David Hicks: Human Rights on Trial

Helen Thomas: It’s hard to be sure if prisoners at Guantanamo Bay have heard the news yet, or not. But the announcement by George Bush on the eve of America’s Independence Day, might have swept through the Caribbean prison like a strange wind.
Six detainees have been designated ‘eligible for trial’ before military tribunals at the old Cuban naval base. Adelaide-born David Hicks is on the President’s list of six.

Welcome to Background Briefing. I’m Helen Thomas.

As yet, no charges have been listed, or laid, against any of these men. So what does it mean for the alleged Taliban fighter suspected al Qa’eda operative and apparent Aussie traitor?

According to Joe Margulies, one of a team of lawyers representing David Hickson in a broader legal challenge, nothing good.
"David is being held unlawfully. It does not become lawful if you convert that from no process to a sham process."Joe Margulies: What it means is that the President has given the responsibility over to the Department of Defence to bring these six before these tribunals, yet doesn’t change our position with respect to David at all. Our position has always been that David is being held unlawfully. It does not become lawful if you convert that from no process to a sham process, and as the military commissions are currently constituted, that is as they are identified and contemplated now, they are unlawful. They fail to comply with the most fundamental standards for international and domestic due process.

Helen Thomas: But Joe Margulies also sees a much greater cause for alarm, as the Bush Administration grapples with its so-called war on terror, and what some conservatives describe as a ‘Constitutional state of emergency’.

Joe Margulies: What they believe is that the Rule of Law has become a burden, and it itself a threat to national security. And I’m content to accept that they believe that in good faith; that’s their position. Now what they are mistaken about is that the Rule of Law is the only lasting source of national security. That is, we achieve our security only by scrupulous adherence to the Rule of Law. We abandon it at our security’s peril, and that’s the fundamental disagreement I think, between my colleagues and I and the government.

Helen Thomas: For Australia, David Hicks, one-time rodeo rider and ‘roo skinner, is at the centre of a quite extraordinary international legal debate, an argument that’s only grown more impassioned since that list of six was made public ten days ago.

John Howard: I am satisfied on the information that I have that if any Australians are tried in the United States, the basic conditions of a presumption of innocence, of access to a lawyer and so forth, all of the things that are basic to the judicial system as we understand it, will be applied.

Helen Thomas: Despite our Prime Minister’s confidence, Tony Blair’s government is in engulfed in a major row over this matter, with the British Foreign Minister criticising Mr Bush for including two Britons on the list for possible military trials.

Now the core of the global concern is best summed up by three questions:

Are the detainees at Guantanamo Bay true terrorists, what the Americans call ‘enemy combatants’, or are they genuine prisoners of war?

Have they been treated fairly by their captors?

And is that rock of international law, the Geneva Convention, being upheld.

Radio station announcer: Y ou are listening to the Naval Media Centre Broadcasting Detachment, Guantanamo Bay, Cuba, FM 103.1 The Blitz…

Helen Thomas: There are 680 detainees from 42 countries now held in Camp Delta at Guantanamo Bay Naval Base. The jail sits on Cuba’s eastern tip, a good 17-hour drive from Havana. And some of the prisoners have been there for 18 months.

Working around them are more than 2600 military personnel, now stationed at this facility.

Phone ringing

Barry Johnson: This is Lieutenant-Colonel Johnson.

Helen Thomas: Lieutenant-Colonel, Helen Thomas calling, Sir, from ABC Radio in Sydney.

Barry Johnson: Hi.

Helen Thomas: How are you?

Barry Johnson: Well the day is …

Helen Thomas: Lieutenant-Colonel Barry Johnson is the spokesman for this Joint Military Task Force, and we spoke with him at the end of a working day at the camp last week.
"There are different reasons why they may be moved to or from their cells, whether it be for medical reasons or interrogations." Barry Johnson: There are 680 detainees currently being held here, and their day starts with a meal. They have the call for prayer, which begins some time just before dawn, and then five times through the day. They have their breakfast meal, lunch meal, dinner meal. There are exercise periods which may vary, depending upon the level at which they’re at, based on their co-operation and the security risk that it’s believed that they pose to the guard force. And there are different reasons why they may be moved to or from their cells, whether it be for medical reasons or interrogations, which are an important part of what we do.

Helen Thomas: In terms of interrogations, are you at liberty to tell us how often they occur?

Barry Johnson: Well it really varies on the individual. Sometimes individuals will ask to be interrogated for a number of reasons. It really isn’t dependent upon so many people getting in so many times per week, it’s a matter of the individual and their role, and what new information has been gained of why that individual may need to be questioned again.

Helen Thomas: And can the Joint Task Force do that interrogation, or is that interrogation work being done by different authorities, different agencies?

