>Wall Street Journal - January 13, 2007
>The Gitmo High Life
>By ROBERT L. POLLOCK
Pathetic lies. Here's how its playing out in the real world.
Australia's most wanted
Sydney Morning Herald January 13, 2007
The tide has turned on David Hicks. Most Australians say it's time he left this tiny cell in Guantanamo Bay, writes David Marr.
Philip Ruddock had nothing to offer. He sloped into his news conference on Thursday with no notes. He needed none. He had only familiar lines to deliver. It was the fifth anniversary of David Hicks's arrival, shackled and hooded, at Guantanamo Bay, but the Attorney-General could still not say when the prisoner would be charged, what the charges would be, or when a trial might start.
On the phone earlier in the week, the US Attorney-General, Alberto Gonzales, had told Ruddock, not for the first time, that Hicks's prosecution would get under way any day soon. "His expectation was that charges would be brought against a number of detainees," Ruddock said. "His expectation was that amongst that group David Hicks would be included." But after being let down so often by the Americans, Ruddock was cautious. "It wasn't a cast-iron guarantee."
Ruddock may be despised for his role in the Hicks case, but he is not a fool. He knows the Government is all but friendless on this issue. No lawyers of standing are left defending Hicks's incarceration and trial by military commission - unless they're being paid to do so. Military lawyers are in open opposition. The Government's only friends in the press are a few shock jocks and diehard columnists. The Liberal backbench is restive. The branches are furious. The polls are appalling.
Ruddock won't say how it felt to read December's Newspoll showing 67 per cent of Liberal voters want Hicks brought home. "I look at opinion polls in the same way as most people do," he said with grave detachment. "I might be interested in what they say but I also form a view about what is right and appropriate and seek to put a view to the Australian community on why the course that we follow is the most appropriate course."
That poll was commissioned by the online political movement GetUp, which has championed the Hicks cause since it was established 15 months ago. First there was a petition of 50,000 signatures. Then in November members chipped in $150,000 in 72 hours to put up billboards in Sydney and Adelaide: "Highly prominent billboards where Alexander Downer, Philip Ruddock and John Howard can't ignore you - on the roads between where they live and work." The GetUp message was simple: Bring David Hicks Home.
The December poll result amazed even GetUp. It discovered it was not way out in front on this issue, but mainstream. The timing was good. Hick's US military defence counsel, Major Michael (Dan) Mori, had just finished another of his tours of the country. By now a familiar figure on Australian TV screens - his marine haircut cruelly exposing a fine pair of ears - Mori had briefed politicians and given interviews as he worked on the case. In Fremantle he met all the state attorneys-general, a gathering Ruddock pointedly boycotted. He has never met Mori.
Mori's news from Guantanamo late last year was that the cruel conditions of Hicks's detention - virtual solitary confinement - appeared to be threatening his sanity. "America would not tolerate this for one of its citizens," he said. "Nor would it tolerate any politicians sacrificing some American citizen to the whim of a foreign country, regardless of whether they are our ally or no. It just doesn't happen."
Newspoll's question addressed the Government's fundamental defence for leaving Hicks so long in Guantanamo: that he had to be tried over there because he couldn't be tried in Australia. So before asking 1200 people if Hicks should be brought home, the pollsters said there was "a possibility that he would not face any charges in Australia". Undeterred by the prospect of Hicks going free, 70 per cent said he should be brought home now.
What has not been reported from that poll is an extraordinary consensus on the fringe of politics: all One Nation voters - and the pollsters found 37 of them - said Hicks should come home at once. So did virtually all the Greens and 80 per cent of Family First voters. Very different people with very different perspectives were demanding a fair go for Hicks.
Across the great swathe of middle Australia, the breakdown of the figures showed the Government's cause is essentially lost: 78 per cent of Labor voters, 74 per cent of Democrats and 67 per cent of Liberals want Hicks brought home. The Nationals were split 50:50.
