20 Feb 2013

Getting Away With Torture

By Kellie Tranter and Aloysia Brooks
David Hicks, Mamdouh Habib and Prisoner X: three citizens who Australian governments did not protect from torture by foreign powers. We must demand transparency of our government, write Kellie Tranter and Aloysia Brooks
In their recent report "Globalising Torture", the Open Society Justice identifies Australia as one foreign government that aids the United States in its "torture program". The report confirms, as has long been known, that diplomatic assurances of humane treatment are insufficient to prevent grave human rights violations, and that culpability for torture does not rest solely with the principal perpetrators like the United States but with all complicit governments.

The cases of Mamdouh Habib and David Hicks, and now that of Prisoner X — the Australian/Israeli Ben Zygier — confirms the view of torture prevention organisations that transparency is one of the most important steps towards the prevention and eradication of torture.

Who has been held to account in this country?

In 2011 Vivienne Thom, Inspector-General of Intelligence and Security, released her report "Inquiry into the actions of Australian government agencies in relation to the arrest and detention overseas of Mamdouh Habib from 2001 to 2005". It details the failures of our intelligence agencies, the Department of Foreign Affairs and Trade, the Australian Federal Police and the Federal Government, but makes no recommendations about clarifying whole-of-government responsibilities. The report's narrow scope also meant that it left out any reference to Habib's treatment in Guantanamo Bay. 

Respected UK human rights lawyer Gareth Peirce has said, "Guantanamo could never have perpetuated itself, never, if it had not had the endorsement of countries around the world."

Nothing illustrates this more clearly than a 2006 US embassy cable published by WikiLeaks:

"Media attention to the Hicks case follows a wave pattern over time. We are currently observing a peak.  The suicides of the three Guantanamo detainees provided an opportunity to Hicks' defense team, which has generated public antipathy to his continued detention with the assistance of sympathetic media. John Howard and his Government have taken pains to defend our actions consistently, even if it costs them short term political points."

Taking pains to defend the actions of the United States obviously required the Australian government to put to one side allegations of torture made by Hicks and his lawyers, the public testimonies by detainees released before Hicks describing their torture, leaked reports from the Intentional Committee Red Cross outlining torturous treatment of Guantanamo Bay detainees, the rejection of calls for an independent medical experts to assess Hicks' condition at Guantanamo Bay, the release of emails written by FBI agents that tell of harsh treatment against detainees at Guantanamo, the high ranking Bush Administration officials who blew the whistle, the Torture Memos, findings of the Council of Europe and more importantly, the pleas of his family and concerned Australian citizens.

Instead former Minister for Foreign Affairs Alexander Downer said that the Australian government had sought and received diplomatic assurances from the highest levels that Hicks was being treated humanely. That was of little comfort when one examined the 2005 Human Rights Watch report, "Still at Risk: Diplomatic Assurances No Safeguard Against Torture" which was reinforced by the recent "Globalising Torture" report.

For its defence, the Howard government relied on a 2004 letter and associated report from Ryan Henry, Principal Deputy Under Secretary of Defense to Michael Thawley, Ambassador to the US Embassy of Australia, stating that it found no evidence of abuse of Hicks. A 2005 US Naval Criminal Investigative Service's (NCIS) confirmed Henry's report, finding no evidence of maltreatment or abuse. 

The investigations that were ordered by the US Department of Defense into their own colleagues were described as a farce by high-ranking US officials. Colonel Lawrence Wilkerson described them as "a farce ... I know this kind of abuse happened. I've talked to people who participated in it — CIA, military and contractors."

The NCIS documents have never been released publicly by the Australian government but have been relied upon by successive governments to deny Hicks' allegations of torture. However, one of the reports, which has been viewed by one of the authors, presents a very different story to that asserted by Howard government ministers, advisers and officials.

The contents remain classified, and therefore full details cannot be disclosed at present. However, what can be said is that the report only raises more questions, and certainly does not clear any US official of any wrongdoing, contrary to the claims of the Howard and now Gillard governments.

In an affidavit, David Hicks details the beatings that took place on transit to Guantanamo, the worst of which took place in Pasni, Pakistan. He details being spat on, and kicked and hit with rifle buts. After the beatings in Pasni, Hicks was transported to the USS Pelilieu where he was interviewed by Australian officials, including the AFP and ASIO. Hicks says he then first detailed his treatment at the hands of the US and its agents. The contents of this interview have also never been made public — the transcript was not entered into evidence in the recent proceeds of crime case against Hicks that was dropped by the Commonwealth Department of Public Prosecutions due to lack of evidence that a crime was committed.