Barry Johnson: No, the Joint Task Force has the mission of both detaining and interrogating the enemy combatants that we hold.

Helen Thomas: There has been a great deal of criticism about the level and times that detainees are allowed out of their cells for exercise. It has been put to us that there are only two exercise periods of some 15 minutes twice a week; is that true?

Barry Johnson: Well that’s true for actually at this point, a small percentage of the detainees. It depends upon their level of co-operation with the camp rules and the activities here. Over 75% of the detainees are what we call a Level 1 or higher in the medium security, in which case they get daily periods for exercise of up to 30 minutes, or more if they’re in medium security, and that goes on seven days a week.

Helen Thomas: Can you tell us where the two Australian detainees fit within that structure?

Barry Johnson: No, I’m not able to speak specifics of any individuals either by nationality or in any other way.

Helen Thomas: Media access is restricted, so it’s hard to get a real picture of just what life’s like there. For instance, how large are the wire-mesh cells these detainees spend so much time in?

Barry Johnson: They’re 8-foot long, 6-foot-8-inches wide, and 8-foot tall, are the dimensions, and they include a bunk, they include an Asian-style toilet, and a sink in which the detainees can clean themselves. It’s raised slightly off the ground as you walk into a cell block, and there is a row on either side. So 24 cells on either side with an aisle between them where the guards walk and are able to monitor the activities in the cells. And it’s all mesh in the high security side, and the floor is actually a corrugated steel floor; it sits up off the ground, on that side.

Now there is in the medium-security side, where we have approximately 125 of the detainees, and those are bays, communal bays, where 10 detainees live together, up to 10. And they take their meals and they have considerably more exercise time outside of their communal area.

Helen Thomas: It can’t be easy being locked up in this environment, and it’s probably not easy working in it, either.

Barry Johnson says close watch is kept on the National Guard and Reservists who do most of the actual guard duty, to ensure they’re ‘not put under too much strain’. But military personnel can’t explore the rest of Cuba for a little R&R.

Barry Johnson: Exploring Cuba is not something that the military encourages, and it’s just not possible. We have a fence line that is guarded by Marines, as it has been for a few decades now. So there is a very definite barrier between us and Cuba, and the Base Commander has regular contacts with the Cuban General who commands forces on the other side, and they discuss any issues, to ensure there’s no problems between the forces on either side of the fence that separates us.

Helen Thomas: So there’s no time, or there’s no possibility of taking that 17-hour drive to Havana?

Barry Johnson: There are no trips to Havana, no.

Helen Thomas: But the psychological health of the prisoners is what concerns the International Committee of the Red Cross, involved since the start of this long detention process.

Daniel Cavoli is its outgoing Head of Mission for Guantanamo Bay.

Daniel Cavoli: We started visiting the internment camps at Khandahar Airport and Bagrum Airport in Afghanistan back in December 2001, so we saw the first internees, the first prisoners who arrived or who had been captured by whoever are to be transferred to those camps, and we started to visit them. And subsequently of course, we just went to Guantanamo. So what we do exactly in the camp: we first register the people from the first time we see them, just to keep truck of everybody, and have of course all the family addresses and contacts. And we give the possibility to all prisoners to write Red Cross messages to restore the family links, which is a paramount thing for people who are kept in detention, and of course for the families who don’t know the whereabouts of their next of kin.
"In the case of Guantanamo, we are the only international organisation, and we have been the only independent and neutral people there." One of the very important activities we do in detention is to have private talks with all the prisoners, private talks meaning bilateral discussion in the language of the prisoner all the time. It’s exclusively an ICRC delegate who speaks with the prisoners, and these private talks main objectives are to assess the conditions of detention, to assess the treatment of the prisoners in the prisons as well, and of course to leave room and space for all the prisoners to share or to talk or even to argue about things with the ICRC delegates, because in the case of Guantanamo, we are the only international organisation, and we have been the only independent and neutral people there. And so it’s always important for prisoners to have somebody they can talk very freely with.

Helen Thomas: Of course the ICRC’s bound by a strict code of confidentiality, which means it can’t comment on specific case. But it’s concerned about the lack of ‘clear legal framework’ for these internees.

Daniel Cavoli: Our concern is we publicly don’t speak ICRC, but we’ve always held concern about the lack of this clear legal status and proceedings for the internees at Guantanamo, and the seemingly open end of detention that has an impact on the people, because if you don’t know what happens to you, it’s the most awkward situation for yourself, and it does have an impact on, not all probably, but part of the population, by all means, yes. And that’s why we’re openly discussing this fact with the US authorities and saying that there should be legal proceedings at least to clarify everything, and people should know where they stand, and if there is a clear legal process, and on what basis the persons can be detained further, there will be clear for them, and then later on. If no such legal basis for detention exists, then the person has to be released.

