April 26, 2007
Silent enim leges inter arma
- Cicero 52 BCE
Maybe the weather had something to do with it.
I have to be fair. Last time I was here it was that dry desert heat that makes a Melbourne summer, 40 degrees celcius. Well it wasn’t here it was Fed Square last January maybe. My laptop cooked in the air so bad I had to turn it in at the NGV cloakroom and pretend to be interested in Charles Blackman so the circuits wouldn’t morph into silicon jelly. It was the same issue but it was hotter. Hotter: literally and metaphorically. The issue was a man named David Hicks.
David, or Mohammed to his new friends, for those who’ve been living under a rock the whole century, is an Adelaide guy who decided to play war around eight years ago. He headed off to the shredded pile of rubble that used to be the Yugoslav Republic, well Albania anyway. He joined the Kosovo Liberation Army and trained with them. He must’ve liked it because he came back to Australia and tried to join the army. But they wouldn’t take him. He’d only been as far as grade 9.
Didn’t stop our David. He converted to Islam. Why? Maybe it appealed to him for the same reasons religion appeals to so many. Directionless? Lonely? Inadequate? Here’s a ready-made solution: someone important loves you. No matter how wretched, how poor, how ugly, how stupid, how inconsiderate or socially inept. You are loved. All that someone asks in return is fanatical devotion and a healthy slice of whatever meagre paycheque you might be bringing home. No questions asked.
And remember that works both ways. We won’t ask questions and you definitely don’t ask questions. Ever.
Anyway our Dave picked Islam. Maybe he loved Allah. Maybe he realised there was a certain slice of the Faithful that’ll give you a rocket launcher. We won’t know for a while because Dave can’t talk to the media for a while. You see since that hot day in summer he cut a deal.
I can’t pinpoint the exact time when the rhetoric of our government shifted from defiance of criticism to, well, not quite capitulation but suggestions that Hicks should enter into a plea bargaining arrangement. Several times last year the Foreign Minister and the Attorney General had made the suggestion. At some point between 2004 and 2006 public opinion about the Hicks case shifted and he became a liability for Howard. The Attorney General had even gone so far as to write a defence of the government’s actions in The Age. Sometime last year I read mention of a guilty plea by Hicks in return for a reduced sentence, consideration for time served.
And I thought: they’re going to cut a deal and make this all go away.
I should say for the record that I don’t in fact know there was a deal. But if I had to bet on it and the truth was coming out I’d bet on a lot of phone calls between the Australian and American governments. Now that Britain seems to be backing out of Iraq Australia are the US’s final and most steadfast allies. John Howard is Bush’s most steadfast ally. Bush needs Howard insofar as he needs anyone. It’s in his interest that Howard stays and if Hicks was allowed to become an election issue this mightn’t happen.
In any event the guilty plea was most convenient for the government.
The saga naturally goes back to the capture of David Hicks by Northern Alliance forces just months after the September 11 destruction of the World Trade centre by al-Qaeda terrorists. Back then there wasn’t much sympathy for old Hicks. The Howard government okayed the US detention of Hicks along with other terror suspects at the detainment centre in Guantanamo Bay Cuba asking for certain guarantees:
- No death penalty
- That he’d serve his time in Australia
- If desired he’d be appointed an Australian lawyer subject to security clearances and the approval of the military commission.
- That discussion between said lawyer and Hicks wouldn’t be monitored by the commission.
- That Hick’s trial would be open subject to military restrictions.
- That Hicks would be allowed contact with his family.
Howard was returned a couple months after 9/11 with a larger majority and three years later was handed (in alliance with Steve Fielding) control of the Senate. Hicks was not an election issue in 2004 and the result was attributed to then opposition leader Mark Latham’s bad credentials economically.
I think the tide slowly turned during 2006. The Australian public became aware that Hicks had been incarcerated without charge for four years. The government’s response to this was that this had been a result of the challenge to the constitutionality of the commission set up to try Hicks and others. The Prime Minister said as much in May of that year:
Well we want Hicks brought to trial as soon as possible. … What’s holding it up at the moment is not the American Administration or the Australian Government. It’s a court challenge within the United States which has the sympathy and the support of Mr Hicks and his lawyers and until that court challenge is resolved, the Military Commission trial can not go ahead, and that challenge has been responsible for about at least a year’s delay in Hicks being brought to trial.
