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Rule of law denied

Chris Saliba is a Webdiary columnist. His last piece was The Third Try: Can the UN Work? A book review.

by Chris Saliba

Peter Costello is right. If you can’t commit to Australian values, we should put you on a boat and send you out to sea you later. Democratic beliefs, respect for the rights and liberty of others, and respect for the rule of law are our core beliefs "Those who are outside this compact threaten the rights and liberties of others," the Treasurer warned at his speech to the Sydney Institute. Amen to that.

Recently, the United Nations released a report (pdf) calling for the closure of Guantanamo Bay, the ill-famed detention centre where Australian citizen David Hicks has been holed up for the last four years. The report criticised the legal regime set up to try its detainees, its human rights record, and its religious intolerance.

Drawing attention to the Military Commissions’ lack of judicial independence, the report stated:

According to the military order, the judges of the Commissions are appointed by the “Appointing Authority”, which is under the authority and the responsibility of the Department of Defense and ultimately of the President. Judges should be commissioned officers of the armed forces and may be removed by the Appointing Authority. Such provisions suggest not only interference by but full control over the Commissions’ judges by the executive: the requirement of an independent judiciary is clearly violated.

Furthermore, even your civilian lawyer, if you can get one cleared by the Military Commissions, can have certain information or evidence withheld, and may have you excluded from the hearing for national security reasons. "All of these requirements imperil the right to a fair trial,"’ the report states.

Also of concern to the report’s authors was the use of "counter resistance techniques." Twenty-four different techniques are currently authorised at Guantanamo Bay, with guidelines saying that detainees shall be treated humanely "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions." Of this approach the report says, "This formulation is ambiguous in that it implies that military necessity may override the principles of the Geneva Conventions."

On the subject of health, the report alleges that the conditions of  confinement at Guantanamo Bay have had a ‘devastating’ effect on the mental heath of the detainees. It also says health officials at the facility have systematically violated their ethical responsibilities as health professionals.

The report also raises concerns about freedom of religion and religious tolerance. The official list of interrogation techniques allows for the removal of the Holy Koran. "This constitutes an impermissible
limitation on the right to freedom of religion or belief of detainees," the report says.

In conclusion, the report maintains that:

The persons held at Guantánamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.

To discuss these issues, a public meeting was held last week in Melbourne by a group called Civil Rights Defence. This group of activists began as a support organisation for Jack Thomas (recently convicted of receiving funds from a terrorist organization, although cleared of two counts of intentionally providing resources to al-Qaeda) and has since grown into a broader campaign to fight the new terror laws. The evening was chaired by Julian Burnside, with guests Terry Hicks, father of David Hicks; Rob Stary, the lawyer representing Jack Thomas; and former Guantanamo Bay detainee Moazzam Begg via video link from the United Kingdom.

Julian Burnside began by stating his belief that Australia was better off ten years ago, before Howard. No surprises there. He then went on to quote John Locke, the English philosopher, who said that when a people become dissatisfied with their government, it is their right to change it, and commented that this was indeed ironic in light of Australia’s sedition laws. Mr Burnside finished by urging us all to re-read George Orwell’s Nineteen Eighty-Four, which he says is more relevant today than ever.

Of Phillip Ruddock, Burnside had nothing nice to say. "Ruddock shouldn’t have anything to do with the legal system," he opined. Considering the excesses of the immigration department whilst he was its minister, the QC said that Phillip Ruddock "should never be responsible or in charge of any other human being." Funnily enough, Burnside confessed that he had nothing personal against the Attorney-General, and accepted that he was a pleasant enough man, a testimony he had heard from several of Ruddock’s acquaintances.

On the subject of the Military Commissions (discussed above), Burnside noted that every legal professional opposed them – except of course Phillip Ruddock. Furthermore, he maintained they were a deliberate attempt by George W Bush to avoid the law. "Guantanamo Bay prevents inmates from gaining access to the rule of law," he said.