Helen Thomas: At Camp Delta, Lieutenant-Colonel Barry Johnson confirms there have been 28 suicide attempts by 18 detainees, but says measures have been taken to alleviate these tensions.

Barry Johnson: There are a number of individuals who came in here with mental issues, because of where they were, they were on the battlefield, and the situation they came from in their lives. And certainly it is a factor as it would be for anybody, being detained. What we have done here in the past months, since March, is opened up a mental health facility, which has helped to depressurise if you will, some of the problems and give those individuals who are most at risk, supervision of professionals in the mental health field, in a special cell block area. And that has helped to take those individuals out of other areas of the camp where they could have a negative impact on the detainees around them. And as a result of many things: the training of the guards to make them more aware. Those rates since January have decreased by 90% within the camp, and we attribute that directly to a number of the programs that have been instituted, but yes, there have been 28 attempts by 18 individuals, to date.

Helen Thomas: Is the physical wellbeing of the detainees a concern?

Barry Johnson: Absolutely. We have a detention hospital within the camp. It’s manned by the same doctors and frankly has the same type of facilities as a hospital for our service members. They’re screened from the time they come in, they receive regular physicals, regular health treatment if they have complaints. It’s a very active program. For many of the detainees they’ve never in their lives had health care of this type, and we’ve done everything from heart surgery for corrective action of heart problems that detainees came here with, to treating battlefield wounds, to routine procedures that you would expect in any population.

Helen Thomas: And there are reports too, that a court room facility has been already set up on the base, and an execution chamber being set aside; is that accurate? Has building that facility started?

Barry Johnson: We have identified a facility where court proceedings could occur, and we’ve done some modifications to ensure we could support it on short notice. As for any other type of facilities to carry out any sentences, be it detainment or whatnot, there are no approved plans to do anything, and there certainly isn’t any construction going on of that type.

Helen Thomas: No-one on or off the Cuban base seems clear about the timetable now confronting the six men who could stand trial. And let’s remember, no charges have yet been laid against any of them. In fact lawyer, Joe Margulies, part of the legal team that’s been representing both Australian internees, David Hicks and Mamdouh Habib, were surprised by the latest move.

Joe Margulies: Yes, absolutely. We had no advance notice consistent with the way the United States Government has operated in this entire course to litigation that we are counsel for Mr Hicks and Mr Habib, we are not advised of anything beforehand, and I believe that neither Mr Hicks nor Mr Habib have done anything to justify prosecution in these tribunals. So of course we were surprised that David would have been designated.

Helen Thomas: And how did you get the news?

Joe Margulies: I actually heard it from an Australian journalist. I was advised of it by email from an Australian journalist, who asked for a comment. Because in the United States they still haven’t identified the people that have been designated. They only have been identified in the international press because the United States gave notice to the foreign governments.

Helen Thomas: What is the purpose of that?

Joe Margulies: The United States has, throughout this, cloaked itself in s shroud of secrecy, and they disclose as little as they possibly can to the American public and the American press. And frequently, what we learn, we learn only because the international press has taken a greater interest in it.

Helen Thomas: Talking to us from his Minneapolis office, Joe Margulies is blunt when it comes to what he sees as the failings of the upcoming military trials.

"The government asserts the right to tape confidential conversations between David and his lawyers, and then to use that information as reason to continue to hold David as an enemy combatant." Joe Margulies: Well the biggest problem is they lack independence and impartiality, and they lack it in several respects, they lacked in that the appointing agency, the judge and the jury and the prosecutor are all part of the same legal engine. They lack independence because the government has made it very clear that even if David were to prevail at this tribunal, he would still not be released. And in fact, the government asserts the right to tape confidential conversations between David and his lawyers, and then to use that information as reason to continue to hold David as an enemy combatant. So that any trial, the result of which, even if it’s favourable to the defendant, to the accused, if it doesn’t lead to a change in the person’s status, is a show trial. It’s not really for real. And it’s only real if a favourable result in the trial leads to a favourable change in his status. But in this case the government is quite clear that he could even win in this trial, but then they would still use the information that they have learned by surreptitiously recording his conversations with his lawyers to keep him in the legal limbo that he’s presently in, and that Mr Habib is in. Well that’s a tribunal that lacks independence.

Helen Thomas: In other words there absolutely no client privilege?

Joe Margulies: No. The United States asserts the right to record any conversation it wants with the lawyer. Now then they say they won’t use that in this trial, but they will use it to hold him in the exact same circumstances, in fact, hold him indefinitely. I’ve never seen anything like that. You can win, and it doesn’t change your status at all.

Helen Thomas: Naturally there’s another side to this debate.

Ruth Wedgwood, an academic on leave from Yale Law School and currently with the School of Advanced International Studies at Johns Hopkins University, believes there’s sound reason for the process.

