The Punishment of David Hicks
by Alfred McCoy
On or about 11 January 2002, a small, slender 26-year-old Australian named David Hicks, recently captured fighting alongside the Taliban in Afghanistan, was one of the first detainees flown to Camp X-Ray at Guantanamo Bay, Cuba. As a high-school dropout, former drug addict, sometime car thief, mercenary soldier in Kosovo, Taliban fighter against America, graduate of four Al Qaeda terrorist-training courses and an unconvincing convert to radical Islam, Hicks seemed to many the despicable face of global terror.
Within days, US Defense Secretary Donald Rumsfeld branded the 700 Guantanamo detainees “hardened criminals willing to kill … for their cause” and swore to keep them there indefinitely. Prime Minister John Howard seconded that view, saying of Hicks: “He knowingly joined the Taliban and Al Qaeda. I don’t have any sympathy for any Australian who’s done that.” On 18 January, Attorney-General Daryl Williams backed the prime minister’s position: replying to a plea by Hicks’s father for Australia to “arrange contact between David and his family”, Williams said this was “ultimately a matter for the United States”. While the UK would soon recoil from harsh conditions at Guantanamo and demand repatriation of all nine of its nationals, Howard led his countrymen in washing their hands of Australia’s two Guantanamo detainees, Hicks and a later arrival, Mamdouh Habib.
From the start, a handful of American and Australian civil libertarians realised the dangers of Guantanamo. Only days after Hicks reached the camp, attorney Michael Ratner, of New York’s Center for Constitutional Rights, decided that he had to defend the Australian – no matter how unpalatable his record might be – because his status as an “unlawful combatant” threatened the rule of law at home and abroad. (“When it became known that I was representing him,” Ratner recalled, “I got the worst hate mail I have ever received. I got letters asking me why I didn’t just let the Taliban come to my house and eat my children.”) Similarly, when Hicks’s trial started before Guantanamo’s controversial military commission, Melbourne QC Lex Lasry warned: “This is much less about David Hicks than it is about … Australia’s own moral authority … if it continues to condone this process as ‘fair or just’.”
Though they were just two among 700 detainees, these Australians soon achieved extraordinary significance for both advocates and opponents of Bush’s anti-terror tactics. The case of Mamdouh Habib would become, when reported by the New York Times in 2005, a chilling cautionary tale about the capricious use of rendition and torture as secret weapons in the War on Terror.
For his part, Hicks was singled out for the most extreme form of sensory deprivation: eight months of total isolation in a windowless cell at Camp Echo, a clutch of wooden shacks used by the CIA for the psychological torture of “high-value” detainees. Among hundreds of prisoners, he was also the first picked, on White House orders, to test its new military commissions.
Most importantly, Hicks was one of the few to resist Guantanamo’s devastating mix of interrogation and isolation, and persevere, without compromise or confession, in a habeas corpus action that would later become the landmark Supreme Court case Rasul v Bush. Starting only weeks after detainees arrived at Guantanamo, Michael Ratner fought the case on behalf of Hicks and two British detainees, Asif Iqbal and Shafiq Rasul, through lower courts, challenging President Bush’s right to hold these prisoners indefinitely as “enemy combatants” without civil or human rights: an argument that the Supreme Court would affirm, two years later, in a stinging rebuke to the president’s policy.
Stripped of all rights as an “unlawful combatant”, isolated inside a concrete cell, abandoned by his homeland and pushed to the brink of suicide, David Hicks has somehow managed, despite his utter powerlessness, to defy the world’s most powerful person, George W Bush. His tenacious resistance to months of psychological torture has denied the White House a potent confession that would legitimate its regime of inhumane interrogation and extralegal incarceration. One could even say that, whatever Hicks might have been before he reached Guantanamo, his four-year stint of brutal beatings, endless solitary confinement and mock trials has transformed him into an unlikely symbol for the sanctity of human rights. For what was done first to this outcast, reduced to little more than a lab rat, could, as we would soon learn, also be done to others.
