Hearsay, Torture and the Attorney-General

David Hicks has been held in Guantánamo Bay for five years. He is held by the USA, our ally. Draft charges have just been announced. He has been denied the protections offered to criminal suspects in the American and Australian legal systems. He has been denied the protections guaranteed to prisoners of war by the Geneva Convention.

The Australian Government, and in particular John Howard, Philip Ruddock and Alexander Downer, bear principal responsibility for this miserable state of affairs.

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Major Mori, the US army officer assigned to legally represent Hicks, has said publicly that all Australia has to do is ask for Hicks to be repatriated and he would be. Howard admitted to his Party room on Tuesday that he could secure the release of Hicks at any time, but said that he wanted Hicks to face trial by US Military Commission first. Howard’s Kafka-esque reasoning is that Hicks has not committed any offence recognised by Australian law. The irony of that position is underscored by the fact that, if circumstances were reversed and America was seeking to extradite Hicks from Australia for trial, we would refuse to extradite him because he is not alleged to have done anything which was recognised at the time as an offence under Australian law.

The facts alleged against Hicks were set out in an indictment that was to bring him before a US Military Commission. In June 2006, the US Supreme Court found the Military Commission to be unconstitutional. None of the things alleged against Hicks involve actually harming any person or property. None of the things he is alleged to have done involve a breach of Australian, US or Afghan law at the time. That is why Australia does not want him back: he cannot be charged with an offence.

The new draft charges allege two counts: providing material support for terrorism; and attempted murder in violation of the law of war. This sounds fairly serious. After five years in captivity, I suppose they ought to sound serious. However, the details of the allegations are less impressive than the headlines.

The allegation that Hicks provided material support for terrorism hinges on the proposition that he knew in 1999 that the United States had designated al-Qaeda a foreign terrorist organisation pursuant to Section 219 of the Immigration and Nationality Act. I must confess, I missed that one myself. I heard about al-Qaeda just after September 11, 2001, just as President George W Bush was allowing bin Laden’s relatives safe passage out of America.

If that basic premise is proved, Hicks is said to be a criminal because he trained with al-Qaeda (before September 11), travelled to various parts of Afghanistan and fought with the Taliban against the Northern Alliance, the US and its allies when the US invaded Afghanistan in October 2001.

That is the context in which the second charge is made: that from September 11 to December 2001, Hicks attempted to

commit murder in violation of the law of war, by directing small arms fire, explosives, or other means and methods, with the intent to kill divers persons of the United States, Northern Alliance, or other Coalition forces, while the accused was without combatant immunity as an unlawful enemy combatant who was part of, or supporting, al Qaeda, Taliban, or associated forces.

There is no suggestion that he hit anyone. Apparently he gets no credit for the fact that the Taliban were the lawful government of Afghanistan at the time, and that the US and its allies were an invading force.

Hicks will be tried by Military Commission. The ‘trial’ will have at least three distinctive features: it will be decided by a majority vote of the officers (including one lawyer) who constitute the Military Commission; the Commission will receive hearsay evidence; it will receive evidence obtained by coercion.

Ruddock has said publicly that he is satisfied Hicks will receive a fair trial. That tells us nothing about the trial, but says a great deal about Ruddock, whose position in the Hicks affair disgraces the office of Attorney-General. It is tragic that Australia’s senior law officer is willing to countenance this cynical farce without lifting a finger to help an Australian citizen. But how much worse that he or anyone with legal training could consider that a trial based on hearsay evidence and evidence obtained by coercion could be ‘fair’ in any sense.

The Anglo-Australian legal system has excluded hearsay evidence for several centuries. Hearsay is one of those words much used by lay people but not well understood. The hearsay rule excludes evidence of statements made out of court by a person who is not a witness in the hearing, if the purpose of the evidence is to prove the truth of the statement. So, for example, prisoner X says in the witness box: ‘Prisoner Z told me he saw Hicks in Afghanistan with a rifle’ is hearsay if the fact in question is whether Hicks was in Afghanistan with a rifle. Equally, if a written deposition of prisoner Z is tendered but prisoner Z is not called to give evidence, the deposition is hearsay.

The reason for excluding hearsay evidence is simple: the truth of the statement cannot be tested unless the person who made the statement is called to give evidence and can be cross-examined.

Of course, there are exceptions to the hearsay rule. However, none of the exceptions erodes the basic principle: if the truth of the statement is in issue, the maker of the statement must be available for cross-examination. As former Australian Chief Justice Gerard Brennan once said in the High Court, ‘The admission of hearsay evidence against an accused would rob him of the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our Courts.’

