David Hicks is an Australian citizen who has been held at Guantanamo Bay since just after the war in Afghanistan began.
The Australian Government has been uniformly sympathetic to the "enemy combatant" detention policies of the United States, and much of the material it has provided to Australians about Mr. Hicks' case parrots US policy word-for-word. In particular, the FAQ on the Commonwealth Attorney General's website could almost have been put together by reading Donald Rumsfeld's press releases. The main reason offered by the Government for not demanding his immediate repatriation to Australia is that they don't think he's done anything illegal, and if he was repatriated they therefore wouldn't be able to put him in jail. So it's much more convenient to leave him where he is. They took exactly the same approach with Mamdouh Habib, another Australian citizen who was released without charge from Guantanamo Bay earlier this year after three years of incarceration which included "extraordinary rendition" to Egypt.
Since arriving at Gitmo he's been tortured; he's spent several years in solitary confinement; he's been endlessly interrogated; And, despite describing him as one of the "Worst of the Worst," the best attempt the military could make at charging him with a crime amounted to charges of conspiracy, attempted murder of unnammed and unidentified people, and the vague catch-all of "Aiding the Enemy." They couldn't charge him with killing anyone, threatening anyone, performing terrorist acts, or causing any actual harm to anybody. It's like, y'know, maybe he's kinda done something-or-other. Maybe. And they only managed to put together that charge sheet after three entire years of interrogation and alleged torture.
Mr. Hicks is going to be the guinea-pig for the US's Military Tribunal system for trying and convicting Guantanamo Bay inmates. He's a nice-looking white guy, so if (when) he's convicted nobody will be able to tell the US they're being mean and nasty to brown people. Then, once the media moves on to bigger and better things, the brown people can have their trials in secret...
Not really happy with how the Australian Government has essentially abandoned David Hicks, I wrote to my Attorney General (on paper, with a stamp. Remember them?). He replied back with a form-letter which referenced the aforementioned FAQ; I figure that if I'm taking the trouble to write something and the intended reader is going to give it such shallow treatment that a form-letter is their only response, I'll widen the audience. So here's my reply...
Dear Mr. Ruddock,
I write in response to your letter to me dated 31 October 2005, which was in reply to my letter to the Prime Minister on 16 August 2005, where I expressed my concern for the degree of complacency and indifference exhibited by the Commonwealth Government to the plight of Australian citizens imprisoned in foreign jurisdictions.
I thank you for the provision of the Commonwealth's Frequently Asked Questions list about Mr. Hicks, but that document raises more questions than it provides answers.
For example, in the answer to the question, "Can Mr Hicks appeal if he is convicted?" the document answers, "However, those found guilty [...] are authorised to have the sentence reviewed by the civil courts of America on writ of habeas corpus."
On November 10th 2005, the United States Senate voted 49-42 in favour of an amendment to the Defense Spending Bill from Senator Lindsey Graham. The amendment is intended to use the US Congress to overturn Rasul vs Bush, the 2004 US Supreme Court decision which found that Guantanamo Bay inmates had the right to seek habeas corpus review of their cases. This amendment seeks to create a human underclass, people who are subject to punishment by the jurisdiction of the United States of America and which have no avenue to appeal against its excesses.
In Senator Graham's floor speech in support of his amendment, he said the elimination of habeas corpus review for Guantanamo Bay inmates was required to curb "legal abuse by prisoners," and by way of example he pointed to the absurdity demonstrated by the fact that one of the prisoners has, in his opinion, abused the US legal system by filing a medical malpractice suit. What Senator Graham didn't mention is that the suit was filed by Sami Al-Laithi, an Egyptian-born Guantanamo Bay inmate who has been determined by the CSRT to not be an "enemy combatant", but who has been beaten so badly that two of his vertebrae have been broken. He filed suit because the United States military is denying him an operation which is now required to prevent him from being permanently paralyzed by injuries sustained during his interrogations. (Perhaps instead of curbing "legal abuse by prisoners," Senator Graham should be more concerned about legal abuse of prisoners)
link, link,
link
Habeas corpus review is used to challenge the legality of imprisonment and the quality of treatment received during imprisonment. It is the only avenue available to a prisoner to say, "I am being tortured by my captors, and I don't think it's legal." And, upon passing of the Defense Spending Bill, it will be denied to David Hicks.