Indeed, in April 2004, as David Hicks was entering his tenth month in solitary confinement at Guantanamo, forgotten by Canberra, the world got its first glimpse of detainee treatment when CBS broadcast the now-notorious photographs from Abu Ghraib prison showing Iraqis naked and hooded while US soldiers stood smiling. As the scandal grabbed headlines around the globe, Secretary Rumsfeld assured Congress that the abuse was “perpetrated by a small number of US military”. Yet the photos were not actually snapshots of simple sadism by a few ‘bad apples’. Rather, they reveal innovative CIA torture techniques that have metastasised inside the US intelligence community over the past half-century.
Just as the significance of Hicks’s seemingly bizarre treatment becomes clear when seen through the lens of CIA torture techniques, so too do the horrific experiences of these two Australian detainees provide a unique way to penetrate the faceless crowd at Guantanamo, and to grasp the human cost of the secret system of US prisons that Amnesty International has called the “gulag of our times”.
After his address to a shaken nation on September 11, 2001, President Bush gave his staff secret orders, saying: “I don’t care what the international lawyers say, we are going to kick some ass.” In the months that followed, administration attorneys devised three controversial legal doctrines to translate their president’s otherwise unlawful orders sanctioning torture into lawful policy.
Drawing on conservative legal theory, White House lawyers such as Antonio Gonzales argued that the president, as commander-in-chief, could override laws and treaties to render the Geneva Conventions “quaint”. In a second doctrine (eventually repudiated after public pressure), Assistant Attorney General Jay Bybee found grounds, in an August 2002 memo, to exonerate any CIA interrogator who tortured a prisoner if he later claimed his intention was to extract information rather than inflict pain. Moreover, by parsing the UN and US definitions of torture as “severe” physical or mental suffering, Bybee argued that pain equivalent to “organ failure” was legal – effectively allowing torture up to the point of death. Finally, as the administration began collecting terror suspects at Guantanamo, Justice Department lawyer John Yoo argued that this US Navy base was not on US territory and was thus beyond the writ of US courts.
Less visibly, the administration began building a global system for torture at Abu Ghraib, Guantanamo and at least eight CIA “black sites”. After the president signed a classified order soon after 9–11 giving the agency “new powers” to detain captives on its own, Washington negotiated supporting agreements for secret prisons in Thailand Diego Garcia Island Afghanistan and Eastern Europe. When harsh physical techniques were needed, the CIA, continuing a practice used against Al Qaeda suspects since the mid-1990s, engaged in “extraordinary rendition” by flying detainees to allied nations notorious for torture: Morocco, Egypt, Jordan, Syria and Uzbekistan. Knitting this far-flung prison network together, the Agency shuttled its captives around the globe in a fleet of two-dozen jets operated by front companies, which made some 2600 rendition-related flights between 2001 and 2005. And inside the long established US base at Guantanamo Bay, the CIA operated “Camp Echo” – where David Hicks would later suffer his eight months in solitary – an “off-limits” cluster of a dozen concrete-block houses, each with a “steel cage, a restroom, and a table for interviews”.
Defense Secretary Rumsfeld crafted conditions for Guantanamo that, in the view of Hicks’s chief US attorney Joshua Dratel, made it a “physical and legal island” where Washington could do whatever it wanted. In a series of controversial orders Rumsfeld denied detainees protection under the Geneva Conventions, convened military commissions that mocked US standards of justice and issued secret instructions for inhumane interrogation. Above all, by authorising extreme techniques beyond the Army Field Manual and assigning a handpicked general to carry out his commands, Rumsfeld transformed Guantanamo into an ad hoc behavioural laboratory, and its inmates into involuntary subjects for human experimentation that refined the CIA’s psychological torture paradigm.