The ‘judges’ of the Military Commission will not automatically admit hearsay evidence; they will have a discretion to admit it if they think the evidence is reliable. However, as Chief Justice Brennan said in the same case, ‘To admit hearsay evidence whenever the judge forms the opinion that the evidence is sufficiently reliable would be to transform the nature of a criminal trial.’

Common sense dictates that it is not possible to assess the reliability of a hearsay account of a contested fact without prejudging the contested fact: if you already believe the contested fact to be true, a hearsay statement which tends to support it will appear reliable. Conversely, if the hearsay contradicts your prejudgment, it will seem unreliable. This test for admission of hearsay leads to trial by prejudice.

It is easy to see how this will play out in practice: President Bush has already said on many occasions that the people held in Guantánamo Bay are ‘terrorists and killers and people who hate freedom’ and that they are ‘the worst of the worst.’ These comments sound very much like instructions to the judges.

Thus, the most basic protection will be denied to David Hicks. Ruddock remains unconcerned. He either does not understand the notion of a fair trial, or else he does not care whether Hicks gets a fair trial.

The Commission will also receive evidence obtained by coercion, but not evidence obtained by torture. The distinction is supposed to illustrate the USA’s moral virtue. Unfortunately, the USA has shown great flexibility in deciding where the line between coercion and torture is to be drawn. It is another of those distinctions which US Attorney-General Alberto Gonzales thinks ‘quaint.’ Perhaps Ruddock also thinks the distinction quaint, since he accepts sleep deprivation as legitimate coercion, even though it is generally recognised as
torture.

The US and Australian Governments have denied that anyone in Guantánamo Bay has been tortured. It follows that they have merely been coerced. Former US Defense Secretary Donald Rumsfeld expressly authorised 24 interrogation techniques for Guantánamo Bay that included putting prisoners in ‘stress positions,’ hooding them and interrogating them for as long as 20 hours at a time.

Interrogation in stress positions includes the practice of short-shackling. This involves the prisoner’s hands and feet being shackled in such a way that the prisoner is forced to crouch or kneel, and cannot move without the shackles cutting into the wrists and ankles. Toilet breaks are not allowed during these lengthy interrogations, with obvious results.

Thanks to Bill Leak

Prisoners in Guantánamo Bay have been subjected to waterboarding: a technique in which the prisoner is lowered head-first into water and held until they are about to drown; they are then hauled out. The Americans do not consider this to be torture, but their view of torture is informed by the US Assistant Attorney General, Jay Bybee who wrote a notorious memo in 2002 that concluded:

For an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, eg lasting for months or even years.

[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.

This flexible approach enables the US to deny the use of torture in Guantánamo Bay despite numerous accounts of conduct there which, by civilised standards, do amount to torture.

One technique available to the Americans is to torture a prisoner over a period of weeks or months and then, while merely ‘coercing’ to take a statement of the prisoner’s evidence. The prisoner cannot know whether the ‘coercion’ will escalate to frank torture again. Most people will say whatever they have to say in order to avoid continued treatment of this sort.

Evidence obtained by such methods is bound to be unreliable.

Of course, under skilful cross-examination the circumstances in which such evidence was obtained will destroy its value. But at the same time it will expose the graphic brutality of Guantánamo Bay. So here is the critical question: will the coerced witnesses be produced in the Military Commission to be cross-examined about their interrogations? If the witnesses are produced, the only possible outcome is that the value of the evidence will be reduced to zero, and America’s shame will be broadcast to the entire world.

Or, will their depositions rinsed of blood and urine be tendered to stand as unchallenged hearsay? Nothing on the face of the document will give a clue to its genesis: was it the product of a calm resolution to purge the soul by telling the truth, or were the deponent’s testicles wired to electrodes at the time? Proceeding in accordance with the rules of the Military Commission, the ‘judges’ will assess the credibility of the depositions by reference to their background knowledge: for example, that President Bush has declared Hicks a killer and a terrorist. That starting assumption will lead to the reception of evidence as credible which tends to prove the starting assumption. That’s probably how it will work.

And Australia is going along with it.

Confessions of an accused person obtained by use of coercion are inadmissible in Australia, in England and in the USA. It offends the most basic principles of our justice system that an accused person can be coerced or tricked into making a statement which is later used against them.

This is Ruddock’s idea of a fair trial, which raises another question: would Ruddock permit criminal trials in Australia to run on these lines? Would he allow hearsay and coerced statements to be used in serious criminal trials? If not, then why is he content to sacrifice Hicks to this treatment? If so, we have just seen our democracy disappear.

There was a time when only asylum seekers had to be terrified of Philip Ruddock. Now we all should be.