For the social researcher Hugh Mackay the poll is a sign that Australia is no longer asleep. "The weight of it is so impressive. It's very unusual to see such a big majority on an issue like this that we would have thought controversial. My view from the early years of Hicks's imprisonment was that the issue wasn't a blip on the radar.
"People didn't want to talk about Hicks. It was part of what I've called the 'trough of disengagement', where the response to bad news was to ask, what will we have for dinner and what's on television. These figures are very impressive evidence that we're emerging from that trough."
GetUp's executive director, Brett Solomon, put it this way: "The poll showed this has stopped being a dinner party issue and became a barbecue stopper."
It's taken a long time, but campaigners agree that time itself deserves most of the credit. Whatever Hicks has or hasn't done, five years is a long time to wait alone in a military cell for nothing to happen.
He's been there so long now that history has shifted under him. Tim Bugg, president of the Law Council of Australia, says: "Because of the background of September 11, Bali and things like that, there was a level of hostility to anyone allegedly involved in terrorist or semi-terrorist activity, and that played a big factor in the antipathy of the Australian public in those early days. But as time has gone on that's less significant."
When this Tasmanian solicitor took over as president of the peak body last year, the Law Council had hammered the Government with 34 press releases on Hicks over three years. A further half dozen have followed, attacking the military commissions, ventilating torture allegations, supporting Mori and applauding Hicks's victories in the US courts. According to Bugg, this unprecedented barrage is not controversial in the legal profession: "Not at all. I've had partners of what could be described as the country's leading firms contacting me saying, 'we want to write to the Prime Minister about this, we agree with your position, keep up the good work'. That's the message we're getting from our constituents: very widespread support."
Bugg can't name a single legal authority still supporting the Government's stand: no professors, no military lawyers, no Queen's counsels and no judges. "Those judges who are willing to come out are critical of what's been happening, and commentators around the world are critical of what's happening. It's very much in favour of the position the Law Council adopted a number of years ago," he says.
The tipping point - to use a cliche of the war on terrorism - came last June when the US Supreme Court declared Guantanamo's military commissions were neither authorised by federal law, nor required by military necessity and contravened the Geneva Conventions. "It undercut the Government's position completely," Bugg says. The campaign to bring Hicks home gathered momentum.
GetUp spent nine months collecting 10,000 signatures for its petition. But from the middle of last year it took only three months to get to 50,000. But this sudden quickening of tempo in mid-2006 can't be explained by lawyers' lobbying or distant court victories. Not alone. Those campaigning to bring Hicks home see a number of elements coming together last year to produce a consensus that leaving Hicks in Guantanamo was simply no longer acceptable.
They cite the approaching fifth anniversary of his incarceration; distrust of Ruddock's promises; Britain's rejection of the Guantanamo regime; the sight of Pakistan and Saudi Arabia taking their prisoners home; the strange absence after all these years of any detail of the case against Hicks and the suspicion that if he'd done terrible things we'd know about them by now; Australia's isolation as the only nation left supporting the Guantanamo regime; and the collapse of confidence in the conduct of the war on terrorism.
But the three main drivers of public perception appear to have been the image of the abandoned Australian abroad, the figure of Hicks's father, Terry, and the work of Dan Mori. He may look like Gomer Pyle but he pleads like Atticus Finch. Asked how she explains the shift in Hicks's favour, the Liberal backbencher Judi Moylan immediately nominates the publicity generated by Mori.
"I understand from talking to people they have responded very, very well to Mori's candour and what they perceive as his openness." Bugg commends Mori. So does Lex Lasry, the Law Council's observer at Guantanamo hearings in 2004.
Lately Ruddock has ceased sneering. Last week he told The Age: "No one can deny Major Mori has done an outstanding job."