As the first Afghan captives started arriving at Guantanamo on 11 January 2002, Rumsfeld denied them legal status as prisoners of war, saying: “Unlawful combatants do not have any rights under the Geneva Convention.” Although he soon branded them “the worst of the worst”, a study by Seton Hall Law School later found that 86% of prisoners in the Pentagon’s inventory were arrested not by US forces, but by Afghan and Pakistani mercenaries eager for the $5000 bounty on each captive advertised in airdropped leaflets that invited locals to “inform the intelligence service and get the big prize”. While there are, no doubt, some hardened Al Qaeda members at Guantanamo many prisoners are hapless tribals or peasants brought in by bounty hunters: not the worst of the worst, but rather the least of the least.
In October 2002, after just ten months of Guantanamo’s operation as the chief prison for the War on Terror, the Pentagon removed General Rick Baccus as commander, following complaints from military interrogators that he “coddled” detainees by restraining abusive guards. Appointed in November, with Pentagon orders to get tough and get information, General Geoffrey D Miller would hold the post during a critical year, developing new doctrines for harsh interrogation.
To facilitate this work, Guantanamo interrogators asked the Southern Command chief, General James T Hill, for more latitude to interrogate potential assets such as the camp’s most valuable prisoner, Mohamed al- Kahtani, a 26-year-old Saudi dubbed “the twentieth hijacker”. In support of their request, General Hill attached a memo from Guantanamo’s Joint Task Force 170 recommending: first, “stress positions (like standing) for a maximum of four hours”; second, “isolation facility for up to 30 days”; third, “deprivation of light and auditory stimuli”; fourth, hooding; fifth, “use of 20-hour interrogations”; and, finally, “wet towel and dripping water to induce the misperception of suffocation”. In sum, these orders simply refined the two foundational techniques for psychological torture developed by the CIA during the Cold War: sensory deprivation and self-inflicted pain.
Consequently, in early December Rumsfeld “approved” 16 techniques beyond the 17 already allowed in the US Army’s standard interrogation manual, FM 34-52, written in the early 1990s to comply with the Geneva Conventions. These orders had a devastating impact on their first target, al-Kahtani, who, for 50 days from November 2002 to January 2003, was subjected to 20-hour interrogation sessions spiked by novel psychological pressures. After guards filled al- Kahtani’s bladder full with over three bags of intravenous fluid, they denied him a toilet break until he answered questions. When his replies proved unsatisfactory, interrogators made him urinate in his pants. Playing upon Arab attitudes toward dogs, the Guantanamo guards, in their entry for 20 December 2002, wrote: “Began teaching the detainee lessons such as stay, come, and bark to elevate his social status up to that of a dog. Detainee became very agitated.”
However, within weeks the Navy’s general counsel, Alberto J Mora, learned of this abuse from his investigators at Guantanamo and objected strenuously that the techniques authorised by Rumsfeld “could rise to the level of torture”. In a series of sharp questions, whose prescience was soon felt by David Hicks, Mora asked: “What did ‘deprivation of light and auditory stimuli’ mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer?” This protest forced Rumsfeld to suspend the procedures while a working group debated them. Adopting a deceptive ‘two-track’ policy of publicly abjuring abuse while issuing top-secret orders for torture, the working group produced a confidential memo in March, concealed from Mora and other military lawyers, that affirmed the use of extreme interrogation.
In April, therefore, Rumsfeld restored the wide latitude for Guantanamo interrogators, albeit with a few new restrictions, sanctioning seven methods beyond the 17 in the Army’s manual, including “environmental manipulation”, “reversing sleep cycles from night to day”, and isolation for up to 30 days. Through back channels, General Miller was briefed about these new guidelines and his military intelligence units at Guantanamo soon adopted a “72-point matrix for stress and duress” using “harsh heat or cold; withholding food; hooding for days at a time; naked isolation in cold, dark cells for more than 30 days, and … ‘stress positions’ designed to subject detainees to rising levels of pain”.