Ruth Wedgwood: The three problems were that No.1 you might need to introduce a broader range of evidence than is typically admitted in Common Law courts. American trial courts and I assume Australian as well, have very strict rules on hearsay for example, and it’s not simply that hearsay evidence, which is what someone said out of court, and we don’t have the eye witness present in the witness box, those kinds of statements always deserve less weight, but the issue is whether the jury could hear them at all; and in Federal District Court they could not. In a Military Commission they can. That, by the way, is the same latitude that the UN War Crimes Tribunals have, that the International Criminal Court would have, that European Courts have.

The second problem was that especially in the middle of a conflict, there may be some pieces of proof that you need to establish them of guilt that are nonetheless extremely sensitive, either in the source of the methods by which they were acquired, or by their very substance. You’re still trying to track down al Qa’eda cell members, often if al Qa’eda know that you know something, they will basically pick up the footprints on their trail, or make what you know about them useless in operational terms. So the problem is how do you use that at trial without losing your tactical advantage against al Qa’eda. In Federal District Court in the States, there’s no way ultimately to present evidence in court against the defendant without having it be published to the world. It’s a requirement that’s been read into the Sixth Amendment of our Bill of Rights: Guarantee of open and public trial. And although I know that civil courts can be closed, and military courts martial can be closed, and even the Yugoslav UN War Crimes Tribunal can be closed from time to time. There is simply no way we could close civilian courts. So the Military Commissions again gave you some latitude where you could close the court room in limited occasions if you had to, and where push comes to shove, it might be so sensitive a particle, that you could only show it to the defendant’s lawyer and not to the defendant himself.

Helen Thomas: Ruth Wedgwood says the third problem is the matter of security.
"Most of the judges who have tried al Qa’eda cases in the past in New York City are now living under 24-hour protection, and it’s not simply having a doorman open the door for you on your limo." Ruth Wedgwood: I’ll put the case in this fashion. Most of the judges who have tried al Qa’eda cases in the past in New York City are now living under 24-hour protection, and it’s not simply having a doorman open the door for you on your limo but rather they have what look like Navy SEALS casing their every movement in rotating teams 24/7, and live cloistered lives. Juries wouldn’t be given that, and certainly it’s very inhibiting to your life if you have to earn a living. So the problem is the concern that al Qa’eda’s threats of retaliation could extend not only from the judges but to the jury.

Helen Thomas: A former Federal prosecutor, Wedgwood was an advisor to the US Department of Defence in relation to military tribunals after the September 11 crisis, a framer, in a sense, of these new ‘rules of war’.

Ruth Wedgwood: There’s been a gradual working out of rules for Military Commissions over the last two years, year-and-a-half; there have been rules of procedure that were very carefully crafted, announced in March of 2002, which I think fulfilled a great many of the expectations people have about trials, and proof beyond reasonable doubt, presumption of innocence, right against self-incrimination, right to cross-examine witnesses, right to present your own witnesses, right to have exculpatory evidence turned over, the right to appeal to an independent appellate panel that can reverse and remand if there are serious errors of law. So those were worked out in March 2002. Then there was work on what kinds of crimes and what their elements, what their necessary pieces of proof would be under the customary law of armed conflict.

Helen Thomas: But Joe Margulies passionately disagrees.

Joe Margulies: First of all the devil’s in the details. Like just for instance in the right of cross-examination. Well of course that’s actually not even true, because there are some bodies of evidence that from which the client will be excused, that is, when they go into closed session, and it could be the core of the government’s case, this is the stuff that the government believes is the basis for their conviction. They could not only exclude the client, so you can’t be here when this evidence comes out, you can’t know about it, you can’t learn about it beforehand, you can’t talk to your lawyer about it, about why it’s untrue, your civilian lawyer can’t be there. Your military lawyer can be there, but your military lawyer can’t even talk to the client about it. So there could be a body of evidence that could be the core of the government’s case against the guy, but the guy will never know about it and cannot confront. That’s not what we call confrontation. It’s not what the confrontation right is about in the United States.

But more importantly, let’s say all those rights are true. Everything that Professor Wedgwood describes is absolutely true. Well it has no meaning if you can win and still not get your release. What difference does it make if they give you all these rights if its success doesn’t change your status?

Helen Thomas: How are you so sure that even if these people are found innocent, they will in fact be held indefinitely?
"If they are released, that is purely a matter of executive grace, it’s not a product of an independent process." Joe Margulies: We cannot say that with certainty. All we know is that the rules definitely contemplate that, that is, they allow for that. So that if they are released, that is purely a matter of executive grace, it’s not a product of an independent process. Ordinarily in a trial, if you win you walk out the back door of the court room. If you walk out the back door of Guantanamo in this case, it’s only because the United States chooses to let you out, not because the rules require that.

