The David Hicks Case

23 February 2006

By Kellie Tranter

Just as Bob Dylan sang in "Hurricane" of the failure of the American justice system, so too could Australians sing that David Hicks' case "kinda makes you feel ashamed, to live in a land where justice is a game." Skeptical?  Consider this:

In his compelling Chancellor's Human Rights Lecture at Melbourne University in November last year, former Prime Minister Malcolm Fraser repeated the comments made by John Howard on SBS World News on 11 November 2005 that "the Government is committed to the Military Commission trial.  If David Hicks was brought back to Australia he would go free.  He could not be charged under Australian law.  It is not our intention to do that."  Mr Fraser pointed out that that represents the abandonment of an Australian citizen who has not breached an Australian law; that it assumes that David Hicks is guilty; that the presumption of innocence is irrelevant; that it denies the right to a fair trial; and that the Government has turned itself into prosecutor and judge of David Hicks, before even the process of the Military Commission, which has been described by former prosecutors as being "rigged", is fully underway.  Rather different from the current AWB inquiry, where everyone is presumed innocent until the evidence implicating them unfolds.

In August 2004 David Hicks provided an Affidavit to the US military that gave a disturbing account of systemic torture and unjustified detention.  In it, Hicks describes how he has been beaten before, during and after interrogations; randomly hit over an eight hour session while blindfolded and handcuffed; struck with hands, fists and other objects (including rifle butts); had his head rammed into asphalt several times (while blindfolded); struck while under the influence of sedatives that were forced upon him by injection; forced to run in leg shackles that regularly ripped the skin off his ankles; deprived of sleep as a matter of policy; and held in a solitary cell, without being allowed to exercise in sunlight, from July 2003 until March 2004.

No doubt it was the airing of the ABC's Four Corners program in November last year that prompted the Foreign Affairs Minister Alexander Downer to give an "assurance" that Australian officials would investigate claims that David Hicks was sexually abused by American soldiers.  Mr Downer told the ABC that "our officials have had many meetings with him....and on no occasion has he ever raised such a concern...look we have had claims that he was tortured, we've had two American teams investigate those claims and they have come back with nil returns."

While Mr Downer and the Australian Government support the US in its use of Guantanamo Bay, they are in an increasing minority.  Amnesty International and UN experts are strongly opposed to it: they have recently called for the closure of Guantanamo Bay "without further delay", concluding that interrogation techniques authorised for use at the facility violate the Convention against Torture, that international human rights law is applicable to the facility, and that the US is obliged to either bring the detainees to trial under US law or release them.

Even more basically, the United Kingdom's Attorney General, Lord Goldsmith, has said that military tribunals would not provide the kind of justice that the British Government would expect for all British citizens.  The United Kingdom ensured the return of nine British citizens from Guantanamo.

Last week Hicks's lawyer, David McLeod, revealed that 267 detainees have now been released including Bin Laden's bodyguard, who acted as a decoy to allow Bin Laden to escape, and the Taliban Ambassador to Pakistan.  He also said that the German Government are currently making representations to secure the release of a Turkish man who is not even a German citizen:  when arrested, he was seeking German citizenship!

Hicks has been detained by the United States Armed forces since December 2001 and arrived at Guantanamo Bay in January 2002.  He has now served four years and two months in detention without trial.  Hicks's lawyer, David McLeod, has said that when comparing similar people in the US Court Marshall system in respect of sentences, Hicks's detention amounts to the equivalent of a head sentence under the US Court Marshall system of twelve and a half years and ("guilty" or not) if he was sentenced when he was first picked up he would now be free on parole.

The only rational and objective conclusion that can be drawn from all this is that our Government has chosen to abandon the Rule of Law in relation to one Australian citizen.  David Hicks remains in detention, without trial, in Guantanamo Bay because our Government has decided to leave him there, even though our Prime Minister says he would be walking free if he were repatriated.  Why?