David Hicks was one of the first to learn the real meaning of Rumsfeld’s orders for “deprivation of light and auditory stimuli”. By the time he felt the full effect of these enhanced psychological methods in July 2003, Hicks had already suffered eighteen months of extreme treatment. After a Northern Alliance warlord sold him to US Special Forces for $1000 in mid-December 2001, Hicks was packed into the brig of the USS Peleliu in the Arabian Sea. From there he was twice flown to a nearby land base for ten-hour torture sessions, shackled and blindfolded, which were marked by kicking, beatings with rifle butts, punching about the head and torso, death threats at gunpoint and anal penetration with objects – all by Americans. For the daylong military flight to Guantanamo, Hicks was wrapped in the standard sensory-deprivation package of drugs, earmuffs, goggles and chains.
During his first year in the general prison population, Hicks was, according to a court affidavit, subjected to regular sleep deprivation, forced “to run in leg shackles that regularly ripped skin off my ankles”, handcuffed for up to 15 hours so tightly that his arms were numbed, and offered enticements to co-operate, including promises of time with prostitutes and even eventual repatriation to Australia. Fellow detainees Rasul and Iqbal felt Hicks was singled out for “aggressive” treatment, with constant cell changes to deny him human support and almost daily interrogations that slowly made him “more willing to co-operate”.
After a few months of similar abuse, the “American Taliban”, John Walker Lindh, Hicks’s alleged comrade-in-arms from Afghanistan, capitulated in July 2002. To avoid a life sentence, Lindh pled guilty to “aiding the Taliban terrorist regime”, retracted all “charges that he was mistreated while in military custody”, and promised to co-operate “fully, truthfully and completely” with intelligence officers.
Yet even Hicks’s first eighteen months of harsh treatment could not have toughened him up sufficiently for what would happen next: an extreme application, almost unprecedented in its severity, of the CIA’s established sensory-deprivation torture technique involving eight months of strict solitary confinement. On 9 July 2003, as his case before the military commission was starting, Hicks was transferred to Guantanamo’s Camp Echo and isolated inside a closet-sized, self-contained cell designed to deny its occupant all stimuli.
During the next 244 nights and days without sunlight, watched around the clock by silent guards, Hicks found his human contact restricted to weekly visits by the Muslim chaplain, and far less frequent conferences with his civilian and military attorneys who were, significantly, given access solely to extract a guilty plea. The chaplain, an austere West Point graduate named James Yee, limited his conversation to questions of Islamic doctrine and recitation of Arabic prayers. For infrequent meetings with attorneys, Hicks was moved just a few feet from his cell into an adjacent common area and shackled, by steel chains about hands and waist, to a bolt in the floor. Family letters that passed military censors had all expressions of love or support blacked out: evidence of a carefully calibrated psychological strategy of crushing Hicks’s will and forcing him to capitulate.
Under these extreme conditions, Hicks lost 30 pounds from an already lean frame. He read a recondite thousand-page Islamic legal commentary, one of the few books allowed, seven times. Denied any sense of time, he experienced “extreme mood swings” almost hourly. He began to contemplate suicide by smashing his skull against the walls of his cell. Yet he somehow survived and refused to give in or confess. By the time he gained access to civilian counsel in early 2004, his American attorney, Joshua Dratel, found Hicks at the brink of despair: so withdrawn that he was obsessed with the minutiae of his surroundings, almost unable to comprehend the reality of his trial and the larger issues at stake.
The apparent aim of such sensory deprivation, one of the longest on record since the CIA adopted this torture technique fifty-odd years ago, was to force a guilty plea and an end to Hicks’s habeas corpus petition in the US courts. After the confession of John Walker Lindh, identified as “Detainee 001” on the Pentagon’s roster, Guantanamo’s jailers had apparently moved to win another poster boy for their anti-terror regime by breaking “Detainee 002”, David Hicks. Indeed, Michael Ratner remains convinced that Hicks was picked as the first tried by the military commissions because his jailers “thought they could make a deal” with a prisoner weakened by months of solitary confinement.