But the Hicks issue refused to go away. Major Michael Mori assigned as Hicks defence council in the States had become a familiar figure on Australian tv especially Lateline. Amazed that the Australian government would just let one of its own rot in legally dubious circumstances Mori toured Australia in August of 2006 giving lectures and speaking at rallies on behalf of Hicks. The spectacle of a US marine leading a march on the Foreign Affairs minister’s offices must have been something that Howard has never envisaged.
Perhaps the watershed in public opinion regarding Hicks was the interview conducted by Andrew Denton on the 14th August 2006. Here was a US marine stating categorically that Hicks would not get a fair trial:
…until there is a change, until his situation is re-evaluated. There is no hope that he’s going to get a fair trial next week, next month. If the administration gets through the Bill they want dealing with Commissions, it will not provide him the basic protections that he deserves…
It was more than that. According to Mori the government’s assurances that Hick was not being mistreated were bullshit:
I believe he’s been mistreated and physically assaulted, and, through my investigation, I’ve confirmed it. What’s interesting, it came out and became an issue with the Australian Government, and they of course, are only relying on the assurances by the US administration. I’ll give you an example, because they conducted an investigation. One of the allegations was that David was with a group of other detainees that were taken from a ship to a piece of land, they were hooded and bound at the time, and that they were randomly beaten. So then they conducted their investigation and spoke to other detainees that were there that had been beaten as well and said, “I was hit,” as well. But that didn’t support David’s story because they were hooded and they could not see David being beaten. You see, they can always try to find some way to support that doesn’t confirm what happened. Any logical person would say that if five people go out and all five people say they were hit at this time, that that supports that.
There was graphic description of Hicks’ treatment:
ANDREW DENTON: Terry Hicks, his dad, alleges that at different times David has been beaten and that he’s had objects inserted in his anus. Are you aware of anything like that?
MAJOR MICHAEL MORI: Yes.
ANDREW DENTON: That has happened?
MAJOR MICHAEL MORI: Yes.
The reasons for the situation’s unfairness were plain. The military commission which was neither a court martial nor a civilian criminal trial dissolved the separation of powers which underpin fairness in the Western legal systems. As Mori told Denton:
MORI: What you found out was, the people that created the system are the same people that were responsible for fighting the war in Afghanistan, setting up and choosing Guantanamo as the detention centre, approving interrogation techniques and being in charge of the interrogations that were going. So what you was a system of, sort of like, the investigators and the gaolers also being in charge of the supposed trial system. There was no independent check and balance on it. Unfortunately they needed to set up a system that would justify what they had already done.
ANDREW DENTON: What is the key difference between a Military Commission and a court martial, the system you were expecting?
MORI: I think it’s the independence, the independence of a judge, a judiciary that is in control. Once someone is charged, the independent judge takes control, and that goes from both the trial level and through the appeal process. In the Commission system, it was set up – they created this person, sort of an appointing authority, and I think in Australia maybe more like a DPP. Yet that individual – if I made a motion to dismiss a charge, it would go not to the presiding officers who were on it, but it would have to go to the appointing authority. So it would be like letting the DPP rule on defense motions here in Australia, and that’s not a fair system that anyone can support.
Mori’s description of Hicks as just an Aussie guy, his outlining of the censorship of Hicks’ mail including deleting the word love from family letters and his refutation of the official depiction of Hicks as a madman bent on destroying Western civilization…
…he has more in common with the Alabama National Guardsmen outside his cell than the guy locked up next to him. David doesn’t hate Americans. He doesn’t, you know.
…must’ve served powerfully contrary arguments to the Howard government’s image of Hicks as a terrorist who’d earned his just deserts and was being treated to all due process at the hands of the American Military justice system. After all if a US marine would come out and speak of a system of ‘justice’ prejudiced to find Hicks guilty, an incarceration regime that included beatings and rape with blunt instruments and even refuted the basic allegation that Hicks was an anti-American zealot….
Well it raises questions. Doesn’t it?
