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September 2006
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Daily Media Quotation

Thomas, Hicks Fall Victim To Trial By Tabloid Media

September 1, 2006

by Andrew Fraser - Canberra Times

Apart from the bizarre midweek happy chat in his backyard - "I reject killing flies" but "I believe in an eye for an eye" - the media has mainly shown "Jihad Jack" Thomas as a villain.

Commentary has been weighted very much in favour of the control orders placed on him after his Victorian Court of Appeal acquittal a fortnight ago.

It has come from a multitude of popular public protectors, but also from some who purport to offer a legal perspective.

The legal opinions that count, however, are likely to come into view soon.

The Australian Federal Police have successfully sought from the Federal Magistrates Court a control order, one of the principal weapons in the new armoury that the Government has implemented, in wave after wave, since the terrorism attacks in the United States five years ago.

The seeking of the order in this case is curious on a number of grounds. If its basis is what Thomas's lawyer, Rob Stary, calls "the Afghan adventure", why are the Government and the Federal Police not seeking similar orders for other Australians who have made similar tours?

Surely the reason couldn't be the media attention heaped on Thomas, spurred by the fact that he speaks out, albeit in confusing and contradictory ways?

Many have pointed out, rightly, that the allegations against Thomas are much more serious than almost anything under the criminal code.

All the more reason to ensure the prosecution was filled out to the letter of the law.

Many have said that Thomas and fellow terrorism accused David Hicks are "enemy combatants". In Hicks's case, that branding allows the United States Government, with our Government's acquiescence, to keep an Australian on track - one day - for a military commission "trial". Not a court martial. Not a normal, court hearing.

The US Supreme Court put a brake on the US executive invoking this system, devised in World War II, but that brake is one that the US legislature will soon find a way to release.

New US ambassador Robert McCallum made the case this week for the commission route, using a measure of history, plenty of legality and palpable belief that it was necessary.

He is a forceful advocate. But the Hicks and Thomas matters are no longer cases that are being conducted in a pure and open, let alone forensic, way, despite McCallum's conviction.

Hicks and Thomas are being tried in black headlines left on taxi and train seats and via big-screen images in clubs and pubs of the accuseds' heads, and their alleged training camps. Prominent often in this mix is that Hicks rocket-launcher shot, which was so ably shown by his counsel, Dan Mori, on Andrew Denton's Enough Rope, to have been cropped for complicity, not clarity. Presumption of innocence?

Hicks is once again, after the Supreme Court ruling, an uncharged Australian held in Cuba by Americans.

Thomas is an Australian who has been acquitted by the arm of his own government charged with the heavy duty of weighing his guilt on most serious matters.

The chorus of fear in the wake of that acquittal can claim there is compelling (some might well say conclusive) evidence that Thomas is someone to be watched.

There is a likelihood that, but for procedural failures on the part of the prosecution, he would be in prison now.

But those failures were found to have occurred and the Victorian Court of Appeal acted properly.

On all that we know, Thomas does deserve to be closely monitored. The power exists for that, without the need to proceed to punishment via a control order.

Indeed, the point has been made that not using control orders would allow suspects to slip back into suburban life, believing they were no longer of interest to authorities.

If they were planning attacks, wouldn't this course provide for more complete detection and lead to other, bigger, links in a terrorism chain of command?

Wouldn't it make it possible to plan a raid on the lot, interview them properly, with their lawyers present, and then put them all before court, and then in jail?

Much has been made of the special nature of the war on terror, with the need for national security said to transcend normal processes, but the system isn't broken. Thomas has obviously been misguided.

We have competent police, independent prosecutors and a much respected judiciary to determine this, with the first of those three well able and empowered to protect us.

The interventions of the executive with its control orders are unnecessary.

In 1951, in The Communist Party case, the High Court showed the executive the proper way to fight a publicly feared foe.

A High Court judgment in the Thomas case may prove no less significant.


Andrew Fraser is political correspondent.

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