Under similar – albeit less severe – treatment, Hicks’s fellow habeas corpus litigants, Rasul and Iqbal, made confessions. After three months of solitary confinement, broken only by 12-hour interrogations with painful short-shackling, freezing air-conditioning, strobe lights and blasting music, the two English nationals confessed and identified themselves, falsely, as faces in a crowd of 40 Jihadists seated before Osama bin Laden in a pre-9–11 video. But London, under pressure from angry protests and a petition by some 200 parliamentarians, soon intervened, pressing Washington for the repatriation of all nine of its nationals. Consequently, in September 2003, a British MI-5 agent arrived at Guantanamo with irrefutable evidence that Rasul had been working in a British electronics shop at the time he confessed to being in Afghanistan with bin Laden. In March 2004, the nine British detainees were flown to London and released within 24 hours, leaving Hicks the last litigant standing.
An FBI agent at Guantanamo wrote to headquarters in November 2002 providing other examples of sensory deprivation: one detainee “subjected to intense isolation for over three months … in a cell that was always flooded with light … was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end)”. In another case, an FBI agent observed: “The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.”
While Hicks’s treatment represents an expansion of an established torture technique, Guantanamo interrogators on General Miller’s watch were adding new methods by attacking both Arab cultural sensitivities and individual phobias. Through this three-phase assault on sensory receptors, cultural identities and individual psyches, Guantanamo would perfect the CIA’s approach to psychological torture.
Interrogators looked for ways to exploit weaknesses such as sexuality, gender identity and fear of dogs. To humiliate the conservative Muslim males, female interrogators regularly removed their shirts, pressing their breasts and crotch against prisoners. One even wiped red ink on a detainee’s face, saying she was menstruating, leaving him to “cry like a baby”.
In another innovation, General Miller also formed so-called Behavioral Science Consultation Teams of military psychologists to divine each detainee’s phobias. In addition to mining medical files, psychologists, as the New York Times reported, advised interrogators on how to exploit “a detainee’s fears and longings to increase distress”, telling of one prisoner’s “fear of the dark” and another’s “longing for his mother”.
Official investigations, class=GramE>US and international, found Guantanamo’s interrogation methods constituted at best abuse, and at worst torture. After repeat visits to the base between January 2002 and June 2004, the International Red Cross concluded: “The construction of such a system, whose stated purpose is production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.”
Beyond these methods, the most important of Secretary Rumsfeld’s innovations at Guantanamo was a compromised, even corrupted form of military justice. Under the president’s November 2001 order, Rumsfeld, as the original “appointing authority”, issued Military Commission Order No. 1 establishing a new judicial system, with its own made-up “Commission Law” operating outside well-established procedures in the Uniform Code of Military Justice. As Michael Ratner argued in his first, February 2002 petition on behalf of Hicks, this order “vests the president with complete discretion to identify the individuals that fall within its scope” and “expressly bars review by any court” anywhere in the world. In short, absolute, unchecked presidential power.
Significantly, the order stated explicitly that such rules did not create any enforceable rights – a Catch-22 that would let Rumsfeld’s handpicked presiding officers, who acted as both judges and members of the jury, make and break rules almost at will. Of equal import, the commissions, unlike regular courts, were allowed to consider any evidence that “would have probative value to a reasonable person”: in effect, abandoning any real rules of evidence to allow even testimony obtained by torture, or hearsay. Finally, the conspiracy charges against Hicks and his co-accused are so ill-defined that there are no clear criteria for guilt, allowing the presiding officer enormous discretion in sentencing.
Not only are the rules flawed, but Rumsfeld’s commissioners were serving officers bereft of any legal expertise and biased by combat experience against the Taliban. Weighing up all these factors, the Australian Law Commission’s Guantanamo observer, Lex Lasry QC, concluded in his September 2004 report that “a fair trial for David Hicks is virtually impossible” and may well end with “a substantial miscarriage of justice”.
