The End of Justice


The US commander at Guantánamo Bay detainment camp, Colonel Mike Bumgarner, told ABC radio on Tuesday that David Hicks saw himself as ‘different’ from the other detainees and regularly demanded special privileges.

Bumgarner was responding to concerns raised by David Hicks’s American military lawyer, Major Michael Mori, about the ongoing physical and mental effects of solitary confinement on his client, and reports that Hicks had been forced to wear the same clothes for three weeks.

‘He’s not overly cooperative with guards. He’s a bit arrogant in his demeanour with us,’ Bumgarner told the ABC, saying that Hicks had refused to hand his clothes over to be washed after he was denied a second towel.

Bumgarner rejected claims that Hicks was distressed, saying he was ‘ just normally in a very ill mood.’

David Hicks was picked up in Afghanistan by Northern Alliance troops in 2001 and handed over to US armed forces in December of that year. He arrived at Guantánamo Bay in January 2002 and has now served four years and three months in detention without trial.

In August 2004, Hicks provided an affidavit to the US military that gave a disturbing account of systemic torture and unjustified detention. In it, he 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.

According to Hicks’s former lawyer, Stephen Kenny, when Hicks was moved out of temporary facilities at Guantánamo Bay, he was visited by ASIO and the Australian Federal Police who reported he was in ‘a room of his own’ and had ‘regular exercise.’ Kenny arrived at Guantánamo Bay a full two years after Hicks’s capture and detention to discover that he was in solitary confinement and had two 15-minute exercise periods a week.

Since 2001 the Australian Government has publicly maintained it is satisfied that Australian detainees at Guantánamo Bay have been ‘humanely treated.’ Yet in evidence to a Senate committee in May 2004, the Secretary of the Attorney-General’s Department, Robert Cornall, revealed that Australian officials had not even seen the cell area: ‘We have made those inquiries [about access to cells]but we have not been permitted to see them.’

After Hicks was detained, his lawyer at the time filed an application for a Writ of Habeas Corpus on his behalf effectively challenging the legality of Hicks’s imprisonment. The US Government’s initial response was that Hicks was being held pursuant to President Bush’s powers under ‘the Laws and Usage of War,’ but almost a year and a half later, Hicks was brought under Bush’s Military Order relating to the ‘Detention, Treatment, and Trial of certain Non-Citizens in The War Against Terrorism.’

Under that Order, President Bush must determine that an individual is subject to his Order, and it allows him to try that individual before a Military Commission that does not follow the United States Uniform Code of Military Justice. The Commission can allow evidence obtained by torture to be used, there is no right of appeal to any independent tribunal and the President personally makes the final decision on any trial.

Thanks to Emo.

Hicks was a soldier by anyone’s definition, so one would expect him to be entitled to the benefit of the Third Geneva Convention Relative to the Treatment of Prisoners of War. He would then have a guarantee of humane treatment covering such matters as his conditions and length of detention, what (if any) crimes he can be charged with, and the minimum standards for any trial.

The Convention also requires that both POWs and interned civilians who have not been convicted of any crimes be released ‘as soon as practicable,’ which generally means the end of the armed conflict admittedly, a difficult concept in an open-ended ‘War on Terror.’

Documents released in June 2004 after a Freedom of Information application reveal that the US did grapple with the issue of the Geneva Convention early in 2002. It took the view that since al-Qaeda is not a State, its members as Hicks is alleged to be are not legally entitled to the benefit of any of the protections of the Geneva Conventions.

In July 2003, Hicks was listed as eligible for Military Commission trial. He is accused of conspiracy to commit murder, attacking civilians and civilian objects, terrorism, attempted murder and aiding the enemy. He has pleaded not guilty to all charges.

The independent legal observer for the Law Council of Australia, Lex Lasry QC, has concluded that a fair trial for David Hicks is virtually impossible because, among other factors, the Military Commission is not independent and the charge of ‘conspiracy’ against David Hicks is so broad that it would ‘easily facilitate conviction.’

Prime Minister John Howard told 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.’

Stephen Kenny said some time ago that our Government knew that no Australian Court would convict David Hicks of the charges he faces in Guantánamo Bay. The Prime Minister’s comment confirmed that.

In a lecture at Melbourne University in November last year, former Prime Minister Malcolm Fraser pointed out that Howard’s comment 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 even before the process of the Military Commission which has been described by former prosecutors and even more recently by the United Nations as being ‘rigged’ is fully underway.

Lawyers experienced in this area have publicly stated that the Australian Government does have the ability to prosecute war crimes in an Australian court citing the decision of the High Court in the Polyukhovich case and that the Australian legal system has, and always has had, all of the tools necessary to enable the prosecution of Hicks in Australia.

The Australian Government’s response to this is encapsulated in Foreign Minister, Alexander Downer’s comments in February 2006:

Mr Hicks has been charged with very, very serious offences, very serious offences. All Australians who are charged with serious offences overseas are expected to face justice, and there is no reason why Mr Hicks should be given some special exemption from justice which other Australians who are charged with serious offences overseas have to face.

Meanwhile, in December 2005, British High Court Justice Lawrence Collins overturned the Blair Government’s refusal to grant citizenship to David Hicks, whose mother was born in England, in a judgment that is scathing of the Military Commission process, describing it as entirely unsatisfactory and potentially unjust.

The British Govern
ment appealed, but early in April this year the English Court of Appeal handed down its decision rejecting that appeal. The Blair Government will probably appeal to the House of Lords, and even if it loses again, there is no guarantee that Hicks will be granted UK citizenship or freed. According to Major Mori: ‘My understanding is the British Government has tried to get their Embassy personnel down to Guantánamo to administer the oath to David to formalise his dual nationality with the UK, and its been stopped by the US Government.’

If British citizenship does not secure his release it may still be some time before Hicks is tried before a Military Commission, and many more years before various appeals in the Federal US Courts are decided.

The Australian Government’s support of the US in this matter is completely at odds with the rest of the world’s response.

The UK Attorney-General, Lord Goldsmith, said military tribunals would not provide the kind of justice that the British Government would expect for British citizens. The UK ensured the return of all nine of its citizens held in Guantánamo Bay.

Lord Hope of Craighead, a member of the UK House of Lords, found the same: ‘some of [the practices authorised for use in Guantánamo Bay]would shock the conscience if they were ever to be authorised for use in our own country.’ (This does not sit well with Downer’s comments in May 2004 that ‘The British have investigated claims made by some former British detainees and those investigations haven’t revealed Abu Ghraib type abuses in Guantánamo Bay.’)

Even the US has seen fit to exempt their nationals from the Military Commission process. The only American detainee, John Walker Lindh, was put on trial before a US District Court in Virginia in January 2002 and later ‘pleaded guilty’ after plea bargaining with Government prosecutors in July 2002.

David Hicks remains in detention without trial in Guantánamo Bay because our Government has chosen to abandon one Australian citizen stripped of the protection of the rule of law which is the foundation of our society for some ‘greater purpose’ that the Government chooses not to disclose to us.

As Major Mori says:

Unfortunately, waiting on the Australian Government to stand up for the rights of one of its citizens in this case has taken far too long. It seems the Australian Government will take action to protect the rights of some Indonesian citizens [presumably referring to West Papuan asylum seekers], but won’t take the action to protect the rights of David Hicks.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.