Helen Thomas: Now Adelaide’s a long, long way from Minneapolis and Connecticut, where these two opposing lawyers reside. But David Hicks grew up in that city’s northern suburbs, and it’s where his father Terry still lives.

Salisbury Park’s a bit of a drive from the city’s CBD and not easy to find for the first time in the dark. Yet when Background Briefing finally arrives one night recently, he’s waiting out on the front porch. And over a cuppa in the kitchen, he remembers when he last spoke with his son.

Terry Hicks: It was early November, 2001. David rang us via satellite phone. He said he was in a ditch with some other people outside Khandahar, which was being bombed by the Americans at that stage, and he did tell us that he was off to Kabul some time that day to defend Kabul against the Northern Alliance. I did ask him a question about September 11th, and he hadn’t heard anything about that at all. I don’t think he truly understood the situation as it was or the situation that changed from Taliban to Northern Alliance. He was a worried boy; he was wondering what was going to happen next. But after that telephone call of course we never heard from him until the government agencies contacted us. It was a short conversation. I did tell him that someone had flown some aeroplanes into a couple of buildings in New York, and he just said ‘It sounds like Western propaganda’, and that was his answer. So yes, he didn’t know anything about that.

Helen Thomas: Before that call, had you known he was in Afghanistan?

Terry Hicks: Well we weren’t sure. We knew he was in Pakistan. We don’t know what the reason was for going to Afghanistan, we don’t know that at all. Until we hear from David himself, then hopefully one day we’ll get the full story.

Helen Thomas: When we visited Terry and his wife Bev, George Bush had not yet put their son on any list, at least not publicly. They both seemed somewhat inured to the official silence about his future, resolute in their support for the 28-year-old, but at times not far from tears.

His son was always a bit of a handful, Hicks Snr recalled, but nothing too out of the ordinary. Certainly nothing flagged the great leap from jackarooing as a teenager, to fighting for Islam in his 20s.

Terry Hicks: He went over to Pakistan to study the Muslim religion. He’d converted to Moslem. Apparently a lot of people do end up in Afghanistan, which is one of the oldest Muslim countries, so whether that took him across there, we don’t really know.

Helen Thomas: Tell us a bit about David as a kid. He left school at 14, and went away up north to jackaroo, is that right?

Terry Hicks: That’s right. Yes David spent a lot of time up north. He went to the Catherine Rural College for 12 months, and then from there he went onto the stations. He spent a lot of time in the Gulf of Carpentaria. Now a lot of this time was spent on his own, or with Aboriginal jackaroos as well that he was looking after. So I suppose all this stood in good stead for David for what was happening now, because he was in isolation where he was up north, so I should say the mind would be able to cope to a certain extent with that isolation.

Helen Thomas: It has been written that he was always a bit of a handful as a kid, is that right? Did he give you trouble when he was growing up?

Terry Hicks: A lot of people say that, but when you talk to people when their kids were growing up, they had the same problems. So I think all kids go through a stage when they’re growing up of wanting to be independent. David was very independent, and we had our ups and downs with David in the early days, but later on, he pulled himself together and straightened himself out. But even when he was in trouble, he was still a good guy.

Helen Thomas: One does get the impression that he seemed to be searching for something, like he was always on the move a bit, from jackarooing to working in the rodeos, to chicken boning, kangaroo skinning; is that a fair assessment? Was he looking, was he always on the move?

Terry Hicks: Yes, David’s always been like that right through, even when he was a toddler I think he’d never stand still, he was always going somewhere, or checking things out.

Helen Thomas: What was he looking for, do you reckon?

Terry Hicks: Well we don’t know, he’s never ever said. He wanted to see what was over the other side of the hill.

Helen Thomas: Louise Fletcher, a friend of David’s lives just a few streets away from the Hicks in Adelaide, and she remember that same spirit of adventure.

Louise Fletcher: We used to go out fishing, go to rodeos, we used to go out looking for gold.

Helen Thomas: Looking for gold?

Louise Fletcher: Yes, we went like gold prospecting. We went to the library and got heaps of books and read up, and we went to the Council and to the library and got all the land surveys, studied all about alluvial deposits and how the gold was formed and stuff. Went out, took the gold detector out there, tried to find gold, we didn’t find anything but. And went up to the hills and had a look in old gold mines and stuff.

Helen Thomas: And was that David’s idea?

Louise Fletcher: Yes, but I got right into it with him though, it was fun.

Helen Thomas: And did he read a lot? You said he went to the library and dug out books relating to finding gold, what about other books, did you spend much time in the library?

Louise Fletcher: No, not really. It’s just when he got a bit of a thing happening, he’d go out there and study up on it as much as we could, and then we’d go out and do it.