After watching court officers fumble for precedents in the first days of the Hicks trial, a legal observer from Human Rights First felt “it would be crazy” to do just what they were doing – “to start building a new legal system from scratch”. Yet there was a certain malign genius to this madness. Just as King James of England had circumvented the common-law ban on torture by convening the royal court of Star Chamber to order torture in the Tower, so too has President Bush evaded the US constitution’s protections by creating military commissions at Guantanamo, answerable only to himself as commander-in-chief.
In June 2004, only weeks after the Abu Ghraib exposé, the habeas corpus case filed two years earlier on behalf of Hicks, Habib and other detainees finally reached the US Supreme Court. In its milestone decision Rasul v Bush, the court affirmed the right of “enemy combatants” held at Guantanamo to due process under law, flatly rejecting the White House’s insistence on unchecked, unlimited detention. Suddenly, the Pentagon’s plans to hold hundreds of detainees at Guantanamo without any judicial oversight were thrown into disarray, and the Bush administration was faced with a possible mass transfer of 600 cases to the US federal courts.
To block that unpalatable possibility, nine days later the Pentagon convened another ad hoc military court at Guantanamo – the Combatant Status Review Tribunal – and over the next six months pushed all the detainees through hasty hearings. On 17 August, the CSRT reviewed the evidence against Hicks, without allowing him to see or challenge the charges against him; and six weeks later, on 30 September, affirmed his designation as an “enemy combatant”. Though the White House thus claimed full compliance with the Supreme Court, the military tribunal denied detainees legal representation and made their military jailers both judge and jury. In this Star Chamber setting, prisoners had no access to the evidence against them.
A week later, Hicks, after 30 months’ imprisonment, finally had his first day in the commission courtroom on charges of conspiracy to commit war crimes, attempted murder by an “unprivileged belligerent” and aiding the enemy. Since the prosecution did not accuse him of killing or injuring anyone, its case was little more than guilt-by-association. The day’s emotional peak came at the start, when Hicks entered the courtroom and embraced his father, Terry, who had flown to Cuba for a few moments with his son. At a press briefing later that day, Terry Hicks expressed concern about the mental damage his son might have suffered from months of solitary confinement, adding pointedly that David, reflecting an acute sense of isolation, had asked him “if family members were still on his side”.
After a formal reading of President Bush’s ruling that Hicks was eligible for trial, the hearings deliberated defence challenges to the impartiality of the five-man panel on the grounds that, as serving officers, they lacked both legal experience and impartiality. Above all, the defence charged that the court’s presiding officer, Colonel Peter E Brownback III, had “a close personal relationship” with the Pentagon’s designated “appointing authority”, Major General John D Altenberg Jr – that Brownback had hosted the general’s retirement party and attended his son’s wedding: charges of bias that the appointing authority, none other than General Altenberg himself, reviewed and dismissed.
When the Hicks case resumed on 1 November, the proceedings seemed even less viable to the Australian observer, Lex Lasry. In the intervening weeks, several panel members had been dismissed, the release of some prosecution witnesses from Guantanamo denied the defence any opportunity to challenge their evidence and the court’s slipshod procedures had left 64 major defence motions unanswered. In an arbitrary move showing the presiding officer’s unchecked authority, the court summarily dismissed, without any legal basis, defence moves to call six leading international lawyers, including the Pentagon’s own law-of-war expert.
But only a few days later, proceedings stopped suddenly when US District Judge James Robertson ruled on another landmark case, Hamdan v Rumsfeld, a suit filed by a Guantanamo detainee from Yemen, Salim Ahmed Hamdan, who had been Osama bin Laden’s driver in Afghanistan. Stating that “the president is not a tribunal”, the judge found that George W Bush had no right to suspend the Geneva Conventions, and Guantanamo’s military commissions thus violated the defendants’ rights. Robertson ordered all hearings be suspended until the commissions met the standards of conventional courts martial under established military law. Significantly, he found the defendant’s months of solitary confinement at Camp Echo unacceptable and ordered Hamdan’s return to the general prison population at Camp Delta.
