Guantanamo Bay: the view from here

Last week got a bit heavy on law-stuff, so I won’t be repeating that effort.

But prompted by Jonas, I’m just going to slap down my opinion on the disgraceful situation surrounding David Hicks, one of two Australians being held in Guantanamo Bay, and the legal and foreign policy issues it throws up.

First, as an Australian – why are we taking such a softly-softly approach on this compared to the British? Are we, as Malcolm Fraser challenges, just an unthinking appendage to the United States?

(No, comes the official answer, we strongly oppose the death penalty and will oppose the sentence if Hicks receives it. Now there’s an argument that could rapidly become academic.)

Then, the issues to get a civil-libertarian’s blood boiling are legion. That no civilian Court can issue habeas corpus over prisoners detained at Guantanamo, a legal limbo – neither part of US nor Cuban territory, where conditions are bad enough to be driving inmates to attempt suicide – at least one having already died. That it has taken two and a half years to get Hicks to trial. The fact that the trials before the US military tribunals will be secret, have no right of appeal, and can impose the death penalty. The possibility of indefinite detention if the White House does not certify you ready for trial, or maybe even if you’re found innocent. The risk of co-opting civilian lawyers to lend the proceedings credibility. Oh, and the fact that US citizens still have common-law rights of access to the civil courts, just not nasty foreigners, even the nationals of allies.

As for international law – I have still to hear a credible argument as to why the Geneva Conventions do not apply to men captured on a battlefield, fighting for the then effective government in a region. I am still not convinced that the concept of “illegal combatants” (ie not wearing identifiable uniforms) is anything but a political fiction. Captured combatants are POWs until charged with war crimes and tried, or released at the end of hostilities. Otherwise, they are ordinary criminals to be brought before ordinary courts.

But the thing that really sticks in my craw? Western governments are beginning to treat the rule of law, and what Americans would call “due process”, as a shield for the enemy. Wrong. We abandon these things at our peril. When you relax standards of justice to counter terrorism you risk (strangely enough) unjust results and further radicalising the moderates whose support you need (does no one remember Northern Ireland?). And when we engage in legally dubious adventures such as a naval blockade of North Korea, or the occupation of Iraq, all we do is erode the spirit of international co-operation needed to successfully combat terrorism. Further, every dubious trial and detention in the US erodes the chances of any other power bothering to respect the Geneva Conventions if allied forces are taken prisoners of war.

Now I’m grumpy and want my coffee.


PS To answer the question put by everyone with a talkback show or newspaper column (namely, what crime has Hicks committed under Australian law?), he may have breached the Crimes (Foreign Incursions and Recruitment) Act 1978. The Act prohibits engaging in hostile activities against a foreign government while overseas, or training for that purpose, unless you’re performing your duty for the Australian government.