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Defence team expects show trial in Breaker Morant tradition

By Michael Pelly
June 12, 2004

David Hicks will fare better than the last Australians to face a military tribunal conducted by another country.

On February 27, 1902, Harry Morant and Peter Hancock were shot by a British firing squad in Pretoria after killing 12 prisoners and a German missionary.

But "The Breaker" and his fellow lieutenant serving under the British in the Boer War were tried by their own side - Hicks is charged as an enemy combatant.

Hicks's father Terry says he believes his son will be found guilty at the US military commission in a whitewash - the same claim levelled by Morant, who said he was acting under orders.

Hicks and his fellow Australian Mamdouh Habib will serve any sentence in Australia.

The Law Council of Australia questioned whether the Guantanamo Bay detainee could receive justice from the military commission. Its president, Bob Gotterson, SC, said yesterday: "It is appalling that Mr Hicks has been confined in non-reviewable detention for 2 years and now faces trial in a system which has very serious shortcomings."

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He said military commission trials left detainees at the mercy of executive government, which had the power to keep them incarcerated even if they were acquitted or served their sentence.

There are no independent judges - any appeal is subject to the US president only - and the rules of evidence do not apply.

Hicks and other detainees have challenged the legality of their detention in the US Supreme Court and a decision is due before any military commission trial proceeds.