In January 2005, adding another challenge to the military panels, US District Judge Joyce Hens Green, in hearing petitions from 50 detainees, affirmed the right of federal courts to issue habeas corpus writs for Guantanamo prisoners. The judge found, in reviewing allegations by Mamdouh Habib about his abuse in Egypt, that evidence in the military commissions might well be tainted by torture. After the Washington Post published a moving expose of Habib’s agony and Canberra finally requested his repatriation, he was quickly released, without charges or explanation. In January 2005, after three years of detention and months of cruel torture, Habib finally rejoined his family in Sydney.
Although the US Court of Appeals reversed Judge Robertson’s decision in July 2005, by then New York’s leading law firms had made Guantanamo Bay their preferred pro bono destination. As powerhouse lawyers shuttled to Cuba to meet clients and papered the federal courts with habeas corpus petitions, Guantanamo’s isolation and lack of publicity, once the military’s most powerful psychological weapon, was eliminated. And with Hamdan v Rumsfeld moving up the docket of the US Supreme Court for a definitive review of Guantanamo’s military commissions, all proceedings against Hicks and the other detainees were suspended.
While US courts, the US Senate and leading lawyers mobilised to stop detainee abuse at Guantanamo, Prime Minister Howard announced, with apparent elation, that “we have just received written advice from the Defense Department that after a very thorough investigation, the allegations of Hicks and Habib about mistreatments whilst they were in American custody – no evidence has been found.”
With Canberra unwilling to defend its own citizen, all action in the Hicks case shifted to the UK where, in a far less hostile political climate, he could through his mother claim citizenship – and the protection of a government committed to the rule of law. The attorney general, Lord Goldsmith, had already spoken on the record against Guantanamo a year earlier, saying the military commissions there could not provide a fair trial by international standards; and Lord Stein, Lord Appeal in Ordinary, had damned the commissions as “a mockery of justice”. Although the High Court in London ruled definitively in Hicks’s favour in December 2005, US military authorities at Guantanamo have since denied the British consul access to Hicks for the citizenship oath.
Amidst the rising controversy over conditions at Guantanamo, President Bush and Republican Senator John McCain appeared together in the Oval Office on 15 December last year to announce a historic ban on torture by any US agency anywhere in the world. Looking straight into the cameras, the president declared that historic legislation drafted by the senator, the Detainee Treatment Act 2005, would make it “clear to the world that this government does not torture.” In retrospect, that photo-op was a media mirage, concealing White House moves to twist its torture ban into a legitimisation of the three key legal doctrines that it had originally used after 9–11.
First, in a compromise gesture, McCain had inserted a legal defence for accused CIA interrogators that allows US officials “engaging in specific operational practices that involve interrogation of aliens” to claim, if charged, that they “did not know that the practices [they used] were unlawful”. Next, in the final legislation, Senator Lindsey Graham, a conservative, had inserted an amendment stipulating that “the term ‘United States’, when used in a geographic sense, does not include the United States Naval Station, Guantanamo Bay”: a clear attempt to nullify the Supreme Court decision in Rasul v Bush allowing detainees’ habeas corpus appeals to US courts. And, putting the cherry atop the administration’s legal confection, on 30 December President Bush issued a “signing statement” insisting that his powers as commander-in-chief still allowed him to do whatever necessary to defend America – the same neo-conservative doctrine the administration employed following 9–11.
Only days after Bush signed this legislation, the White House used it to quash any judicial oversight of its actions. On 3 January, the Justice Department notified federal judges that it would seek the immediate dismissal of all 160 habeas corpus cases filed on behalf of Guantanamo detainees. A week later, the US Solicitor General, citing the new law, told the Supreme Court it no longer had jurisdiction over Guantanamo and asked the justices to dismiss the “unlawful combatant” case Hamdan v Rumsfeld – a petition the court recently set aside when it heard oral arguments in the case, the first step to a final ruling that, at the time of writing, was expected to be made in late May.
