We have failed to protect our own

Brian Walters, 31 December 2006

FOR years after David Hicks was first detained, the Bush administration argued that prisoners at Guantanamo were beyond the reach of the courts — in a legal black hole where they had no rights. They also argued that infliction of pain up to the point of organ failure was not torture, and was legal.

The same authorities developed the doctrine of extraordinary rendition — just a sanitised name for kidnapping and torture.

In supporting the continued detention of David Hicks, our government has fallen in with criminals.

Unless the courts can test actions of governments and citizens, there is no rule of law. The rule of law does not just mean obeying the law. A central feature of the rule of law is that it allows the courts to stand between the citizen and the government, and determine disputes between them. Courts provide a check on the exercise of governmental power that protects the citizen from arbitrary abuse of power. We have a choice in governing our society — a choice between some having unbridled power (the rule of the despot, the rule of whim) and a society with clear laws that provide checks to the exercise of power (the rule of law).

When Hicks' lawyers took proceedings in the US Federal Court to challenge his status as an "unlawful combatant", his jailers placed him in solitary confinement with sensory deprivation for eight months in an attempt to make him drop the case.

The Australian government did not object to this treatment.

More than five years after he was detained, David Hicks faces no charge at all.

Earlier this year, the US Supreme Court declared illegal the military commissions set up to try Hicks and others. In these commissions:

  • Presiding judges were hand-picked by prosecutors;
  • Evidence obtained by inhumane treatment was to be admissible;
  • Evidence was to be tendered in the absence of the accused, and with no right to challenge it;
  • There was no right of appeal.

These commissions afforded none of the protections that every civilised community recognises and understands. Now the US congress has enacted legislation in an attempt to get around the Supreme Court ruling.

Only one nation approved the subjection of its citizens to these military commissions. Western countries such as Britain and France objected; so did Saudi Arabia and Pakistan. Even Afghanistan objected. And this process was never good enough for US citizens. Only Australia applauded this uncivilised treatment of our own.

Under the Geneva Convention, the failure to grant a prisoner of war a fair trial is a serious war crime. When our leaders fail in their duty to insist on this right for an Australian citizen, they gravely undermine the rule of law.

Since being held at Guantanamo Bay, Hicks has been beaten, subjected to sleep deprivation — loud music, bright lights, intense heat, intense cold — and lengthy interrogation.

He has endured years of solitary confinement with sensory deprivation. Family letters that get past the censors have all expressions of love and support blacked out.

Not surprisingly, those who know him are concerned for his mental health.

When someone is sentenced to a term of imprisonment they know their fate with certainty. But year in, year out, Hicks does not know when he will taste freedom. He is permitted no family visits. He is in a Kafkaesque nightmare.

Philip Ruddock, the Attorney-General of Australia, supports this treatment of Hicks. Contrary to well-known principles of international law, Mr Ruddock tells us that sleep deprivation is not torture: it is merely "coercive".

Mr Ruddock admits that Hicks has committed no crime against Australian law, but Mr Ruddock says that if Hicks is concerned about the delay in dealing with his case, he should engage in plea bargaining.

Here we have the unprecedented spectacle of an Australian Attorney-General urging an Australian citizen, entitled to the presumption of innocence, to plead guilty.

No Australian citizen should be coerced into forfeiting his rights. The Attorney-General's duty is to uphold the rule of law, not undermine it in this way.

Brian Walters is a Melbourne barrister and the immediate past president of Liberty Victoria.