Habib, Hicks – the Australian undead

Habib was set free not because the Australian or US governments believed him to be innocent of crimes. Rather, his release comes because, even according to the debased legal standards that apply to a Guantanamo military commission, a conviction was not guaranteed. In addition, his continued detention brought into the antiseptic sunlight of a US federal court the practices that the US, with Australian connivance, has adopted in its fight against perceived terrorists.

Clearly, the risk that the practice of rendition the process whereby suspects are secreted by the US to a third country for a session of contract torture would be exposed to the gaze of the whole world was a risk the US administration was not prepared to run.

The Prime Minister believes that Habib’s detention was lawful, that no apology is necessary and that Habib’s release has absolutely no relevance to the continued imprisonment of David Hicks. There are good reasons why we should disagree.

Hicks is a fool who believed the Taliban to be an ideal government; yet this is not sufficient reason for the Australian government to become complicit in his rough treatment. Nor is it good reason to agree to trial by military commission a system that the British attorney-general criticised for being unable to guarantee fairness.

Setting aside the US administration, the Howard Government stands alone in believing the Guantanamo treatment of its citizens to be just or right. Its reasoning is not of law, but of expedience.

The most important reason is linked to the way the Australian Government slithered out of Iraq. It has kept Australian efforts to a calculated minimum – a position that would have elicited steady, emphatic and informal invitations from the Americans to increase our contribution. Some offers are sometimes too good to accept – and this was one of them. To the praise of strategists, Howard disentangled his government, and almost all troops, from the campaign to bring freedom to Iraq.

The view of the Americans, however, is that allies cannot pick and choose. Having rebuffed a super power once, the sensible Prime Minister takes care to give comfort in other areas. The human sacrifice made by our Prime Minister was David Hicks.

Passionately determined to defend the Australian nation, the Prime Minister and his ministers were swallowed whole by what Aristotle described as the wild beast of desire the passion that can pervert the minds of even the best of men. Events of the past three years have shown us that the rule of man unconstrained by law is the rule of the beast.

In response to emailed questions about the legal basis of Hicks’s detention, the office of the attorney-general responded in terms that should leave us sobbing:

Question A: On what basis in international law is a detainee classified as an unlawful combatant?

Answer: The US position is that an unlawful combatant is a person who takes part in armed hostilities and who is not entitled to combatant immunity.

Question B: Has the minister received departmental advice that, following principles of international law, Hicks and Habib are unlawful combatants?

Answer: The legal status of detainees in US custody is a matter for the US which is acting as the detaining power.

Question C: On what basis in international law is the US detention régime at Guantanamo Bay deemed to be lawful?

Answer: The lawfulness of the US detention regime is a matter for the US authorities.

Question D: Has the minister received departmental advice that the US detention régime at Guantanamo Bay is deemed to be lawful?

Answer: See response to question B.

‘The US’ these are the words of government servants who protect a government’s back by leaving Hicks to rot. Caged possession has become nine-tenths of the law. This is a policy devised by highly paid government lawyers and is part of a strategy to justify the passions of our leaders. The intention is to avoid telling the truth.

The Howard Government is notorious for its ability to stave off unwelcome advice. In this case, advisers realised that departmental advice, which would give the government no comfort on Hicks, needed to be kept at bay. Government lawyers and political advisers agreed, quietly and confidentially, that such advice would not be proffered. In keeping with modern Australian practice, a firewall was built between ministers and departmental experts.

Asked about the detention of Australian citizens, the attorney-general, Phillip Ruddock, has said that he had no regrets and that he felt no shame. That Ruddock is incapable of either will come as no great surprise, yet we would be wrong if we allowed him to believe that, in the treatment meted out to Australians at Guantanamo, the actions of the government were anything other than brutal, oppressive and dishonourable.

We deserve better than the passionate cowardice that has characterised our government’s behaviour to date and, although it might be inconvenient to us to admit, Hicks is entitled to better. This is not because this shabby, extra-legal treatment diminishes him alone, but because it also diminishes us. For his unlawful actions, Hicks deserves better than the travesty that is a military commission. If there is no fair trial, then a considered decency requires that he be made free.

Griffith REVIEW: The Lure of Fundamentalism (ABC Books) will be published next week.

See www.griffith.edu.au/griffithreview.

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