Hicks v Howard

David Hicks' book Guantanamo: My Journey was released last week. Unfortunately, in a media fuelled culture obsessed with judgment rather than truth or evidence, important questions are never asked let alone answered.

Whether or not you believe David Hicks' version of his own story is irrelevant. Since 2001 the low brow focus on whether or not "Hicks had it coming" has successfully diverted attention away from fundamental issues of legal and political importance. It's been so effective, in fact, that it enabled Howard, Downer and Ruddock to disregard habeas corpus, rules of law and of due process, and four Geneva Conventions.

The end result - an unprecedented abuse of public office to the detriment of an Australian citizen - is unforgivable. Such acts of political bastardry will never be seen as the acts of principled leaders, and certainly not of statesmen.

David Hicks has now told his story of the privations and physical and mental suffering he had to endure as a political pawn. But without detracting from that, is not the real story how Howard and the members of his regime, elected representatives of a supposedly free and democratic society, seem to have gotten away with ignoring or dismissing such fundamental legal principles?

Why this occurred, who was responsible, who needs to be held accountable and how it can be prevented from happening again, are questions that should be occupying the mind of every Australian.

Sir Anthony Mason and Geoffrey Lindell noted in 2007 "...a disturbing modern trend under which governments and the media feel increasingly free to prejudge and generate a climate of adverse publicity about persons accused of committing serious criminal offences.  This represents a serious undermining of the presumption of innocence...".

Why would any reasonable professional journalist or politician with an ounce of integrity do it?

On page 382 of his book Hicks says "...Mori then relayed a message to me that had originated in Australia. John Howard told one of his staffers who told Mori to tell me that under no circumstances would he let me return to Australia without my entering a guilty plea...".

It seems on investigation that it was conveyed in a more general sense but the general thrust of Hicks' statement is supported by the fact that:

• his Prime Minister, his foreign minister and his Attorney General, in flagrant disregard for the presumption of innocence, had unashamedly demonised him in the media since 2002;
• he was not charged with any offence until 26 August 2004;
• US and British citizens were excluded from being tried by the Commission. The British Attorney-General (who is not a member of Cabinet), Lord Goldsmith, said the tribunals don't offer sufficient guarantees of a fair trial according to international standards;
• on 15 September 2004 Australia's independent legal observer (endorsed by the Law Council of Australia) recommended that the Howard Government request the American Government to either put Hicks on trial before a proper criminal justice system – either civilian or military - or bring him home;
• on 29 January 2006 the US Supreme Court ruled in Hamdan v Rumsfeld that the military commissions under which Hicks was to be tried were illegal under United States law and the Geneva Conventions. Even though Hicks' 2004 charges were rendered invalid the Howard Government didn't "accelerate" Hicks' repatriation. Instead it opted to support a new military commission signed into law on 17 October 2006, with "habeas corpus being abolished as a means of challenging the legality of detention by the executive government and legislation torpedoing of the protection of the Geneva Convention';
• on 28 November 2006 State attorneys-general signed a letter demanding that Hicks be returned to Australia to face trial;
• on 9 January 2007 (reported on 25 February 2008) Colonel Davis, the chief prosecutor for the Bush administration's military tribunals at Guantanamo Bay, received a call from Pentagon's general counsel, William Haynes asking him how soon he could charge Hicks
• on 2 March 2007 (some five years after his arrest) he was charged again, this time with an offence of providing material support for terrorism which was retrospective in its application. On 8 March 2007 the Law Council of Australia published a strong condemnation of the retrospective charge;
• on 27 March 2007 Hicks "pleaded guilty" to a charge of material support for terrorism; and
• on 30 April 2008 Colonel Davis admitted that the military commission was politically influenced and that evidence was obtained through prisoner abuse.

But perhaps the best corroboration came out of Howard's own mouth when this allegation and others were put to him by Tony Jones on Q&A. Howard said he was "not aware of any such exchange", but he did not deny that such a "directive" may have been or was given (although he said that no such order came from him), and that course of action had vindicated what had been his view all along.

Howard's view was, and obviously still is, that it was better that an Australian citizen "go before a military commission given the allegations that had been made against them than be brought back to Australia and not be capable of being charged".

Howard's denials - based on his past record - are not worth anything. David Hicks faced trumped-up charges and they couldn't make them stick.  They had Hicks over a barrel. He had nowhere to go.  The charges against him have never been tested and could never be tested in a court of law. For Howard to raise Hicks' guilty plea on Q&A is disingenuous at best.

Contrary to Howard's cheap rhetorical tricks, nobody has ever portrayed Hicks as a hero.  The people who stood up for him stood up against the repression.  Saying he's not a hero doesn't shift the focus from the iniquity of Howard or his government.

Howard exposed the fundamental flaws in the Australian Parliament which led to substantial abuses of the system. The accumulation of power in the Prime Minister's office still exists today because the flaws have not been addressed. Checks and balances must be restored to Australia's Parliament. The Prime Minister is appointed by a party not the people. People elect individuals in their electorate whom they expect to have greater power than they do.

Over 11 long years Howard did not seek to preserve democracy, he sought to take away democratic rights. Children in detention, indigenous rights, Haneef, wars without UN Security Council Resolutions authorising the initial use of force, Hicks, the list goes on.  The fact that Australia is "a great country that allows this kind of exchange to occur....that would not occur in other countries and in dictatorships..." is no thanks to Howard or his regime.