Rob Stary spoke next, giving us the ins and outs of the Jack Thomas case. He reminded us of how Channel 7 was there to film Jack Thomas’s arrest, after receiving information leaked by the Australian Federal Police. When later the AFP investigated the leak, they found – surprise, surprise – nothing.

The AFP let Jack Thomas go for some 17 months, maintaining that he was a sleeper cell. As proof of his effectiveness as a sleeper cell, the AFP cited the fact that Jack Thomas had not done anything! Maybe we should all be reading Lewis Carroll instead.

Stary believes – and this no doubt is a controversial point – that the government is desperate to get a ‘trophy case’ to prove the necessity of its new terror laws. Whilst he couldn’t go into details, he said, ‘Don’t be surprised if some time in the future a document turns up saying the AFP wanted a trophy case to prove the laws necessary.’

He finished by describing some of the security checks that you have to go through if you are going to be a legal aid lawyer on a terror case. You even have to volunteer your political affiliations. Rob Stary said he had been a long time supporter of the Australian Labor Party, but now holds them in contempt. "The Labor Party does not oppose any of these laws, sadly," he said.

Terry Hicks began his speech by informing us that his son, David, was captured by the Northern Alliance from a checkpoint and then sold to US authorities for $15,000. He brought to our attention the fact that of the 300 released from Guantanamo Bay, only two have rejoined the Taliban.

"Howard thinks it’s a fair system," Terry noted the PM’s attitude to the Military Commission system, even though "evidence by torture is admissible." As far as David Hicks’s father is concerned, "The commissions are set up to find you guilty."

From a sworn affidavit by his son to the Australian Government, Terry Hicks read out some of the maltreatment that had been meted out to David. This included:

- being beaten
- menaced with firearms
- beatings to the head
- hits with rifle buts
- having your head rammed into asphalt

"The Australian Government needs to have a real good look at themselves," Terry Hicks said scornfully.

The last speaker, Moazzam Begg, came to us via the wonders of video broadcast. We had one big blurry image of Mr Begg sitting in what looked like his living room. He sat swivelling back and forth in his chair, facing us, looking like he was in the cockpit of some science fiction space ship, sporting a trendy pair of Bono like shades.

Born in the UK of Indian parents, Moazzam Begg was well spoken and articulate. He sounded more like an urbane, well-polished media commentator on the subject of Guantanamo Bay rather than one of its victims. If Guantanamo survivors need an articulate and intelligent spokesperson, then this is their man. If we believe his story, then this makes sense. In 2001 he moved with his wife Sally to Kabul, Afghanistan, to fulfil his dream of being a teacher and soon became a charity worker at a school.

When war broke out in Afghanistan he decided to move his family to Pakistan for reasons of safety. In February 2002 he was "kidnapped at gun point by Pakistani and American intelligence services."

Why did the British negotiate for the release of their captured citizens at Guantanamo Bay? "Because of the sheer opposition by the British population and government MPs," Begg said. In other words, there was a huge groundswell of popular opposition, something not seen in Australia.

On the subject of the Australian Government, Begg found it "very sad that David has to resort to UK citizenship." Making things worse is the fact that "Howard is ready to make biased statements about Hicks and Habib."

"It’s sad that Howard would prejudice opinion."

Moazzam Begg was highly critical of the Military Commission system, constantly calling Guantanamo Bay (plus the other shady prisons the US is now running outside the US) a legal black hole. He made the point that only two countries accept the legality of Guantanamo Bay – the United States and Australia.

"All we’re demanding is justice," Begg said. "The rule of law is denied. Lives are destroyed."

Inside Guantanamo Bay Moazzam Begg witnessed the death of two inmates. He described prison guards as either decent, indifferent or vindictive. Witnessing torture he found more difficult than actually experiencing it, as you feel doubly for those humiliated in such a way.

