After five years of incarceration at Guantanamo Bay without trial, it is increasingly clear that David Hicks has committed no serious crime and that he is no threat. Yet, he is being held in a prison camp, often in solitary confinement, subjected to endless interrogations and physical and mental abuse to try and break his resistance to a guilty plea. Hicks is now in such a state that he cannot even bear to talk to his father on the phone.
The Bush administration desperately needs to obtain prosecutions from the Guantanamo Bay prison to "justify" the existence of what has become a political liability for Washington. It has been condemned around the world and within the US for its blatant trashing of fundamental human rights and principles of justice. The Australian government is more than willing to offer up Hicks for the purpose.
Colin Mitchell from Civil Rights Defence caught up with Hicks's Australian lawyer, David McLeod, at his Adelaide office before he left to visit Hicks in Guantanamo Bay at the end of January.
Has David committed any crime?
He has not committed any offence under Australian law or international law.
Why do you think David has been chosen to be prosecuted?
There has been pressure from the Australian government to have him dealt with by the US because he cannot be prosecuted under Australian law, and the government wants David to answer for his conduct.
What should happen to David?
He should be released back to Australia without further ado. The reason is that after five years in prison, irrespective of what he is alleged to have done, or not done, it is now no longer possible for someone in his circumstances to receive a fair trial.
It is not just me saying that. Lex Lasry QC, the Law Council, the special observer appointed by the Law Council, the American Bar Association and various other leading legal and related institutional organisations have said the same.
"Justice delayed is justice denied" — the reason for that maxim is that the longer it takes to try someone, the less reliable memories become, the less fresh evidence becomes and therefore the less reliable it all becomes. Witnesses forget and witnesses can manufacture evidence over time. There are a whole lot of reasons that learned scholars have written about to the effect that if you are going to be tried you must be tried quickly for offences to get any chance of a credible version of events being presented to the decision-maker.
What should happen to him in Australia?
Nothing. By the government's own admission he has not committed any offence under Australian law so why should anything happen to him? That said, Hicks's legal team has said to the government that if it intervenes to bring him home we would not oppose him being put under a control order for 12 months if this was something which was likely to influence it to act to bring him home.
Would you disapprove of any attempt to prevent David from talking to the media about his story?
There would be no lawful way that the government could restrict that, so it is a matter for David.
Are the military commissions set up to find the defendants guilty?
Yes, absolutely. And the new rules for the commissions are no better. There is supposed to be a presumption of innocence, but US President George Bush has said David is one of the worst of the worst and PM Howard has said he has committed serious offences. And what better example of the lack of presumption of innocence was the chief prosecutor [Colonel Morris Davis's] recent outrageous demonisation of David and his public airing of the prosecution case.
There is supposed to be a right to cross-examine prosecution witnesses. But under this system the prosecution does not have to produce witnesses for security reasons; the prosecutor can introduce paper evidence only, including hearsay evidence, which prevents the defence from cross-examining any witnesses.
There is supposed to be a ban on evidence obtained by torture, but it is their definition of torture. Evidence obtained under duress is admissible, including evidence obtained by inhumane, cruel and degrading methods. The rules allow the prosecutor to admit evidence obtained by torture by keeping secret the sources of the evidence and the methods by which it was obtained.
Why has Melbourne psychiatrist Professor Paul Mullen been refused permission to see David?
The refusal, by the US, suggests an unwillingness to reveal David's true mental state to the world.
What do you think of foreign minister Alexander Downer's view that David's mental health is reportedly ok?
The basis on which Downer made his views known was outrageous. A public affairs officer from the US embassy had been sent to Guantanamo Bay. A meeting was set up at the officer's request: it lasted about three minutes. David refused to speak to the officer, and on this basis the officer reported that David was fine. But the very fact that David did not speak suggests that his mental state is not good. Earlier, he did not speak to his father on the phone. He has also refused to see Australian consular officials.
David has twice refused to plead guilty. Do you think he will now be forced to plead guilty in a plea bargain?
There are currently no charges to plea bargain on. [Charges were finally laid against Hicks on February 3.] Formerly the attorney-general would not call for David's immediate return because David had been charged. Now he is not charged. So, by that logic, this is the opportunity for Australia to demand his return like Britain and the other countries have demanded the return of their citizens. But the attorney-general now says that we must wait for new charges to be laid!
The difference between plea bargains and the situation in Guantanamo is that in Australia plea bargains are made at the beginning of the court process. At Guantanamo Bay, David has been incarcerated for five years without trial and subjected to repeated interrogations. A plea bargain is not appropriate under circumstances where he is under mental and physical pressure. It is unconscionable for the government to take advantage of David's situation to suggest he plea bargain now.
Do you think Attorney-General Philip Ruddock and other MPs have committed a crime in the way they have abandoned Hicks? Can they be prosecuted?
Alastair Nicholson, a former chief justice, and five other eminent Australian legal figures recently produced a document, called a legal opinion, which concluded that the military commissions violate Common Article 3 of the Geneva Convention and would contravene the standards for a fair trial under Australian law. According to the document, that would mean that to counsel or urge a trial to take place under the military commissions would constitute a war crime under the Australian criminal code.
Also we, David's legal team, are currently challenging the Commonwealth government, Ruddock and Downer in the Federal Court on behalf of David over the government's refusal to demand David's return to Australia. The case, due to be heard on February 26, accuses the government of violating the constitution by permitting an Australian citizen to be punished unlawfully because Hicks has not violated any law of Australia or the municipal law of the US.