What did our Government know?
Melbourne Age January 14 2005
Australia decided not to help Mamdouh Habib while he was being held by the US. Why, asks Julian Burnside.
The United States has agreed to release an Australian citizen from Guantanamo Bay and return him to Australia. This looks like a small victory for democracy, but in truth it serves to highlight the way in which our democratic freedoms have been compromised during the past three years.
Mamdouh Habib was arrested by US forces in Pakistan in October 2001. He has been in American custody since then: in Pakistan, in Egypt and in Guantanamo Bay, Cuba. During the 38 months Habib has been held by America, he has been denied access to his lawyer, and the Australian Government has done nothing to help him.
Habib has not been charged with any offence. It is clear that he has not committed any offence against Australian law: the legislation that might apply was not passed until nine months after his arrest. We can assume that he has not committed any offence against the law of Pakistan or Afghanistan, since those countries have not sought to extradite or charge him. It seems that he has not committed any offence against American law: if he had, he could have been taken to America for trial, but that has not happened.
The decision to send Habib home is the result of two US court decisions in 2004, which appear to have upset American plans. In US courts, evidence illegally obtained must be excluded, because the state should not break the law. Both in American and Australian courts, confessions obtained under duress must be excluded, because of their inherent unreliability. Confessions obtained by use of torture are excluded on both grounds.
The Americans planned to try Guantanamo prisoners in military commissions that would not be bound by the ordinary rules of evidence. Specifically, the commissions were to be able to receive evidence of confessions obtained by use of torture.
However, last July the US Supreme Court ruled that it had jurisdiction to review the circumstances of detention in Guantanamo. In November, the Federal Court for the District of Columbia held that the military commissions violated the standards required for fair trials. It ordered that the commissions be halted until America complied with the Geneva Convention relating to prisoners of war.
That ruling spelt the end of the military commissions. The conditions under which detainees in Guantanamo have been held and interrogated practically guarantee that any confession obtained would be excluded from evidence in any trial that could be described as fair.
At Guantanamo, detainees were forbidden to speak; they were permitted two minutes a week for a shower; they were regularly subjected to body searches, including cavity searches; they were frequently held short-shackled for hours on end: this involves squatting on the floor, the hands shackled between the legs and attached to the floor by a chain so short that the detainee can scarcely move. Detainees were held in cells in which the air-conditioning was set to freezing temperatures. They were interrogated while chained to the floor; they were not allowed to go to the toilet during interrogations and would have to urinate in their clothes. Detainees were threatened with electric shocks; they were threatened with the prospect of being sent to Egypt or Morocco to be tortured.
It is not hard to see why Habib is now to be released. After his arrest in October 2001, he was sent to Egypt for six months, where he was tortured. He was then taken to Guantanamo and interrogated for three years. No American (or Australian) court would admit confessions obtained by these methods.
What is really significant is the timing of his release. The November court decision means, in substance, that evidence obtained by use of torture would not be allowed. The Americans must then have realised that they could never make a case against Habib. Only then did the Australian Government ask that he be returned to Australia.
This sequence of events raises some very disturbing questions: How much did Australia know about the treatment of Habib? Why did Australia not ask for his return before this - why did we wait until evidence obtained by torture was ruled out? Why has Attorney-General Philip Ruddock been so guarded in his comments about the treatment to which Habib has been subjected?
The overwhelming inference is that the Australian Government knew or suspected that Habib had been tortured, but believed that a military commission could use evidence obtained this way. Conditions in Guantanamo have been the subject of many reliable reports over the past two years. From late 2002, Major-General Geoffrey Miller was in charge at Guantanamo. In April last year, he was exposed as the person responsible for the outrages at Abu Ghraib prison in Baghdad. The Australian Government knew of those events months earlier. It must have known of the mistreatment of prisoners in Guantanamo; it must have known that the mistreatment was designed to obtain evidence that could only be admissible in a trial that lacked the basic requirements of fairness. And it certainly knew that the victims of this mistreatment included two Australian citizens. The alternative, only slightly less disturbing, is that our Government simply did not care how the Americans treated Australian citizens.
Guantanamo is a bad advertisement for democracy and democratic values. It reflects badly on any government that condones it. Great democratic principles, such as the rule of law and the right to due process, can be traced back to the Magna Carta. In the war against terror, it is well to remember that we are defending those principles. In Guantanamo, those principles have been sacrificed.
Julian Burnside, QC, is a Melbourne barrister. jb at julianburnside.com