Helen Thomas: So he’d have real passionate interests in life?

Louise Fletcher: Yes, he did, yes.

Helen Thomas: Even those closest to this wanderer with a newfound faith, notorious now as Australia’s ‘suspected Taliban fighter’, can’t really explain what’s led to his present predicament.

Kerry and Carl Cripps have been friends with Hicks for about 15 years. But the couple insists they saw no dramatic change in him.

Kerry Cripps: Well the day that we met David, it was the same like the last time that we seen him basically.

Helen Thomas: And when was the last time you saw him?

Kerry Cripps: It would have been when he come back from Kosovo I think it was.

Helen Thomas: Did he talk to you at all about his experiences over there?

Kerry Cripps: No, not really. He seemed a little bit quieter than what he’s normally like.

Helen Thomas: So, nothing between that point and when I guess you opened the papers or turned the radio or television on and heard that he’d been picked up in Afghanistan?

Kerry Cripps: Yes, that was the first bit of news that we had had since like the last time that we seen him… Like we were sort of totally blown away when we seen that.

Helen Thomas: A shock?

Kerry Cripps: Oh yes, total shock.

Carl Cripps: I think somewhere along the line he’s been misled, I think anyway. And he’s just been in the wrong place at the wrong time. He never ever spoke ill of anyone, never like fought with anyone, he just seemed like a really good fellow to get along with.

Kerry Cripps: Kept to himself.

Carl Cripps: Yes, just kept to himself all the time.

Kerry Cripps: Yes, he never spoke to us about war or about even guns. So that’s what sort of shocked us is that he was like a typical Aussie fishing man who’s gone to fight in them wars, it’s just out of character, it’s just not him, you know.

Helen Thomas: How long can David Hicks and the 679 other detainees be held without charges being laid without access to counsel? And how does this scenario sit overall with the much-lauded Geneva Conventions?

Like any bible, the Convention’s six treaties are open to interpretation. And the status of the detainees in Cuba is just one point of major disagreement. Are they prisoners of war? Or illegal combatants?

In Canberra, Hilary Charlesworth is Director of the Centre for International and Public Law at ANU.
"The term ‘illegal combatants’ doesn’t mean anything at international law, it’s a term used by the United States... I think essentially to evade the effect of international law that’s relevant to prisoners of war." Hilary Charlesworth: Well the term ‘illegal combatants’ doesn’t mean anything at international law, it’s a term used by the United States, they sometimes also say ‘enemy combatant’, I think essentially to evade the effect of international law that’s relevant to prisoners of war. So it’s something that is favoured by the United States because they believe that using that term will avoid the effects, particularly of the Third Geneva Convention.

Helen Thomas: And why is that so important?

Hilary Charlesworth: Well the Third Geneva Convention which is one of the really basic building blocks of what’s called international humanitarian law, and that’s the law that’s relevant to the conduct of hostilities, this is the Third Geneva Convention is one of four Geneva Conventions adopted in 1949 by the world community. The United States is a party to the Third Geneva Convention, as is Iraq, Afghanistan, in fact I can’t think of one country that isn’t a party to the Third Geneva Convention, and essentially that sets out the rules applicable to prisoners of war. Now if somebody is determined to be a prisoner of war, if somebody’s a prisoner of war, they have a suite of protections. They can be detained during the conduct of the hostilities, but for example, they have to be detained in a humane manner. But I think the reason why the United States is particularly anxious, if you like, to avoid having the Geneva Convention apply to the people they’re holding at Guantanamo Bay, is because they want to avoid the provisions of the Geneva Convention that deal with the right to a fair trial.

Helen Thomas: Sir Adam Roberts, a Professor of International Relations at Oxford University, believes both sides of this great legal divide have been short-sighted.

Adam Roberts: Well there’s been a tendency on both sides to assume something rather simple, which is that either the detainees at Guantanamo count as prisoners of war, or they essentially count as sort of falling off the map, as outside the formal limits and controls of the laws of armed conflict, and that seems to me to be a mistake, and actually I would say both sides, both the United States government and the humanitarian bodies such as the International Committee of the Red Cross, have withdrawn a bit from that earlier sort of rather Manichean, sort of extremist view that they are either one thing or they’re nothing. And there’s been a tendency to recognise that some law does apply to the situation that they are in.

Helen Thomas: And what is that law?

Adam Roberts: Basically I think it’s now widely agreed that many of the prisoners, I wouldn’t say all, but many don’t meet the criteria for being a prisoner of war, but equally it’s a bit absurd to say that absolutely no law applies to their detention, and the clearest body of law that does apply to them without any serious doubt, is a part of the additional protocol to the Geneva Conventions, which was drawn up in 1977, which contains a mini convention, Article 75, that’s specifically addressed to people who aren’t either prisoners of war or are classified as civilian detainees, and sets out at quite some length, the minimum standards applicable to them. And that I think is increasingly recognised as one, but not the only, basis of the application of law to the prisoners in Guantanamo.