Hicks also detailed his ill-treatment and torture to Australian officials on many other occasions over the years of his detention in Guantánamo. One such occasion was during the NCIS investigation interview which was ordered in response to the photos of Abu Ghraib being released. Dan Mori, Hicks' former lawyer, has stated that "an Australian official was present, and Mr Hicks went through the issues of him being assaulted as part of the US investigation, and there was an Australian official present during the entire interview."

In 2005 Hicks met with and provided a letter to Australian consular official John McAnulty, outlining his treatment in Guantanamo. Hicks described being chained to the floor for so long that he had to urinate on himself, and the use of "noise machines" — either bladeless chainsaw engines revving constantly or loud music or sounds being sent through the camps.

After reporting these issues to McAnulty, Hicks was moved to a camp designated for reprimanding detainees; Hicks and his lawyers saw this as a punishment for raising concerns over his treatment to Australian officials. Hicks' letter also has never been released publicly.

Heavily redacted documents from Department of Foreign Affairs and Trade, obtained through a Freedom Of Information request, include a Record of Conversation between Hicks' lawyer and Downer on 19 February 2007.  Others present included Downer's then Chief of Staff Chris Kenny, and adviser Angela Macdonald.  Downer is recorded as saying:

"...he had varying degrees of worry for people held overseas....the case had progressed beyond the point where the Australian government could simply ask for Mr Hicks' return; but a plea bargain option might perhaps get him back into Australia more quickly than proceeding with a full hearing....that while lawyers might take the view that the implications of a plea bargain would be to give credence to the military commission process...surely the best thing for Mr Hicks would be to get out of Guantanamo Bay...the government's position remained that he should face charges. If a trial could be expedited or Mr Hicks accepted a plea bargain — that would be a win/win..."

Howard certainly did not allude to this "win/win" proposition when quizzed on a television program in 2012, and obviously any win/win scenario was unconcerned with natural justice or due process for Hicks. Following the recent Hamdan decision that confirmed that the charge "material support for terrorism" was not a valid war crime, Hicks has publicly stated that all he wants is for an investigation into his case.

The Australian government has a responsibility under international law to independently investigate allegations of torture made by Australian citizens being held abroad, particularly if it is in their power to have them returned to Australia. It apparently does not do so. The WikiLeaks cable makes it clear that protecting US interests is more important in Hicks' case than protecting an Australian citizen.

We must hold to account those responsible for colluding in arbitrary, unlawful, indefinite detention. We must hold to account those who are complicit in crimes against humanity even if that extends to prime ministers, ministers or ministerial advisers.  We can no longer accept that those who are accused of torture should be able to investigate themselves, nor can we accept inadequate internal reviews.

We must object to our government relying on diplomatic assurances about torture or degrading treatment if it permits the transfer of Australian citizens to foreign countries, and we must press our government to block the feeding of questions and information between intelligence services around the world where the major interrogation technique is torture. 

And for the future, we must insist that protocols are put in place to ensure that all information concerning instances of actual and alleged personal abuse or torture is made public.

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This user is a New Matilda supporter. DrGideonPolya
Posted Thursday, February 21, 2013 - 09:59

Excellent article. Any Australian Government has a fundamental obligation to protect Australians both at home and abroad from violence, deadly violence and torture.

David Hicks and Mamdouh Habib were renditioned and horribly tortured for prolonged periods by the US or its surrogates. The Howard Coalition Government failed to help these Australians and US lackey Labor (hence "the Lackey Country") continued to obscenely "punish the victims" after their release.

Solitary confinement for more than a few weeks is regarded as torture. Prolonged secret imprisonment in solitary confinement of Jewish Australian Ben Zigier by Apartheid Israel was torture. Indeed whether Ben Zigier was murdered by Zionist goons or was driven to suicide in a suicide-proof cell, it is clear that he was tortured to death by the Israelis over 10 months in 2010 - and all this evidently with the knowledge of elements of the pro-Zionist Australian government (ASIO, ASIS, DFAT and almost certainly some Labor Ministers unless Australia is in actuality a US-, Zionist- and Gestapo-ruled state). Yet the Australian Government, public servants and Jewish Australians in the know evidently said nothing for 3 years - gross betrayal of an Australian citizen by the Australian Labor Government.

