Issue 4, January 2007 | Heather Millar

Good vs Evil: The Surprising Truths Behind the Detention of David Hicks

A presentation by Major Michael Mori on the 9th of November in Perth, organised by The Australian Lawyers’ Alliance, addressed the issue of David Hicks’ continued detention. The presentation confirmed what most people in the audience probably already knew. The United States is shadowboxing. Threatened by an enemy which it cannot find, track or engage, the US Government has acted rashly, illegally and immorally. The evidence suggests it has tortured. Legal analysis suggests that the world’s remaining superpower has breached its international obligations. Its administration has openly condoned cruelty while its Congress has legislated for fundamental violations of common law protections. Australian David Hicks experiences the consequences of these acts everyday.

The case against the Bush Administration is not difficult to establish and Major Michael Mori’s presentation outlined the facts sharply. Hicks was detained without charge for over 2 years between 2002 and 2004. The charges against him – none of which allege violence – are unprecedented in the law of war and completely without domestic or international statutory grounding. They have been constructed wholly in order to charge the so-called ‘enemy combatants’, a concerning reality given the law’s abhorrence of retrospective criminal laws. Furthermore, the commissions in which he was to be tried ignored the most rudimentary elements of natural justice. They breached international and American principles of fair trial, as well as the most fundamental rules of evidence, and were eventually deemed unconstitutional by the United States Supreme Court.

Despite the Supreme Court ruling this, Hicks remains detained in a ‘Super Maximum Security’ internment facility. His treatment parallels that of the most violent convicted criminals in America. He has not been convicted. Indeed, when he will be tried remains uncertain. As a consequence of the Supreme Court’s frank determination of the previous charges as unsupported by the law of war, new charges will likely be laid against him; their nature however remains unknown. What is known is the nature of the new commission which will try Hicks. Like their predecessors they will deny him natural justice and neither he, nor his counsel, will be able to cross-examine his accusers. They will run counter to the most fundamental rules of evidence by allowing testimony obtained by coercion and torture. Hicks’ most basic legal rights, including the writ of habeas corpus – permitting a detained individual to challenge the legality of their detention before a court – have been removed.

Major Mori was careful to note that these latter violations of Hicks’ civil liberties are not the fault of a bloodthirsty Secretary of Defence, or a tyrannical executive; rather they are the result of legislation passed by the Congress of the United States. The due democratic functioning of the United States government saw Congress in October of 2006 – conscious of an approaching election and comforted by the fact that the legislation would only affect non-American citizens – pass the unprecedented and thoroughly oppressive Military Commissions Act. The checks and balances, so fundamental to the US system of government, do mean that the new legislation will be questioned before superior courts, prior to its effect being felt by individuals such as Hicks. The sting is that while these appeals are made Hicks remains confined, 23 hours a day, in a maximum security cell. Mori suggested that the appeals would be at least a two year process.

The US has behaved reprehensibly, the Bush administration’s actions have amounted to utter moral defilement of their nation and Hicks suffers daily in the equivalent of a modern day gulag. Ironically though, Mori’s presentation revealed, that the democratic system in the US continues to function, albeit in an attenuated fashion. His presence in Perth and his outspoken criticism of the hypocrisy of the administration demonstrate that, for all its manifest flaws, the current American regime is, domestically at least, no tyranny. Moreover, Mori reminded the audience that many ordinary soldiers and functionaries – in Iraq, in Guantanamo Bay, in the Federal Courts – are good and kind people and the circumstances of the ‘war on terror’ do not allow easy moral certainties. Far from a pin-up for radical dissent, Mori is clearly a patriot; an ordinary man, doing his job honourably.

International law must also accept responsibility for the situation of David Hicks. It has been crafted in such a way that Hicks is capable of being punished by it on the one hand – as an ‘unprivileged belligerent’ – without being protected by it on the other – because he is purportedly not a recognised POW under the Geneva Conventions. The law of war was designed to protect civilians and establish guidelines for warfare, and while there is no doubt the international legal system has been manipulated by the United States, the fact remains that it was open for such gross and devastating manipulation. International law lacks the safeguards and established infrastructure to protect those who are now, arguably, its greatest victims – ‘enemy combatants’  such as Hicks. It has created a means by which Hicks could be charged; it is the basis of the ideas of universal jurisdiction and customary international law which are so crucial to the trial of ‘enemy combatants’. International law has failed, however, to simultaneously create a means by which ‘enemy combatants’ can be protected.

Mori also unflinchingly – though with unfailing politeness – pointed the finger at the Federal Government of Australia as in large part responsible for Hick’s wretched situation. Numerous nations, from the influential United Kingdom, to hardline Iran, have requested that their citizens who have been detained by the United States, be returned home. Many of these requests have been met. Australia alone has refused to require that its citizens be repatriated; we are the only country which has supported the United States’ detention and military commission process. Even in the US, Mori and others have appealed against the incarceration and the military commissions and the United States Supreme Court has been vigilant in protecting the rights of the detainees and upholding the constitution. In contrast the Supreme Court’s decision that commissions were unconstitutional only lead the Australian government to re-emphasise its confidence in the US administration and its ability to devise a new, legitimate means by which to try the detainees. Far from accepting their role as advocate and protector of Australians abroad, the Australian government has preferred to maintain an obsequious status quo.

Mori believes that if requested by the Australian Government Hicks would be returned to Australia. The Australia Government, however, prefers to allow the gross and consistent violation of Hick’s human rights. Mori’s presentation demonstrated that the failings of international law, and the US’s abrogation of common law rights, have undeniably resulted in hundreds suffering at the hands of American forces. Nonetheless, his most blunt and chilling conclusion was that Australia alone must accept responsibility for Hick’s ongoing suffering. Regardless of how one feels about Hicks himself, the fact that our government would allow one of its own to be indefinitely incarcerated is a devastating indictment on its morality.