The ALP is continuing its incremental approach to taking on the government over the detention of David Hicks. Yesterday, shadow attorney-general Kelvin Thomson demanded that Hicks should be released on bail, under a control order if need be, and that Australia should “Tell the US Government that a Military Commission is not a fair trial”.

The same process that has led the government to sound a note of impatience towards the Americans is having its effect on the opposition as well: fear of being “soft on terrorism” is being outweighed by a sense that community sentiment is turning in Hicks’s favour, and there may even be some votes in the issue.

Meanwhile, in today’s Age, the US chief military prosecutor has outlined the case against Hicks:

David Hicks attended basic training, the al-Qaeda basic training, (and) went back for repeated advance courses in terrorism … He knew and associated with a number of al-Qaeda senior leadership. He conducted surveillance on the US embassy and other embassies.

Leave aside the fact that no evidence is offered for these allegations, and that it’s taken five years to be told even this much of what Hicks is supposed to have done. What’s most interesting is the fact that nothing that’s alleged amounts to what would normally be regarded as a war crime.

The allegations sound serious, but fundamentally they are ordinary crimes: conspiracy, maybe attempted murder. There is no explanation for why they could not be tried in an ordinary civilian court.

We’re also told that Hicks went “back to the battlefield, back to Afghanistan” after 11 September 2001, but there’s no indication he did anything there to contravene the laws of war. Yet again, the Bush administration is stuck in its cleft stick: if this is a real “war”, then just fighting in it can’t be a crime. If it’s not, then Hicks is (at worst) a common criminal, and belongs in the courts.