DFAT had to retract its first version of the truth and is now busily engaged in writing an "improved" version. The endlessly inept, cowardly and morally compromised pro-war, pro-Zionist, US lackey Labor Government dishonestly implies that "we know nothing".

Now The Australian newspaper reports that "Attorney General Mark Dreyfus says he sees no need for a review into his department or the nation's spy agencies over their handling of the case of Australian Ben Zygier, who died in an Israeli jail."(see: http://www.theaustralian.com.au/national-affairs/mark-dreyfus-rules-out-... ).

Australia's most famous and important Jewish public figure Sir Isaac Isaacs (our first Australian-born Governor General) was dead opposed to the evil of genocidally racist Zionism: " : “The honour of Jews throughout the world demands the renunciation of political Zionism" and "The Zionist movement as a whole...now places its own unwarranted interpretation on the Balfour Declaration, and makes demands that are arousing the antagonism of the Moslem world of nearly 400 millions, thereby menacing the safety of our Empire, endangering world peace and imperiling some of the most sacred associations of the Jewish, Christian, and Moslem faiths. Besides their inherent injustice to others these demands would, I believe, seriously and detrimentally affect the general position of Jews throughout the world" (see "Jews Against Racist Zionism": https://sites.google.com/site/jewsagainstracistzionism/isaacs-isaac-sir-...).

The Australian Attorney General of the pro-Zionist Gillard Government - reportedly rejecting a review into his department or the nation's spy agencies over their handling of the case of Australian Ben Zygier, secretly tortured to death over 10 months in an Apartheid Israel prison - represents the seat of Isaacs, named after outstanding anti-racist and anti-Zionist Jewish Australian Sir Isaac Isaacs.

Outstanding anti-racist Jewish Australian writer Antony Loewenstein writes" The case of Australian and Israeli citizen Ben Zygier and his alleged suicide in an Israeli jail in December 2010 provides an instructive window into the secretive relationship between Canberra and Tel Aviv as well as the dynamics between the Zionist state and friendly Western nations... After yet another Zionist brutality emerges in the press, the public image of Israel will take another necessary hit. Once the Zygier story disappears from the headlines, the occupation of Palestinian land will continue and deepen. The Oscar-nominated documentary, The Gatekeepers, interviews six former Shin Bet heads, Israel’s internal security agency, about their work and views on Israel’s future. They’re pessimistic and argue from deep knowledge that an Israeli police state exists in the West Bank. No amount of covert missions from the likes of Ben Zygier will hide this damning reality" (see: http://newmatilda.com/2013/02/18/israels-public-image-takes-another-hit ).

Indignant anti-racist Jewish and non- Jewish Australians who reject torture and other maltreatment of Australians, Jewish Australians, Palestinians or indeed of anyone will vote 1 Green and put Labor last until Labor reverts to decent values - indeed to do otherwise in the context of a democratic Australia would be to be complicit in torture of Australians.

As that great Palestinian humanitarian Jesus said of the Good Samaritan who saved the injured and robbed Jew when fellow Jews had "passed by on the other side": "Go, and do thy likewise" (Luke, Chapter 10, verses 29-37; see Gideon Polya, "Jesus, Christmas And Palestinian Genocide:
Wonderful Humanitarian Jesus Was A Palestinian", Countercurrents, 21 December 2012: http://www.countercurrents.org/polya211212.htm).

Peace is the only way but Silence kills and Silence is complicity.

Jungarrayi
Posted Thursday, February 21, 2013 - 15:01

Good News!
When I was issued with my Australian passport in 2006, with it came a booklet 'Hints for Australian Travellers'. At the front of the booklet was a 'Message from the Minister'.
The second paragraph: "I believe strongly that the Australian Government has a responsibility to assist- to the extent that we can-Australians in trouble oversesas...."
At the time I wrote a short letter to the editor of an Alice Springs paper "Good news for David Hicks" and then quoted Alexander Downer.

Nothing much has changed since then. Neither has my cynicism.

Letter to the Editor:
"Good news for Julian Assange....."
Frank

James-ONeill
Posted Thursday, February 21, 2013 - 17:20

James O'Neill
I agree that this is an excellent article. The authors (and NM) deserve credit for shedding light on an area of Australian foreign policy where there is a clear preference by successive governments not to allow too close a scrutiny of exactly what agreements have been made with the US. Hence for example the refusal to release key documents that the authors note. The government was also keen to settle the Habib case and the ill-conceived proceeds of crime case against Hicks. Had both cases gone to trial then the government would have had to comply with the obligations of litigants to disclose all relevant material. That is clearly something they are anxious to avoid. A number of cases in the UK jurisdiction have similarly settled rapidly when the courts insisted on the Crown disclosing key documents.