It is important to put this into perspective. Mr. Hicks' defense is pursuing a habeas corpus petition through the US civil courts right now which questions the right of the US Government to hold him at all. When the Military Commission finds him guilty (as it almost certainly will, since its judges have been "stacked" by George Bush) he'll rely on habeas for his appeal. If he undergoes further torture or mistreatment, it is only habeas corpus which will provide him with a way to make the mistreatment stop. And the US Senate has now given its assent to an amendment which will prevent Mr. Hicks from claiming any relief whatsoever under that right.
Even if the final version of the Defense Spending Bill elides the Graham amendment, it should be obvious to anyone that the quality of justice provided to Guantanamo Bay prisoners is at the whim of US party politics. Ever since the Magna Carta was signed almost 800 years ago, western legal systems have been based on a foundation of understanding that a nation's justice system is required to be independent from politics. The US Senate's attempted interference in prisoners' access to habeas corpus makes it clear that the United States' performance is lacking against that ideal, and Mr. Hicks is, and always will be, a victim of such unjust machinations for as long as Australia permits him to remain in that environment.
Your Frequently Asked Questions document also raises questions in the part entitled, "Is Mr Hicks' detention in the United States legal?" A strict reading of the United States constitution would leave any layman and most legal experts believing that it isn't, because he hasn't been charged with a crime in a manner consistent with the US Constitution's Bill of Rights, he hasn't received a speedy trial, he doesn't have the right to have his guilt assessed by a jury of his peers, he hasn't received his choice of legal representation, he hasn't received the the benefit of a right to decline to self-incriminate during questioning, his trial will permit the presentation of "evidence" obtained by illegal methods including torture, and the panel of Military Commissioners who will be judging him, having been hand-picked by George W. Bush, are not impartial. Indeed, it was exactly that kind of governmental excess and injustice performed on Americans by the British which caused the United States to attach the Bill of Rights to its constitution over 250 years ago, so any statement which supports the view that it's now legal in 2005 is farcical on its face.
Nevertheless, noted constitutional scholar Mr. George W. Bush, who is widely regarded as a Very Clever Man, asserts that it is legal, and to date much of the world has simply taken his word for it. But the United States Supreme Court, which bears ultimate responsibility for answering that question, has not yet had an opportunity to decide; and when they've had opportunities to decide other questions raised by the US Government's policies relating to the prison at Guantanamo Bay, they've tended to come down against the Bush Administration. So I think it's somewhat premature for the Australian Government's Frequently Asked Questions list to blithely state that Mr. Hicks' detention is legal simply because Bush, Cheney and Rumsfeld say he's an enemy combatant -- The present situation is somewhat more complicated than that, and I think Australia's official position on Mr. Hicks' detention ought to reflect that reality.
The Frequently Asked Questions list also addressed Mr. Hicks' allegations of torture, by referring to various US Military inquiries which "could find no evidence" of it having occurred. I find that attitude breathtaking. There is no longer any question that the US military has engaged in systemic prisoner mistreatment. It is a matter of public record that it has occurred on a wide scale at Guantanamo Bay, Abu Ghraib, and (more recently) at dozens of secret CIA prisons in ex Soviet Gulag facilities in Eastern Europe. I find myself experiencing stunned disbelief when the Australian Government naively says to me, in writing, that they don't believe that every single last inmate at Guantanamo Bay has been tortured.
Documents obtained by the American Civil Liberties Union (ACLU) from the CIA under FOIA request include autopsy reports which show that the United States tortured prisoners to death at Guantanamo Bay.
The "Frontline" programme on the US PBS television network recently screened a documentary entitled "The Torture Question", which can be viewed in-full on their website. This documentary included numerous first-hand reports from soldiers at Guantanamo bay, including interviews with a retired general who used to run the place, confirming that prisoners have been systemically mistreated in full accordance with US Government policy formulated by Mr. Donald Rumsfeld.
