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David Hicks: the government needs a verdict of Guilty

Stephen Charles

The New South Wales Director of Public Prosecutions said that the treatment of David Hicks was “disgraceful”, which led the Minister for Foreign Affairs to tell the DPP to “mind his own business,” surely one of the most impertinent and arrogant comments made by an Australian Cabinet Minister.

The Pentagon has announced the rules under which persons such as David Hicks will be tried before a military commission. Evidence obtained under coercion and hearsay will be admitted, and the accused may be prevented from knowing what evidence is used against him, or the means by which it has been obtained.

Mr Hicks’ detention at Guantanamo Bay began more than 5 years ago. For the first time the Australian Government is now beginning to express concern at the delay and a desire that Hicks should be given a fair trial. Repeatedly the Government had before merely supported US statements that Hicks was “one of the worst of the worst” and that there were “very serious charges” against him under US law on which he should be tried.

The questions that now arise are, first, why did the Government not demand that Mr Hicks be tried before a Court Martial, or otherwise brought before a US Federal Court? The British Government successfully extracted British detainees from Guantanamo Bay, without any apparent damage to its relations with the US. Secondly, why is the Australian Government now beginning to change its position? Thirdly, do these statements express the Government’s real views? And fourthly, if not, what is the Government’s real position in relation to Mr Hicks?

The Government could, at any time in the last 5 years have demanded that the US charge and try Mr Hicks before a properly constituted court. He was being held in US custody on land controlled by the US. The Australian Government chose not to do so, leaving it entirely to the US military to decide his fate. This, no doubt, resulted from the climate of fear engendered by events such as the attack of 9/11, and an assumption in government circles that Mr Hicks was a very unpopular cause, and that leaving him to the Americans would do no electoral damage.

But over the years community concern in Australia has mounted. In June 2006, after Mr Hicks had been detained for 4½ years, some 76 senior lawyers wrote to the Prime Minister condemning the inherent unfairness of the trial planned for him in the US and the failure of the Australian Government to make any reasonable attempt to put an end to this injustice. Shortly afterwards the New South Wales Director of Public Prosecutions said that the treatment of David Hicks was “disgraceful”, which led the Minister for Foreign Affairs to tell the DPP to “mind his own business”, surely one of the most impertinent and arrogant comments made by an Australian Cabinet Minister. One would have thought the Government’s total desertion of David Hicks was very much the business of every thinking Australian, certainly of every Australian lawyer.

In September 2006, the Attorney-General went to Washington to discuss revised military arrangements for the trial of suspects such as Mr Hicks. It was reported widely that these allowed evidence obtained through coercion to be admitted at trial. On his return to Australia, Mr Ruddock told the ABC’s “Insiders” program that sleep deprivation should be permitted as “coercion” rather than torture. He was immediately challenged by the National President of the RSL (who said it could certainly be torture), the Chief of the Australian Defence Force, and Federal Police Commissioner Keelty who said sleep deprivation was illegal for use by AFP officers, and amounted to “unfair tactics”.

The Attorney-General has not, so far as I am aware, modified or retracted these remarks. Not much has, however, since been made of Mr Ruddock’s comments. This may be because most Australian lawyers would prefer not to acknowledge the fact that the titular head of Australia’s legal profession holds such views. More to the point is that Mr Ruddock made these remarks shortly after returning from discussing procedures for the trial of Mr Hicks in Washington, which suggests that it is highly likely that evidence extracted from him - and possibly other prisoners – by means that many would regard as torture will be used against him.

In recent times, the Chief US military prosecutor, Colonel Morris Davis, continued the process of describing David Hicks in terms strongly suggesting that he is guilty and attacking his military lawyer, Major Mori. If David Hicks were being tried in Australia, conduct of this kind would constitute a serious contempt of court. Mr Wran, then Premier of NSW, was fined $25,000 for just such a contempt of court in 1986.

Mr Hicks is, it seems, now to be tried before a military commission which can deny him the right to be present, the right to cross-examine, and to know all the evidence used against him. It can accept evidence obtained by coercion and on hearsay. It is likely that the prosecution will produce statements made by David Hicks under coercion, obtained from him while held in solitary confinement, of course without access to legal advice. None of this evidence would be admissible under the Australian criminal system (or, I believe, the American), as was shown by the Court of Appeal’s recent rejection of the conviction of Jack Thomas, before, however, his later statements made on television were taken into account.

The evidence may well also include allegedly corroborative statements obtained from other prisoners in Guantanamo Bay (or elsewhere). A fair criminal trial would require such evidence to be given by these prisoners in person, in front of the accused, and for them to be subjected to rigorous cross-examination as to the circumstances in which the evidence had been obtained, including whether it had been extracted under coercion, or offered in return for favours. But since the permitted procedure apparently allows the evidence to be given by hearsay, or the circumstances under which it was obtained to be kept secret, that may well deny David Hicks the ability to discover the means by which the evidence was obtained, or the ability to challenge it. The many flaws in the trial process proposed have already been convincingly exposed by the Hon Alastair Nicholson in his recent article in The Age newspaper (11 January 2007).

In addition to attacking Mr Hicks and his lawyer, Colonel Davis continues to insist that the time Mr Hicks has spent in detention on Guantanamo Bay should not be taken into account as part of any sentence he receives. Three members of the US military prosecutor’s office resigned in 2004 protesting that trials were rigged. All of these procedures are retrospective. It is perfectly clear that no US citizen would be subjected to them.

Mr Ruddock continues to assert that the Australian Government is doing all it can for David Hicks, and that it is working to ensure safeguards are in place for him to be given a fair trial. It is, however, difficult to imagine an outcome that could be more politically embarrassing or damaging for the Government than for David Hicks, after all this time, to be found not guilty of the charges suggested. It is surely of major importance to the Government now that he be tried and convicted of serious offences, and before this year’s election takes place.

All the evidence suggests that far from receiving anything like a fair trial, Mr Hicks will be charged and tried under procedures amounting to a kangaroo court of the most noxious kind. The fact that our Government continues to support this travesty gives the community every justification for reassessing the Government’s publicly stated view. In reality, it wants Mr Hicks convicted, and as soon as possible.