This week, David Hicks is undergoing a final round of interrogation at Guantánamo Bay before his transfer to Adelaide's Yatala Labour Prison to serve out his nine-month sentence. As part of his plea-bargain agreement, Hicks agreed to 'co-operate fully, completely and truthfully in post-trial briefings and interviews.' Hicks's Australian solicitor, David McLeod, wryly said that this final interrogation would take place 'hopefully without the torture this time.'
Five years since he was first arrested by the Northern Alliance at an Afghani taxi stand and turned over to US forces for a cool US$1000, torture remains an enduring element to the unfolding David Hicks saga.
Hicks arrived at Guantánamo Bay in January 2002 wearing the standard US sensory deprivation suit goggles, facemask, earplugs, and shackles. In Cuba, Hicks suffered a long list of physical and psychological tortures including sleep deprivation, total isolation, and being forced to endure stress positions for long periods. The effects, according to Hicks in a 2004 affidavit lodged at Guantánamo Bay, were profound. Hicks said:
The interrogation process ruled the detention camps and the lives of detainees. Co-operation with interrogators offered the only means of relief from the miserable treatment and abuse the detainees suffered. Those who failed to comply suffered abuse until they gave in.
Hicks's conclusions about torture at Guantánamo Bay are similar to the US military's own Cold War-era findings into communist methods of coercion. In 1954, a US Marine Corps inquiry into Soviet and Chinese interrogation methods found that America's Cold War enemies 'developed, and perfected, a diabolical method of torture which combines degradation, deprivation and mental harassment, and which is aimed at the destruction of the individual's will to resist.'
The panel determined that the Soviet People's Commisariat for Internal Affairs's (NKVD) methods of torture including forced standing, sleep deprivation, sexual humiliation and induced hypothermia 'can be applied to an individual continuously over such a long period of time by a skillful, ruthless and determined enemy that one of three events inevitably takes place: A. The victim's will to resist is broken, and he responds as the enemy desires. B. The victim becomes insane. C. The victim dies.'
From what is known about Hicks's incarceration, 'event A' has clearly occurred. After 15 months in Cuba, Hicks confessed that in Afghanistan:
I knew after six months that I was receiving training from al-Qaeda, who had declared war on numerous countries and peoples.
Although this confession was drawn by coercive means, military commissions at Guantánamo Bay can accept such confessions provided they were taken before 30 December 2005. This 2003 confession alone was strong enough evidence to convict Hicks on the broad retrospective charge of 'material support for terrorism.'
With this in mind, Hicks's military lawyer, Major Michael Mori deftly carved for Hicks a path out of the legal black hole that is Guantánamo Bay. In exchange for the short sentence, Hicks agreed to a one-year gag order, promised to never sue the US for damages, and disingenuously pledged he 'has never been illegally treated' in American custody.
Thanks to Bill Leak
The gag order will be difficult for the Australian Government to enforce, however. In a (relatively) jaunty performance on ABC TV's Lateline on 3 April, Attorney-General Phillip Ruddock said that the Government didn't request the gag order on Hicks. And although Australia has agreements in place for extradition it probably won't come to that in this case:
TONY JONES: Did the Government request directly or indirectly that a gag order be placed on David Hicks as part of his plea?
PHILIP RUDDOCK: Well, the direct answer is no. I was as surprised as most people to see it [We] are not about a gag in relation to people speaking about issues that they wish to comment on, even if they have committed criminal offences. But we are against them being able to profit from telling that story
TONY JONES: [Would] this Government agree to a deportation order if [Hicks] were to break the gag order and they wanted him back in Guantánamo Bay?
PHILIP RUDDOCK: Well, Tony, we have agreements, not for deportation, but for extradition and the extradition agreements depend on a number of factors. One, there has to be an assurance that a death penalty won't be sought, but there also has to be that the offence for which a person is being extradited is one for which there would be a like Australian law and I'll leave it to your imagination as to the way in which somebody seeking extradition in relation to a party for breaching a so-called gag order would be able to be delivered up through the judicial processes in Australia.
TONY JONES: Well, that is exactly the point, isn't it, and my imagination tells me it wouldn't happen and therefore the gag order means nothing and he will be able to talk.
PHILIP RUDDOCK: I suspect you're probably right.
Hicks's plea bargain secured between Mori and Susan J Crawford (the Convening Authority for the Military Commission) behind the back of Prosecutor Colonel Morris Davis should be read as a rational response to a system designed to extract, then exploit, evidence drawn from torture.
At its heart, Hicks's plea does not reflect the guilt or innocence only a fair trial could deliver. Instead, it reveals the desperation of a man anxious to come home an Australian subjected to an array of tortures once reserved for Stalin's 'enemies of the State.'
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