As Tim Bugg, the President of the Australian Law Council said late last year:
David Hicks’ treatment has been entirely inconsistent with the basic principle of innocent until proven guilty and the Australian Government has been 100 per cent complicit in denying him this fundamental right. First, it publicly demonized him from the moment of his arrest. Second, it initially endorsed his indefinite detention without charge. And now, after five long years, the Government is not calling for an immediate review of the legality of his detention by a independent court; not for his immediate release either absolutely or on bail; not for an expeditious and fair trial before an independent and impartial court; but instead the Government is calling for the US authorities to be given a second chance to try him before a fundamentally flawed military commission regime which has already been ruled illegal once and, after David Hicks is left to rot for another few years, will probably be judged so again.
I believe this was at the centre of the Fair Go For David campaign. It was also at the heart of my exacerbation at various vitriolic attempts to sledge the man and his supporters over the previous few years. His guilt or innocence as far as I can tell has been lost in the political tempest. From the scraps of information gleaned from his letters and things he’s supposedly said I take him for a cowboy, someone who joined the Taliban because the Australian Army’s education standards were too high.
In a letter to his father Hicks was so stoked that he…
… got to fire hundreds of bullets. Most Muslim countries impose hanging for civilians arming themselves for conflict. There are not many countries in the world where a tourist, according to his visa, can go to stay with the army and shoot across the border at its enemy, legally
Reports of his diatribes against Jews and the West, his boasting that he wanted to crash a plane into a building and go out with a big adrenaline rush make him sound like more like a yobbo dickhead than anything else. Claims that he was al-Qaeda’s golden boy were, I think, spurious. After all are you really going to leave your golden boy guarding a tank while you take off for the caves? I don’t think so. If Hicks had been a crackerjack Jihadist he probably wouldn’t have been left to the mercies of the Northern Alliance. My guess is that if he’d had half a brain they would’ve hung on to him. A nice white boy would be an asset to any suicide bombing scenario.
Late last year the attorney General stated:
What we know is that in the United States they believe in the rule of law as well and if people want to challenge the lawfulness of procedures sometimes these matters are outside the hands of governments, they’re in the hands of the courts.
But the whole process surrounding Hicks’ detention was designed to get around the rule of law. The use of categories like “unprivileged belligerent” which as Mori said had been invented for the purposes of the commission. The fact of the matter in law I think is that Hicks was not guilty of anything. To be fair this must have concerned the government. After all the guy was in Afghanistan fighting on behalf of the Taliban. And the Taliban were behind al-Qaeda? Still does this justify subverting such cornerstones of the Common Law system like the presumption of innocence and habeas corpus. I don’t think so. Neither did most of the world’s legal professionals.
But it doesn’t matter now. Hicks pleaded guilty (after pleading not guilty and maintaining innocence for five years). His plea was carefully constructed in such a manner as to make it difficult for him to claim coercion after the fact. That and the year’s silence imposed upon him after his release from prison at the end of this year ensure that anything he eventually says will not be an election issue in Australia or the United States.
Which brings me back to the weather.
That blistering January day there must’ve been a thousand people packing the square. Out there in the hot sun listening to the drone of a long line of speakers one of whom was an ALP union hack who began every sentence with David Hicks and somehow managed to get around to Howard’s industrial relations laws a few words later. The crowd didn’t let her get away with that one. The best part of the whole shebang was a guitarist from Bob Marley’s Wailers. If only all rallies had some big Jamaican guy with a voice like fine whisky maybe more people would come. More music, less speeches, please.
Last weekend (the 21st) there was another rally for David Hicks, same time, different place. Besides location two things were different. It was cold and it rained and there was maybe a hundred people there. I hadn’t been planning to go. I mean: what was the point? I’d seen the posters plastered around town but they were part of the regularly forgotten background noise of urban life. I remembered the whole thing when I arrived at the State Library (the rally’s venue) to do some research. The entrance obstructed by the haggard and bitter faces of journalists and the roly-poly arses of their image takers. They formed a circle around the familiar and lanky leader of the Greens Party nationwide: Bob Brown. I looked at the baggy-eyed, lumpy journalists fiddling with their bits of silver gadgetry. Is there any such thing in the world as a healthy reporter?