Helen Thomas: So, how can this all-important distinction be made? Sir Adam.

Adam Roberts: There are people who were Taliban fighters, and in respect of the people who fought for the Taliban, there’s no doubt that there’s a more serious argument that they ought at least to be entitled to consideration as prisoners of war. There might be particular reasons why they don’t get there, such as not having a proper command structure perhaps, or not observing the laws and customs of war perhaps; possible ground why they might not be prisoners of war. But on the whole, it’s widely accepted that some Taliban might merit consideration for that, and there is a procedure in the Geneva Conventions for that. But for the rest, and especially for the al Qa’eda detainees, there’s not much doubt that they don’t, as it were, cut the mustard as being prisoners of war. But nonetheless, the world is very concerned if it’s felt that they’re being held with no legal restraint whatsoever in respect of how they’re held, or the duration of their holding or whatever.

Helen Thomas: It’s apparent why such distinctions are so crucial to Stephen Kenny, the much-quoted Adelaide-based lawyer for David Hicks.

Stephen Kenny: Well if he was a member of al Qa’eda, he may be guilty of a conspiracy to commit a terrorist act, and that in itself is a criminal offence. If he has gone and joined the Taliban, which the family suspect, although we’ve never spoken directly about it, so we don’t really know. But let’s assume that he joined the Taliban. At the time he joined the Taliban it was pre-September 11, well that’s when he went to Afghanistan at least, I should say. And the Taliban were the government of the country, so he joined the army of the government of another country, and that is not illegal. I mean there are Australians in the British Army, the English Army, the French Foreign Legion, and probably a dozen other armies around the world. And that is not an offence and it should not be an offence.

Helen Thomas: Are you confident that you know what he was doing when he was detained, when he was well, I guess, taken by the Northern Alliance?

Stephen Kenny: No, all I can do is rely upon reports from the newspaper. I’ve not been able to speak to David, and no-one’s been able to speak to him directly, so we don’t have that answer until we do. But the newspaper reports are that he was in the back of a pick-up with about nine or ten other men. He was spotted as a foreigner at a road block, he was unarmed, he was hauled out of there, and held by the Northern Alliance, presumably because the Americans were offering $5,000 a foreigner that was found in Afghanistan.

Helen Thomas: We were talking before about the importance, the significance I guess of perceptions, in not just the media but perceptions I guess in a community sense. What’s your understanding of how most people living in Adelaide, if not right across Australia, feel about David Hicks?
"I’ve had people who have come up to me and have said, Look, I don’t like the bloke David Hicks, but what they’re doing to him is wrong." Stephen Kenny: I think most people would say he’s an idiot, that they would never go and support the Taliban, and they have no truck with his cause. Now I don’t think that’s a problem with that. But what they do say and I can tell you that I’ve had people I know to be dedicated Liberal party voters in the country, who have come up to me and have said, Look, I don’t like the bloke David Hicks, but what they’re doing to him is wrong. And I think that’s what most Australians understand.

Helen Thomas: In Washington, David Cole worries about much that’s happened since September 11. He’s a Professor at Georgetown University’s Law Centre.

David Cole: At home too, we have I think sought to strike the balance between liberty and security by selectively targeting foreign nationals and imposing burdens on them that we the citizenry would not tolerate, and one example is a mass campaign of preventive detention, a kind of dragnet sweep that took place after September 11th, which was recently reported on by the Justice Department’s own Inspector-General who found that the government went out and picked up over 700 foreign nationals in the aftermath of September 11th, held them on various technical immigration charges, but held them, detained them, without bond, without regard to whether they had any evidence that they were actually dangerous or actually connected to terrorism or actually at risk of flight, kept them locked up even after their immigration cases were resolved in many instances, solely for the purpose of keeping them locked up while the FB I continued to investigate them. And at the end of the day, virtually everyone of these 762 individuals was cleared of any connection to terrorism by the FBI. That is, they were innocent of any ties to terrorism. Not a single one was charged with any terrorist crime whatsoever. And yet they were treated as presumptively as terrorists, locked up as terrorists, held in maximum security, shackled whenever they went out, held in isolated 23-hour lock down conditions. Worse treatment than we accord to many convicted murderers, and these people were never charged with a crime at all, much less a crime of terrorism. If that had been done to Americans, I think the Attorney-General would not have his job today.

Helen Thomas: You have written that Guantanamo is the perfect symbol of what the Bush Administration wants generally in this war on terrorism, that is the authority to act without the constraints of law. How so?