But there is more to Australia's complicity in US torture than the cases of Habib and Hicks. As the authors note, the recent report on "Globalising Torture" names Australia as a country complicit in the so-called rendition practices of the US government. That is a report about which there has been a stunning silence in the Australian mainstream media.

There is also the fact that Australia was a party to an agreement with the US and UK about what was to happen to prisoners taken by those countries armed forces in Iraq. They were to be handed over to the Americans. Only the terminally naive did not understand that those persons thus handed over would be "rendered" and tortured. In Rahmatullah v Secretary of State (2012) the UK Supreme Court unanimously agreed that that US was in breach of the Geneva Accords. (The case is discussed in the February 2013 issue of Hearsay, the Queensland Bar Associations electronic journal).

It is a settled principle of criminal law that he/she who aids or abets the principal perpetrator of the crime is equally culpable. One of the outstanding issues that needs to be addressed, in addition to the points made by Aloysia and Kellie, is the culpability of John Howard, his cabinet and their successors in the ongoing illegal participation in US wars, of which Afghanistan is only the current example.

Jungarrayi
Posted Thursday, February 21, 2013 - 19:03

John Pilger in his acceptance speech of the Sydney Peace Prize (2010?)(readily 'findable' on Youtube- and well worth your while if you have the time) goes back a bit further than James O'Neill by invoking Robert Menzies' culpability vis a vis Vietnam.
The matters dealt with in this (excellent) article fall within John Pilgers recurring theme : "The Great Australian Silence"
Frank

pwinwood
Posted Thursday, February 21, 2013 - 19:20

Merlinau
If the Australia government is prepared to 'sell the Australia soul' and moral authority to the USA in order to gain what paltry value that may have, they certainly didn't/don't do so with my approval as a voter.
As to the value of such an act, who remembers the outcome of the supposed 'Free Trade' agreements with the USA a few years back.
What did we get out of that? Bugger all except the US wanted to get into the market selling drugs to the PBS system as I recall.
Agricultural product benefits? What a joke.
The US wants to do whatever it likes whenever it likes, to whomsoever it likes, if it thinks it is in its interest.
Australia AND the UK are up a wattle if they think it will ever be any different.
Could anyone REALLY see the US sending a task force to our aid if Indonesia decided to 'have a go' at Australia? No way, there's no advantage to them to do ANYTHING for us so why do we go on with this slavish 1940's based abeysance to them for sending a load of not very good troops to Australia, who were uniformly useless fighting up in the Islands?

grumpyoldman2
Posted Thursday, February 21, 2013 - 22:04

Isn't the underlying question really,"What did the victim discuss with ASIO that prompted this extreme attempt by the Jews to ensure his silence"?

ASIO obviously have the answer but like the dog burying a bone are busily rewriting and sanitising the truth.

Surely it is time for our political leaders to show a little backbone and bring the ASIO Director before parliament and demand the facts and make a judgement whether there is criminality.

This user is a New Matilda supporter. dazza
Posted Thursday, February 21, 2013 - 22:28

And how many terrible Crimes Against Humanity and Human Rights are being perpetrated by another Australian 'friend', Indonesia, in West Papua, with Australian Government complicity. That were perpetrated in East Timor.
No one can ever accuse our Governments, over many years, of an excess of ethics and moral authority.
Our elected representatives have been uniformly cowardly, deceitful, always grovelling to a perceived stronger power.
I listened to the ABC interviewing one Alexander Downer on some subject, probably to do with Australian/israeli relations, and wanted to vomit. That man is still so evil. So many things in Government he should have to be asked to answer for, and he never will. Just as Obama has protected the minions of GWBush, and Bush himself, from all enquiries into their activities when in power, the Labor Party has protected Howard and Co. I suppose they are asking, and expecting, that The rAbbott does the same for them after September.
Justice, what the Hell is Justice!!??
Sometimes, I wish that I was a Kiwi. They do seem to have some intestinal fortitude over there, when the Big Powers (and some who only think they are Big) come threatening.

Olivier
Posted Monday, February 25, 2013 - 14:45

We need to hold those who torture and those who facilitate this torture to account in the international criminal court. anyone want to start a http://www.arrestblair.org/ site for Alexander Downer or John Howard?