Well Bob gave his lines. His first riffs were about the water crisis, the drought and how for eleven years John Howard’s done fuck all to fix the environment. Funny that. Then he started in on Hicks. The same stuff as before. The Howard government had let Hicks rot in an American dungeon for five years without charge. The Howard government had sacrificed the national sovereignty of Australia by letting the Yanks do what they like with an Australian citizen. The war is bad, George Bush is bad – ba-blah, blah, blah.
As I was listening to this I looked over the ‘crowd’. The last time most of the people there had been the so-called mums and dads – ‘ordinary Aussies’. As in: people without a political/ideological barrow to push. Ordinary people pissed off at some the government had done or in this case had not. What many of the ‘Hicks should rot or be shot’ lobby hadn’t realised about the “Bring David Home” campaign is that it had been supported by these people increasingly the last half-decade.
Today the crowd exclusively consisted of the stereotypical left. Everyone held a sign aloft.: The Greens, Socialist Alliance, Resistance, The Australian Democrats etc. The rain had abated temporarily and I sat at some distance watching this spectacle. Next to me some Indian business student sat waiting for one his contacts while the Socialist Alliance geeks flitted about like the seagulls looking for crumbs.
A couple of ‘em accosted him, a boy and a girl of university age. Their Socialist Alliance magazines accessories in their extended teenage rebellion matching their nasal piercings and dreadlocked pseudo-proletarian attire. The girl explained to the Indian guy that they were opposed to the ALP’s recent watering down of its pledge to wipe Howard’s workplace laws off the page:
“What we’re kinda sorta trying to argue is that..umm these laws are going to kinda sorta disadvantage working people in this country.” she hesitated, “Oh wait. Are you from this country?”
The guy shook his head, no.
“Oh well. This is happening all over the world. And we’re sorta trying to kinda protest…”
The guy bought the magazine to get rid of ‘em. A moment later the contact he’d been waiting for arrived and they began to discuss some business they were going to do. Business that would probably utilize the very channels of globalization that the girl and her silent boyfriend spent so much time opposing for reasons they sorta kinda understood.
Anyway the rally droned on. Bob left his journos and mounted the podium lambasting the ALP for not being there. Terry Hicks and a whole bunch of other people got up and their voices echoed distorted and fuzzy off the walls. Two things were different, the weather and the crowd. Did the size of the crowd have to do with the weather? Or was it because Hicks had cut a deal and pled guilty to the one remaining charge: providing material support to the enemy.
I think probably the latter. The deal worked. Hicks will be free a year from now and as far as most of us are concerned the matter is over. Only those who devote considerable time to opposition either of Howard of US foreign policy or both are still bothered. In legal circles there might be shaking of heads. But the matter’s been dealt with. It’s over.
I guess I should count myself as one of those who’ve half-forgotten the whole thing. I hate rallies and will only go if it’s really important. I attended last January. Last week-end I attended accidentally staying out of curiosity. But on reflection the matter shouldn’t really end there.
Most of the discussion about this issue has concerned the character of Hicks himself. If he’d been on trial in Australia there would be a certain restraint. After all he’s entitled to the presumption of innocence isn’t he? But over in Gitmo the opinions of the Australian citizenry had no bearing on the machinations of the process that would decide Hicks’ fate so all manner of character assassination was entered into: he was a deadbeat Dad, an anti-semite, a bloodthirsty gun freak, a fanatical terrorist. True? Maybe. I reckon he was just an Aussie dumbarse and if he’d managed to complete high school he might be fighting in Afghanistan this minute wearing a slouched hat.
But that doesn’t matter. What matters to me is that the Australian and US governments subverted basic structures in our legal system. It is these structures that underpin the freedoms so lauded by the patriotically correct these days. And it was the patriotically correct that were willing to overlook, to ignore, this subversion of our freedoms in the name of freedom. To me this seems a decadent loosening of our understanding and commitment to democracy as a people.
Our leaders forgot or just didn’t care about some fundamental aspects of democracy. A lot of us didn’t either. And I find that much scarier than David Hicks.