Last week's trial of David Hicks has triggered a cacophony of condemnation from those who impugn the Bush administration's war against Islamic radical terrorists. The US decision to prosecute Hicks before a US military commission has attracted particularly acrimonious censure. Amnesty International, among other critics, warn that a military commission "falls far short of international standards for a fair and impartial trial".

A conventional trial in a civilian courtroom would certainly do much to quell the wrath of the Bush administration's detractors. Yet a normal criminal proceeding would erect serious obstacles to the effective prosecution of the war against radical Islamist terror that could very well cost innocent lives.

The acquisition of timely, accurate intelligence is an essential prerequisite for military success against terrorist networks. And for intelligence to be acquired over time, the origins of such information must be cultivated and preserved in utter secrecy. Each time that you act on intelligence data, you run the risk that your enemies will discover your methods of listening, watching and prying.

Once the sources of intelligence material are divulged or divined, at best that leak of information from the enemy camp will be plugged, and at worst it will be used to funnel erroneous data that will mislead you. Thus, source protection is one of the most fundamental tenets of the intelligence profession and successful military operations.

Yet the mandate for intelligence source protection is diametrically opposed to the rules of evidentiary discovery that govern the conduct of criminal trials in Australia and the US. In a conventional proceeding, both the prosecution and defence are required to provide each other with all material that might conceivably be germane to the case. This, of course, is done to establish an even playing field that will ensure fairness for both sides.

But the application of discovery rules to a terrorism trial in an open courtroom would severely hobble the US Justice Department's ability to prosecute al-Qa'ida offenders. The Government would be torn between its desire to obtain a conviction and the need to preserve the integrity of its intelligence networks. Faced with an excruciating Hobson's choice between making its case in court and preventing future terrorist attacks, prosecutors would be inclined to forgo their most potent evidence.

Signal intercepts and deep-cover agent testimony would never be submitted into evidence for fear of "burning" the means and methods through which such data is gathered. Satellite photography would not be introduced in court in order to prevent al-Qa'ida from discovering exactly how good the resolution of those space-borne cameras is.

With the US Government pulling its prosecutorial punches for the sake of preserving the flow of intelligence, terrorists with blood on their hands would walk free to wreak further havoc on the innocent.

For this reason, Washington has resisted pressure to prosecute al-Qa'ida and Taliban fighters in conventional courts, choosing instead to conduct terrorism trials through the military commission process.

War, by its inherent nature, violates the most sacred tenets of civil society. On the battlefield, savagery is rewarded and soldiers receive medals for acts that would earn them prison sentences in civilian life - killing their foes.

In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush or calling down an artillery barrage on his head. Thus, it is self-defeating folly to apply peacetime legal standards to a wartime environment where they are utterly irrelevant.

The al-Qa'ida and Taliban prisoners detained at Guantanamo were captured under arms while fighting against US troops and US allies. The concepts of civilian criminal law, such as habeas corpus, do not apply to their circumstance. Moreover, these men belonged to organisations whose violations of the laws of war have rendered them ineligible for prisoner-of-war status under the Geneva Conventions. As illegal combatants who are a constituent element of the global web of Islamist terror, it is entirely appropriate these men should be tried for their crimes by military commissions.

Beyond all pragmatic considerations of intelligence source protection, the rationale for US military tribunals also rests on a fundamental principle of fairness and reciprocity. It would be absurd to allow those who violate the laws of war to benefit from the protections of the international treaties that they themselves systematically flout.