At the very moment when the White House had the torture scandal under control – by manipulating Congress, silencing the US courts and muzzling the national press – the international community intervened in an unprecedented manner. This February, the UN Human Rights Commission released a report branding US treatment of Guantanamo’s prisoners “torture”. Then, in a historic challenge, UN Secretary-General Kofi Annan issued a dramatic call for the US to close Guantanamo. But within hours Secretary Rumsfeld shot back, insisting detainees are “being handled honourably”, even though they are “several hundred terrorists, bad people, people [who] if they went back out on the field would try to kill Americans.”
“The existence of Guantanamo remains unacceptable,” announced Britain’s attorney general, Lord Goldsmith, arguing that its closure “would help remove what has become a symbol to many … of injustice”. Its military tribunals, he explained, failed to offer “sufficient guarantees of fair trial”: a fundamental principle “on which there can be no compromise”. In this ringing defence of the law’s sanctity, he seemed to echo the House of Lords, which last December affirmed a “bedrock moral principle” within the thousand-year tradition of British common law that torture is “an unqualified evil”, and blocked deportations of a dozen Muslims convicted on “evidence … procured by torture inflicted by foreign officials”.
On similar moral grounds, Germany and the European Parliament have called for Guantanamo’s closure. And, after detailed presentations by a US delegation in early May, the UN Committee on Torture, made up of ten human-rights experts from across the globe, found the detention “for protracted periods at Guantanamo Bay without sufficient legal safeguards” unlawful under the laws of armed conflict, and directed that Washington “should cease to detain any person at Guantanamo Bay and close this detention facility”. Even Saudi Arabia has joined the many nations protesting the detention of its nationals at Guantanamo, announcing in mid-May that it had won the release of 16 more Saudi citizens.
Australia remains one of the few, perhaps the only, nation that still accepts the legality of Guantanamo’s conditions and its tribunals. In late March, right after a visit from the Australian consul, Hicks was – in clear violation of the Third Geneva Convention – moved back into solitary confinement at Camp Five, where he remains today, isolated 22 hours a day inside a cement room with a solid steel door. Apart from a small window with opaque glass that allows a faint glow during the day, he is again being denied human contact or sunlight, and is suffering the severe distress that such sensory deprivation inflicts. Even now, more than four years after Hicks arrived at Guantanamo, Canberra has yet to protest such inhumane treatment.
Indeed, two months after that steel door slammed shut on Hicks, Australia’s ambassador to Washington meekly concluded a formal agreement with the Pentagon’s Office of Military Commissions, winning a promise of Hicks’s repatriation once his case is completed by agreeing to honour whatever terms the tribunal might impose. For the plenipotentiary of a nation to treat with a third-tier functionary and legitimate the illegal incarceration of one of its citizens is, in the view of Joshua Dratel an inexplicable “surrender of Australia’s national sovereignty”.
As a people, Americans are now faced with a decision that will influence the character of their nation and its reputation in the eyes of the world. They can reject White House policy and join the international community by honouring their commitments, under the UN convention and US law, to ban torture unconditionally. Or, they can agree with the Bush administration’s decision to make torture a permanent weapon in the arsenal of American power, paying what may prove a prohibitive price. For, as a powerfully symbolic state practice synonymous with brutal autocrats, torture – even of the few, even of just one – raises profound moral issues about the quality of America’s justice and the legitimacy of its global leadership.
As a people, Australians may face a decision of similar significance. They can break with Canberra’s policy and press their government to honour its commitments, under domestic and international law, to protect the human rights of all Australians. Or, they can support Howard government’s decision to placate a powerful ally by consigning David Hicks to further inhumane torture and illegal incarceration, paying what may yet prove a prohibitive price. For, as the Law Council’s Lex Lasry, QC has warned, by letting even one of its citizens continue in “the grossly unfair” legal process at Guantanamo, Australia may well have diminished its “moral authority” as a nation. By treating David Hicks as an outcast, Australia now risks making itself a moral outcast in the community of nations.
This article was originally published in The Monthly.