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Article Excerpt
DETAINEE 002: THE CASE OF DAVID HICKS BY LEIGH SALES (CARLTON, VICTORIA, AUSTRALIA: MELBOURNE UNIVERSITY PRESS, 2007) 336 PAGES. PRICE AU$32.95 (PAPERBACK) ISBN 9780522854008
INTRODUCTION
The case of David Hicks has generated great controversy. This is not surprising having regard to three factors. The first was the hostile attitude exhibited against him by the then Australian Government (with a degree of acquiescence displayed by the Federal Opposition). The second was the initial lack of concern shown by the general public, perhaps because of the events that occurred on 11 September 2001 and the widely perceived threat of international terrorism. The third factor was the campaign waged by supporters of Hicks based on the flawed nature of the process that culminated in his agreement to plead guilty to certain charges of assisting terrorist organisations in return for ultimately obtaining his freedom. The nature of that process was strongly criticised by members of the Australian legal community including the Law Council of Australia. (1)
Now that Hicks is no longer in prison and the brouhaha has subsided, it becomes possible to revisit the whole affair objectively. An important starting point is the book Detainee 002, (2) which is the subject of this review. It was written by Leigh Sales, the then North American correspondent of the Australian Broadcasting Corporation. The book will be of special interest to lawyers especially for the way it relates the facts of the affair.
Detainee 002 provides a very readable account of the handling of the Hicks affair by the United States and Australian Governments and a lively description of the personalities of the principal participants. It also displays a considerable understanding of the main international and domestic law issues relating to the use of Guantanamo Bay as a place of detention for terrorist suspects following the catastrophic events of 11 September 2001. But Leigh Sales is not a lawyer. So the book, quite understandably, does not dwell on important legal matters, notably rule of law issues. No mention is made, for example, of the searing indictment by Philippe Sands of the stance of the US and United Kingdom Governments on matters of international law and human rights in his acclaimed book Lawless World. (3)
This book review includes an examination of the legal issues underlying the Hicks affair and the conduct of the US and Australian Governments in that light. That examination raises important questions and presents a sharper picture of the Australian Government's discharge of its responsibilities. In saying this, we do not express or imply any criticism of the author who, when she wrote, was not aware of some developments which have recently come to light. We seek simply to draw attention to the fundamental rule of law and other legal issues which were at stake in the Hicks affair and to provide another perspective, one which is somewhat less favourable to the two Governments than that which emerges from Detainee 002.
THE BOOK: CONTENTS AND STRUCTURE
The book provides a narrative account of Sales's dealings with the Australian and US diplomatic and military officials who were involved with the case, and also with the military and civilian lawyers who acted for and against Hicks.
The early chapters provide insights into Hicks's personality, his early childhood in the northern suburbs of Adelaide, South Australia, his conversion to the Islamic faith and his search for meaning and adventure in his life. They describe the events which led to his fateful visit to Afghanistan and his return there even after the events of 11 September 2001; his capture by members of the Northern Alliance when he attempted to leave that country; his transfer to the US military forces; and his ultimate imprisonment for over five years in the prison facility at Guantanamo Bay. The conditions he experienced for most of that time amounted to solitary confinement, despite denials to the contrary by the Australian Government. (4) The book deals in some detail with the policy of the US Government to detain, interrogate, punish and try (through a system of military commissions) suspected international terrorists at Guantanamo Bay. (5) This policy was adopted with the expectation that the system would be immune from judicial review, based on precedents established during World War II. (6) This expectation was based on the mistaken assumption that the suspected terrorists did not enjoy the normal protections accorded to military combatants under international law and the conditions of their detention would not be subject to judicial review by American courts. (7)
The book emphasises the strong alliance that was established between the US and Australian Governments in the wake of the events of 11 September 2001, which led the Australian Prime Minister to be acquiescent in Hicks's detention, despite the growing intensity of international and other criticisms of the US Government's policy. This was so despite the long delays that occurred in formulating the processes to be used by the military commissions and the repeated legal setbacks suffered by the US Government at the hands of the US Supreme Court. (8)
The book details the efforts made by officials at the Australian Embassy in Washington to expedite the charging and trial of Hicks, (9) and also to improve the quality of the procedure to be used during the two trials that he laced, (10) which, however, only went some way towards meeting the serious and informed criticisms advanced against that process. (11)
The book also describes the efforts made by the relatives and supporters of Hicks and his military and civilian lawyers to free him and seek his return to Australia. (12) The culmination of those efforts, and the changes that occurred in public opinion generated by those efforts, combined with the impending federal elections due to be held before the end of 2007, finally led to Hicks accepting a plea of guilty. This resulted in him serving a further period of nine months imprisonment in Australia on the condition that he withdrew his previous allegations of mistreatment and agreed that he would not, for a period of one year, communicate with the media regarding his detention at Guantanamo Bay. (13)