Mr. Seymour Hersh, the award winning journalist who effectively ended the Vietnam War by uncovering the massacre of over 500 civilians by US forces at My Lai, has meticulously researched the history of Guantanamo Bay and Abu Ghraib, and presented extensively footnoted evidence in Chain of Command (Harper Collins, 2004) and his series of articles on the subject in The New Yorker which brought the Abu Ghraib prisoner abuse scandal into the public view for the first time. Any reader left in any doubt about the United States' policies of systemic, wide-spread prisoner abuse after consuming Mr. Hersh's accounts is behaving obstinately at best, and willfully ignorant at worst.
Leonard Pitts, in an editorial for the Buffalo News on 13 November 2005 sums up the situation wonderfully by saying:
Well, I guess that settles that.
"We do not torture,'' President Bush said on Monday.
Never mind all those torture pictures from Abu Ghraib.
Never mind all those torture stories from Guantanamo Bay.
Never mind the 2002 Justice Department memo that sought to justify torture.
Never mind reports of U.S. officials sending detainees to other countries for torture.
Never mind Dick Cheney lobbying to exempt the CIA from rules prohibiting torture.
''We do not torture,'' said the president. And that's that, right? I mean, if you can't believe the Bush administration, who can you believe? No torture. Period, end of sentence.
But . . .
What does it say to you that the claim even has to be made?
[ ... ]
"We do not torture," says the president.
I can remember when that went without saying.
Performing interrogations outside the human-rights limitations of the United States Constitution is what Guantanamo Bay is for, and anyone who states otherwise cannot do so with any kind of credibility. There is now such a mountain of undisputed evidence and reporting in the public record about US Government-sanctioned torture in these prisons that The Commonwealth Government of Australia would have to be the only organization left on the planet who has seriously considered this matter and concluded that the allegations are without merit. Really, I'm stunned.
Finally, I also want to address the answer to the question, "Can Mr Hicks be repatriated to Australia?"
It is partly for reasons described above that the Parliament of the United Kingdom took the view that the fairness of the whole Guantanamo Bay situation was so systemically compromised that they couldn't countenance the prospect of their citizens remaining there, whereupon Prime Minister Tony Blair successfully appealed to President Bush to have the UK inmates sent home.
Even though "The United States has indicated that a detainee will not be repatriated to their home country unless the home country can guarantee that the detainee will be successfully prosected," all of the UK inmates were sent home. All of them. Even "the worst of the worst" of them. Furthermore, none of them have been charged with any crimes, committed to trial, or successfully prosecuted.
Therefore it is painfully obvious from emperical observation that, despite their public utterances to the contrary, the United States will repatriate detainees even if their home country can't guarantee that they'll be successfully prosecuted.
Why has the Australian Government not arrived at the same conclusion? Why has Mr. Howard not taken the same position when discussing the matter with Mr. Bush?
To put it bluntly, the Australian Government has not tried. I have not seen one iota of reporting in the media to suggest that Mr. Howard or any part of the Australian diplomatic service have commenced discussions with the United States to have Mr. Hicks sent home even though we cannot guarantee a conviction because there is no crime with which to charge him. That approach worked for the United Kingdom, but hasn't even been attempted by Australia. It is reprehensible that the Commonwealth Government could treat an Australian citizen with such casual indifference, by not even trying to broach the subject of repatriation under the same conditions successfully used by the UK.
I am not happy with the conduct of the Australian Government on this issue. It is simply not good enough that we have accepted the notion that Mr. Hicks wasn't tortured on face-value. It is simply not good enough that we haven't campaigned with the US Government to have Mr. Hicks repatriated. It is simply not good enough that we are standing by without objection while he is subjected to an unfair and potentially unconstitutional trial, particularly when there are movements in the US Congress to close-off a habeas corpus appeal after his inevitable conviction by the Kangaroo Court. And it is simply not good enough that the Australian Government isn't shouting from the rooftops about the mere existence of Guantanamo Bay Prison in the first place.
The Australian Government should be doing more, and isn't. And the Frequently Asked Questions list on your website isn't doing anything to dissuade me from that view.
Yours sincerely,
[ signature ]
downunder newt
