Hicks: the questions that should have been asked
ROGER FITCH ESQ • MONDAY, FEBRUARY 23, 2015
The Guantánamo torture diaries that have rocked the best-seller lists ... The Howard government's manifold blunders in the Hicks' case ... Imperial demands ... The United States' exceptional interpretations of the law of war ... Our Man in Washington, Roger Fitch, reports
There's a new SecDef at the Pentagon, although at the moment, Secretary of War seems more apt.
One of the things that "Ash" Carter may have to confront is a fresh examination of Pentagon treatment of "war of terror" detainees.
It's the same issue just addressed in the Senate's CIA report.
The Feinstein Report concerned the CIA's RID (Rendition, Interrogation and Detention) program, particularly its use of EIT (Enhanced Interrogation Techniques) acknowledged now to be torture, or at least CID (Cruel, Inhuman or Degrading), under the Torture Convention.
While there have been no legal consequences yet, the CIA's systematic mistreatment of its prisoners has been exposed. Will the Department of Defence be next?
The source of the Pentagon's possible anxiety is a Guantánamo "torture diary" published by Mohammad Ould Slahi.
It's remarkable that the document saw the light of day: Slahi is still at Gitmo, and the diaryunderwent Pentagon censorship.
There have been many prison narratives by ex-Guantanameros, released to an indifferent public and media; Slahi's memoir, however, has been a publishing sensation, quickly hitting the NY Times bestseller list.
By a timely coincidence, the author's actual torturer is known and has been profiled in aGuardian report.
It's the same case where the assigned Pentagon lawyer, Stuart Couch, refused to prosecute for "war crimes" charges because the accused had been tortured.
The principal players in this torture drama are now known, and their roles confirmed.
The cast includes, in addition to Slahi and Couch, the Justice Department lawyer John Yoo, who "authorised" the torture; former SecDef Donald Rumsfeld, who specifically approved Slahi's torture program; Geoffrey Miller, the Fifth-Amendment-taking prison commandant who facilitated the use of an experienced torturer, the Chicago cop Richard Zuley; and Zuley himself.
Others have come forward, yet nothing has happened. There has been no prosecution of anyone and no remedy for Slahi other than the dosh he may raise for his family through publishing his story.
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Another, ex-Gitmo, inmate – already the subject of three published books, including his own - has seen his "material support for terrorism" conviction thrown out by the Pentagon's rubberstamp Court of Military Commission Review.
Despite the fact that David Hicks appealed 15 months ago, most of the pleadings were conveniently unavailable at the website of the Pentagon's drumhead CMCR and were posted instead by Hicks' US lawyers, the Centre for Constitutional Rights.
Once Hicks' innocence was conceded in a brief by General Mark Martins, the Chief Prosecutor at Guantánamo, the CMCR got the hint, and ruled in favour of the defendant.
Regrettably, the Australian government still refuses to accept Hicks' innocence, despite overwhelming legal precedent and advice, the experience of other countries and years to reflect upon its own behaviour.
No lessons have been learnt, and today's government continues to look at the man, instead of the human and legal rights implicated in the Hicks affair.
The biggest questions about the Howard government's blunders and crimes against Hicks are unasked.
For starters, why did the Australian government of the day refuse to provide effective consular assistance to one of its citizens, when it does no less for drug smugglers, murderers and rapists in trouble overseas?
Why did Australia accept, without question, US assurances that Hicks was guilty, and not mistreated?
Can it ever be lawful for another country to seize an Australian citizen, question him on its ship on the high seas and then intern him in a prison camp, without any Article 5 hearing on prisoner of war status as required by the Geneva Conventions (and in Hicks' case, the US Uniform Code of Military Justice)?
Does the US president have the authority to unilaterally suspend the Geneva Conventions (or any other treaty)? Or flout parallel UCMJ provisions that track Geneva, word-for-word?
After the initial decision in Hicks' favour in DC district court, how could the Howard Government take the side of the US government on subsequent appeals? Why weren't briefs filed on Hicks' behalf in Rasul - his own case that he ultimately won?
Why wouldn't any government want to support its citizen's right to habeas corpus in a foreign court?
As for the military trials, is it possible that the Howard Government never took advice as to the legality of the prosecution of Hicks under either presidential or statutory military commissions?
Did George Bush have power to create a system of military commissions outside the UCMJ? When the Supreme Court, in Hamdan, ruled he did not, finding instead that the Bush commissions violated both US law and Geneva Conventions, why didn't the Australian government demand Hicks' repatriation?
Incredibly, the government then supported and encouraged Hicks' re-prosecution under the new Military Commissions Act, an Act which also purported (unsuccessfully) to denyhabeas, and contained the novel Material Support for Terrorism, a "war crime" any first year law student could have assessed invalid.
Aside from Hicks' own suffering, the worst thing about the Howard government's hostile mishandling of the affair was the terrible precedent it set, not least a presumption of guilt in "terror" cases and a reflexive deferral to the imperial demands of the US.
Will Australians in future be able to count on their government's support when they are in trouble, or will the government of the day pick winners or losers on political factors such as irrelevant US relations?
In Hicks' case, the Australian government knowingly supported a farcical trial, with procedural defects that violated international agreements as well as the norms of Australian and American law, a trial condemned by legal associations and top silks throughout Australia.
The UK withdrew its citizens and residents - all but one - early on, before any trials; Australia could have done the same.
Even so, the UK government paid settlements to the affected men of a reputed £l million each, even including the one man still in stir.
So, yes, it does seem David Hicks may be entitled to compensation, whatever his character, if only to vindicate the rights of the rest of us.
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There is one country whose behaviour has been more outrageous than Australia's.
Canada's much-abused Omar Khadr will likely be the next person whose MST conviction is overturned by the CMCR.
As for Khadr's "murder" conviction, the Canadian government remains the only country in the world known to support the baffling US notion that there's a distinction in combatants, and an unprivileged combatant has no rights under the laws of war.
Accordingly, such a war combatant who kills a US soldier, even by lawful means, somehow commits murder.
This is nonsense. Such a combatant may be "unprivileged" under domestic laws - ie, subject to prosecution under the laws of the battlefield country - but his lawful combat is not a warcrime.
Ironically, evidence in Khadr's case revealed the US had an unprivileged combatant (a CIA agent) in the firefight with Khadr, and one may be certain that if their man had killed Khadr, the US would not allow that act to be classified a war crime.
One wonders whether the Howard Government would have acquiesced in this truly crazy interpretation of the laws of war.
What if David Hicks had injured or killed an American soldier, using - as Khadr was alleged to have done - lawful means?
One trembles at the answer.