CCPR/C/115/D/2005/2010
and Australian officials, who had the capacity to influence judges and jurors of the Military
Commission. His status as an “enemy” engaged in “unlawful” combat was highly
prejudicial and pejorative and must have tainted the Military Commission’s perception of
him. Moreover, his long period of pretrial detention, the high level of publicity surrounding
alleged “terrorists” at Guantanamo Bay and the remote, highly militarized conditions in
which he was held conveyed the impression that he was a notorious and dangerous
criminal;
(e)
The author was not informed promptly of the nature and cause of the charges
against him. The first charges were issued only in June 2004, i.e. almost two and a half
years after his detention. They were subsequently withdrawn and new ones were brought
only in late 2006. No adequate justification was given for the delay;
(f)
Despite his requests, the author was not provided with legal representation
until 28 November 2003, when Major M.D.M. was appointed as his military defence
counsel. His United States civilian defence counsel and one foreign attorney consultant
were appointed after that. His military lawyer conceded lacking experience in the relevant
law and procedure. By contrast, the prosecution legal team had both experience and greater
resources at their disposal. The author also requested a lawyer when being interviewed in
United States custody by Australian officials in May 2002, but was told that he was not
entitled thereto.
Additional claims under articles 9 and 15
16.
Australia could have followed a course of action similar to that of the Government
of the United Kingdom of Great Britain and Northern Ireland regarding British nationals
held at Guantanamo Bay. The Government of the United Kingdom insisted to the United
States that British nationals should not be tried before United States military commissions
because of the manifest unfairness of that process. The United Kingdom thereby secured
the release of all its nationals without subjection to an unfair trial. With this precedent and
Australia enjoying a comparably close relationship as a United States ally, there is no
reason to believe that the United States would not have acceded to a similar request from
Australia for the release of the author.
17.
During the period of the author’s detention, officials of the Government of Australia
repeatedly stressed the closeness of therelationship of Australia with the United States and
the former’s capacity to secure outcomes. The Government of Australia reportedly made
various representations to the Government of the United States that sought to improve the
procedures and protections available to the author. Australia secured the release of another
Australian from Guantanamo Bay. However, Australia did not make strong protests or
representations to the Government of the United States to object to the retroactivity of the
charge against the author or the unfairness of his procedure. On the contrary, numerous
public statements by senior Australian officials expressed support for the author’s
prosecution and trial. The Government of Australia defended its difference in approach
from the United Kingdom by arguing that the author had already been charged, whereas the
repatriated British nationals had not. However, the latter had not been charged precisely due
to British objections that the trial procedures were not fair.
Claims under article 14 (3) (b) regarding the preparation of a defence
18.
The author was interrogated on numerous occasions without the presence of his
lawyer and the information gathered was later used as evidence against him in the Military
Commission proceedings.
19.
The author was only able to communicate with his lawyers when they were present
at Guantanamo Bay. He was rarely provided with the means or opportunity to communicate
16
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