"He is a soldier," says Solomon of GetUp. "People respect the uniform. And a lot of Australians have traditionally respected America - the symbol of justice, the symbol of democracy and freedom. And in a sense Mori is a symbol of the old America they used to respect and still respect. And the military commission process is a symbol of the new America that they no longer respect, and the Australia they're losing respect for."
Terry Hicks has won respect in part, perhaps, because he's a man of so few words, all of them plain: "When David was tortured and beaten and that type of thing, well, that wasn't too good for him." Sincerity makes him invulnerable. It probably helps that he's the white father of a white son with a name that couldn't be more Australian.
And there's something stubbornly impressive in Hicks snr not calling for action on the basis that his son is innocent. Terry Hicks just wants him to get a fair trial which he - and many, including the Law Council - argue is now impossible. "I think a lot of people can identify with Terry and I think they admire the courage he has displayed," says Lex Lasry.
Moylan believes most people can relate to the predicament of a parent whose son has gone off the rails. Solomon says: "I'm sure that many people think 'there but for the grace of God'. Here is a young Australian man. He's a fool. But he's an Australian fool. He's one of ours."
All over the country, politicians are being told Australia has abandoned Hicks. The NSW Liberal backbencher Danna Vale quoted John Donne in an emotional plea to Parliament last year. "Out and about in my electorate, I am often asked, 'Why have we accepted that he has now been held for so long without trial? Where are the values and traditions we are defending with the lives of another generation of young Australians? Why don't these same values and traditions also apply to David Hicks?"'
On the other side of the continent, Moylan is hearing the same thing, even in the most conservative corners of her electorate. "They feel we've just abandoned him."
At his news conference this week, a sombre Ruddock again put his trust in the promises of the Bush Administration: Hicks will soon be charged and there will soon be a trial. But the Pentagon has never really controlled the timetable at Guantanamo Bay because powerful forces are ranged against any detainee ever facing a military commission. Hence the long hiatus while the legality of the commissions was appealed all the way to the Supreme Court. Further appeals and further very long delays are certain.
Far more is at stake than the fate of one Australian prisoner. Ranged against the military commissions is the US's legal establishment. This is a brawl over the nature of presidential power, the legitimacy of the military justice system - Mori is not a rebel but an agent of opposition to a system the marines detest - the survival of habeas corpus in the US and the fate of the Geneva Conventions. As a bit player in this struggle, watching candidates for next year's presidential elections begin to take to the field, Australia must wonder if it has backed the right side.
Meanwhile Hicks's condition appears to be deteriorating. He won't speak to Australian consular officials who come to check on him. This year he refused to take his father's Christmas telephone call. He seems still to be talking to his lawyers. A guilty plea would offer the Howard Government a neat exit from this mess in time for the elections. So far, Hicks is holding out. THE HICKS DOSSIER
November 1999 to November 2001 Hicks is accused of joining Lashkar-e-Taiba in Pakistan, then training and fighting with al-Qaeda in Afghanistan. He was captured trying to flee the country. Alleges abuse by US interrogators.
January 2002 Among the first prisoners to arrive at Guantanamo. Rear Admiral John Stufflebeem: "They are bad guys. These are the worst of the worst."
June 2004 Hicks charged with conspiracy, aiding the enemy and attempted murder by an unprivileged belligerent. Pleads not guilty.
August 2004 Hicks receives his only visit from his father, Terry.
June 2006 US Supreme Court rules Guantanamo military commissions neither authorised by US federal law nor a military necessity and they contravene the Geneva Conventions.
September 2006 Congress legislates to re-establish military commissions. Britiain's Lord Chancellor declares Guantanamo "an affront to the principles of democracy". All British citizens removed from detention by this time.
January 2007 Brigadier Lyn McDade, director of military prosecutions in Australia, calls Hicks's treatment abominable. The Attorney-General, Philip Ruddock, says her view "reflected the Government's position".
The future? Hicks charged and trial begins, perhaps midyear. Further challenges to US Supreme Court certain. Earliest these can be resolved: late 2008.