SALES'S OWN EVALUATION
In an address to the Sydney Institute in 2007, the author set out what the book sought to achieve. Sales acknowledged that she painted an unflattering picture of Hicks. (14) She was happy to wear the criticism made by lawyers that the book was 'obsessed with balance and pragmatism' and 'annoyingly fair'. (15) She saw that as a vindication of what she had set out to do as a journalist, which was to provide a clinical balanced account, assessing the affair objectively. The author indicated her opposition to what she described as 'advocacy journalism', especially when it is not declared as such, (16) although she conceded that pure objectivity is unattainable. (17)
What Sales saw as her central task in writing the book was exploring whether the US Government's policy of dealing with the suspected terrorists detained at Guantanamo Bay and the handling of the Hicks affair by both the US and Australian Governments served the goals of the so-called 'war on terror'. (18) The clear negative answer to that question can be found in the final chapter of the book, which contains an overall evaluation of the affair. (19)
The heading of that chapter is 'With Hindsight' which signifies 'wisdom after the event'. (20) The author points to the sharp disagreement which existed about whether measures taken to combat the 'war on terror' compromised basic traditional US values and respect for the rights of individuals--a question that she thought was rooted in both politics and morality. (21) Instead of answering that question she chose to examine the matter from a pragmatic perspective by objectively answering another question: whether the decision to sacrifice certain legal and human rights in the interests of national security had worked to achieve the essential aims of the US Government, which were to 'eradicate terrorism and to mete out swift justice to terrorists'. (22) She thought that the immediate response of that Government to the events of 11 September 2001 was understandable but less so with the passing of time as the immediate sense of urgency and threat declined. (23)
In giving her negative answer to the question posed, the author identifies two crucial errors made by the US Government. The first was the failure to build a solid legislative foundation, which would have been readily granted by Congress at the time, despite the Government's concerns that Congress would be 'slow and unwieldy'. (24) As a result, the Government left itself open to legal challenges and to criticism because 'swift justice' was not delivered through the military tribunals system, especially when compared with those cases dealt with by the court system. (25) The second error was a failure to consider how the prison facility at Guantanamo Bay, with its prospect of indefinite detention for its detainees, would affect the international reputation of the US in the long term. (26) The US Government neglected to pursue public diplomacy to win international support and this helped to elevate Guantanamo Bay as a rallying cause for Islamic fundamentalism. The author thought it was unlikely that the policies pursued had reduced terrorism around the world. (27)
In her view, the same polarised disagreement which surrounded the politics and morality of the Guantanamo Bay policy surrounded the Australian Government's handling of Hicks. Once again, the author prefers to concentrate on the pragmatic evaluation of the Australian Government's performance, even though she refers in passing to the importance of examining whether the Australian Government's policy upheld democratic values. (28) She shows an awareness that Hicks would have faced the same process even if he was 'entirely innocent' and also that he was 'entitled to the same standard of justice as any Australian citizen' regardless of whether he attracted public sympathy. (29) In her view, the end result was seen as lacking in credibility. Although the Prime Minister could never have foreseen that the case would unfold in the way it did, his government was dogged in its refusal to change tack in the face of ample evidence of incompetence on the part of the US Government. According to the book, this was an inflexible policy position that was dictated by long term concerns of being seen as a loyal ally of the US, even though the US had unwittingly or otherwise misled the Australian Government. (30) The author thought that Hicks was undoubtedly guilty of associating with al Qaeda, but the legal procedure used against him was 'poorly executed' and 'lacking in credibility'. (31) It had the effect of severely undermining 'the democratic values and ideals on which Australia and the US are built'. (32) She concludes with a resounding answer to the question posed at the start of the chapter, namely, that the policies pursued at Guantanamo Bay generally, and the handling of Hicks in particular, had not made 'the world safer from terrorism' and had not 'delivered swift justice to terrorists'. (33)
The author also indicated that another underlying aim of the book was to debunk some of the myths surrounding Hicks. The myths were as follows:
1 The Australian Government abandoned Hicks. (34)
2 Hicks was tortured at Guantanamo Bay. (35)
3 Hicks was not abused while in US custody, using the term 'abuse' in a sense different from torture. (36)
4 The 'war on terror' is a war. (37)
5 Hicks was a lost soul in the wrong place at the wrong time. (38)
As will become apparent, we believe she succeeded in doing so in relation to all the myths except the second (although there are qualifications relating...
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