David Cole: Well they have essentially asserted the authority to pick up any person anywhere in the world to declare him an enemy combatant and to put him on Guantanamo if he’s a foreign national, to hold him in the United States if he’s an American. But in either event to deny these individuals any access to a court, any kind of a hearing, to hold them incommunicado indefinitely, for as long as the war on terrorism goes on, which is likely to be certainly for the rest of our lives.

Helen Thomas: Of course the longer the situation drags on at Guantanamo Bay, the easier it is for rumours to swirl, about what David Hicks especially did and didn’t do, and what is and isn’t being planned at the military base. Has Hicks had surgery in the past couple of months? Has a little plea bargaining occurred with the six detainees deemed ‘eligible for trial?’

It’s a black hole, with little public light shining in, or out.

John Howard: The Americans have argued, they’ve made a decision about having a military commission to try these people. That is a decision that they are applying in relation to the nationals of all countries. They regard these people as enemy combatants. I mean bear in mind the claim is, and he acknowledges it, that he trained with al Qa’eda.

Reporter: Yes. And I notice that the foremost expert on al Qa’eda says Look, he’s more significant than we thought he was at first.

John Howard: Well yes, I mean that is just the view of that man.

Reporter: It’s an allegation.

John Howard: It’s an allegation, I’m not saying it’s right or wrong, but what is not an allegation is because the man in question has admitted it, is that he trained with al Qa’eda.

Helen Thomas:

Prime Minister John Howard on ABC Radio in Melbourne last week.

This is certainly not a new position for the government. When David Hicks was captured in December 2001, the Attorney-General alleged he had ‘undertaken more training’ than American John Walker Lindh. And despite Darryl Williams’ more recent assurance that the government has always had an over-riding concern for Hicks’ welfare, the Prime Minister’s insistence of his admission, troubles the detainee’s lawyers and family.

Joe Margulies, who’s working with New York’s Centre for Constitutional Rights on a Supreme Court challenge over the alleged lack of due process for Hicks and two other prisoners, isn’t sure his client trained with al Qa’eda, or has admitted such a fact.

Joe Margulies: Oh no, we certainly don’t know it, nor do we know whether he said it, and the government hasn’t released any information to that effect, and there haven’t even been allegations to that effect in this country. But I guess what I would observe about that is this: Since we’re talking about a possible death penalty prosecution, I think that the Prime Minister would do well to study the American experience with the death penalty in the modern era. Just since the death penalty was reinstated in this country, there have been over 100 exonerations, that is, innocent people who were convicted and sentenced to die, and later found to be innocent and released from custody. And that’s in a system that has the most extensive set of due process protections in the world. What we have in David’s case is a person who’s been held, incommunicado, in isolation for over 18 months, interrogated at will by the United States, and finally the choice was put to him thusly: ‘David, you can stay here forever as this “enemy combatant”, and held indefinitely in the same kind of detention, or possibly be subjected to a trial that could lead to a death sentence, or you can acknowledge some role with al Qa’eda, perhaps having trained with them. If you do, if you take the latter course, you’ll receive some period of time, some sentence, and when you’re done, you can go home to Australia.’ Well under those circumstances, any rational person could very well confess. And those are circumstances where a statement like that would never be admitted in an Australian court, or an American court. And any suggestion that that’s a free and unfettered and therefore reliable statements is just false.

Helen Thomas: But you don’t know for sure that that scenario has happened, you’re just making the suggestion that it could have happened.
"If the choice is put to people, confess to secure your release, maintain your innocence and remain incarcerated indefinitely, then a reasonable person could well confess, and confess falsely." Joe Margulies: Well no, there are certain things we do know. We do know that the government has taken the position that they can, and they have held these people for 18 months incommunicado, we know that they have interrogated them repeatedly, we know that they claim that they can hold them indefinitely under those circumstances, and we know that now they’re bringing criminal prosecutions that are supposedly, at least according to press reports, supported by ‘confessions’. So we know enough to know that there is substantial reason to question the circumstances behind any such confession. And we’ll know more in time, but if the choice is put to people, and I stress that if the choice is put to people, confess to secure your release, maintain your innocence and remain incarcerated indefinitely, then a reasonable person could well confess, and confess falsely.

Helen Thomas: But what’s this attorney’s biggest concern?

Joe Margulies: That people won’t care. That people will conclude either because they feel safer about it, or because they lack the information to question the government about it, or that because it’s out of sight, out of mind, it’s on an island 90 miles south of Florida and who knows what goes on down there, because no-one can get access, and that people may be comfortable with it persisting for an indefinite period. I mean that would be a tragedy in the United States.

Helen Thomas: Background Briefing’s Co-ordinating Producer is Linda McGinnis; Technical production from Angus Kingston; and our Executive Producer, Kirsten Garrett. I’m Helen Thomas, and you’re listening to ABC Radio National.