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David Hicks

Julian Burnside

It is tragic to see that Australia’s senior law officer is willing to countenance this cynical farce without lifting a finger to help an Australian citizen.

David Hicks has been held in Guantanamo Bay for five years. He is held by the USA, our ally. At the time of writing this – Australia Day 2007 – he has yet to be charged. 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.

Australia has abandoned David Hicks. The Australian Government, and in particular John Howard, Philip Ruddock and Alexander Downer, bear principal responsibility for this miserable state of affairs. Major Mori, the US army officer assigned to represent Hicks, has said publicly that all Australia has to do is ask for Hicks to be repatriated and he would be. The Australian Government has never said publicly that we have asked the Americans to return Hicks. We may confidently assume that they have not asked. Their Kafka-esque reasoning is that he has not committed any offence recognized 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 recognized at the time as an offence under Australian law.

The facts alleged against Hicks were set out in the indictment which was to bring him before a military commission. 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 involved 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.

When Hicks is charged he will face a “trial” by military commission. The “trial” will have at least three distinctive features:

1. it will be dealing with offences which did not exist at the time of the acts in question;

2. it will receive hearsay evidence;

3. it will receive evidence obtained by coercion.

Mr 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 Mr Ruddock whose position in the Hicks’ affair disgraces the office of Attorney-General. It is tragic to see 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 Chief Justice 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 Guantanamo 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. Philip 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 America’s moral virtue. Unfortunately, America 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 Gonzalez thinks “quaint”. Perhaps Philip Ruddock also thinks the distinction quaint, since he accepts sleep deprivation as legitimate coercion, even though it is generally recognized as torture.

The American and Australian Governments have denied that anyone in Guantanamo has been tortured. It follows that they have merely been coerced. Donald Rumsfeld expressly authorized 24 interrogation techniques for Guantanamo 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. Prisoners in Guantanamo have been subjected to waterboarding: a technique in which the prisoner is lowered head-first into water and held until he is about to drown; he is 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. Bybee wrote a notorious memo in 2002. The memo concluded that:

• “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, e.g., lasting for months or even years.”
• “Even 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 America to deny the use of torture in Guantanamo despite numerous accounts of conduct there which, by civilized 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 for the world to see the graphic brutality of Guantanamo 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. I do not think it will happen this way.

As an alternative, 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 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 America. 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. No such protection for Hicks. Philip Ruddock remains unconcerned.

This is Ruddock’s idea of a fair trial. This raises another question: would Philip 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.