Despite all, Begg remains optimistic that Guantanamo will be closed down."More powerful voices are coming out against it," he said. He cited the recent UN report, mentioned above. Kofi Annan has also called for the facility to be closed down. Even war on terror coalition partner Tony Blair recently described it as an ‘anomaly’.

As time passes, more stories about what has happened at Guantanamo Bay are coming out. The BBC is to air a documentary called The Road to Guantanamo by filmmaker  Michael Winterbottom which details the goings on at the facility. Moazzam Begg himself has just released a book about his experiences, titled Enemy Combatant.
With all this pressure mounting, how much longer can the US keep Guantanamo going? Will David Hicks find himself set free, like Mamdouh Habib?

Back to Peter Costello’s speech. On democracy and the rule of law, the Treasurer says, "I suspect there would be more respect for these values if we made more of the demanding requirements of citizenship." Agreed, let’s become more vigilant citizens, and demand the rule of law be fairly applied to all Australians – even that one citizen in Guantanamo Bay.

Terry Hicks has some good advice on active citizenship. "The government hates paperwork, so write them letters," he told us during the talk. "It puts pressure on them." With some cheekiness he added, "At least it gives them something to do."


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Gaudron article

What 'values' does Costello mean?

A very well-argued piece Chris.  Without doubt, the most awful and embarrassing aspect of Guantanamo is how it highlights our hypocrisy.  We are an advanced Western nation with 'democratic beliefs, respect for the rights and liberty of others, and respect for the rule of law [as] our core beliefs'.  But in the light of Guantanamo, can we legitimately say we practise what we preach?

Also, the government expects a commitment by prospective citizens to 'Australian values'.  But what exactly are they?  It's a pretty vague expression that can be twisted into just about anything.  Perhaps this was the idea.  The PM and Costello have mentioned a few values in passing and sounded almost laughably Orwellian.  If government actions and policies are an indicator of national values, I can only say that this government has been a bit selective and inconsistent in the 'values' it espouses.

Australian values are western post-enlightenment

Australian values, as I see it, are the values claimed by (though not always fully supported by) most secular liberal democracies today, such as freedom of speech, freedom of press, gender equality, freedom of sexual orientation, freedom of religion/no religion, etc.

Woomera, Baxter, Manus Island and Nauru

Thanks for this, Chris. Never let us forget how the system now works for so-called "unlawful non-citizens" and start with this proposition from Chief Justice Gleeson in the transcript for Behrooz. "What is the baggage for the word "unlawful"? David Bennett, Chief Solicitor for the Commonwealth. "Nothing, your honour, it is merely a definition phrase". Chief Justice Gleeson and Justice Gummow both suggested it should be removed because it implies criminality where there is none.

In 1994 the ALP and Liberals discarded penalties for arriving without visas, removed all offences and invented three-corner administrative detention. It works like this:

1. It is not illegal to enter or remain in Australia without a visa but if you are we will simply lock you up.

2. We won't tell you why you are locked up or tell you that you are entitled to ask for a lawyer and we won't tell you that you are entitled to ask for a lawyer unless you ask first. Madness.

3. We have invented tribunals that do not have to uphold laws of evidence and so long as they have looked at what you say or evidence you present and then discard it that is legal.

4. You will never be entitled to a merits review of the case.

5. We will never tell you how long you will be in detention and if you become suicidal it is all your own fault.

6. If you dare to bring your children we will treat you twice as harshly and the children three times as harshly.

7. If you go insane we can still deport you, with or without papers.

8. If you are a student who works one hour longer than allowed or fails a class we will mandatorily cancel your visa and either lock you up or deport you.

And on it goes.

If anyone wants to see the destruction of the rule of law wander off to the Senate Committee site and read the submissions and report.

Justice Mary Gaudron has an article this week that says this cannot happen in Australia because of the Constitution. Mary Gaudron is wrong.

Fiona: Hi, Marilyn. Do you have a link to the Gaudron article?

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