The Guardian 23 March, 2005

Guantánamo — icon of lawlessness

Bob Briton

Amnesty International recently held a series of public forums dealing with the growing lawlessness on the part of governments in their execution of the "War on Terror". Representatives of the legal profession spoke about the trampling of human rights in the US, in the legal "black hole" of Guantánamo and in Australia giving chilling detail of how long established safeguards have been short-circuited since September 11. And while the panellists were able to point to some victories in the see-sawing battle to regain these rights, fears were expressed for what could well happen in Australia after July 1 when the Howard Government consolidates its power with control over the Senate.

In Sydney, Amnesty International's independent legal observer at the Guantánamo Bay military commissions, Jumana Musa was able to give a first hand account of what the proceedings of these kangaroo courts look and sound like and to pass on her impressions of how Australian David Hicks is coping with his detention:

"… On first glance, you look at David Hicks and your very first thought is 'he's not a very big guy'. The second thing when you look at him is that he looks very withdrawn. He didn't make eye contact with anybody. You didn't really see any facial expression and it occurred to us that this may be the first time in years that he had been in a room with this many people and that these people weren't wearing orange jumpsuits or camouflage. And that, in and of itself, was quite stunning… He was, at that time, being held in solitary confinement. That's just one small indication of what the Bush Administration's War on Terror is doing to people."

Jumana gave considerable detail on just how the Bush Administration went about setting up Guantánamo as a place where US laws and international covenants do not apply. She explained how people have been detained on the US base for extended periods without charge in spite of Constitutional guarantees of Habeas Corpus; how they have been charged with offences (like membership of al Qaida or the Taliban) that did not exist at the time they were committed; how the commissions can admit hearsay or evidence from anonymous witnesses in secret sessions that are closed to the accused and his civilian attorney; how even the detainee's military attorney is not able to discuss the details of this "evidence" with the accused; how there are no guarantees as to the accuracy of any translations used in proceedings.

Ruddock condones torture

Hanging over all these dubious processes is the chance, or even likelihood, that torture has been used to advance the case against the "bad people" detained at Guantánamo. In the wake of the revelations about the torture performed on detainees at Abu Ghraib, military and legal representatives of the Bush Administration have issued memo after memo defining and redefining "torture". The Abu Ghraib scandal was explained away as an isolated incident perpetrated by undisciplined staff.

However, as Jumana pointed out, the US government is now discussing the use of torture in a way which would have been inconceivable even a decade ago. And it is not just a case of "only in America!" Particularly relevant for her Australian audience was her account of a discussion with Australia's Attorney General Philip Ruddock. She was appalled that he approved of the fact that Australian citizens could be tried at the US military tribunals and, with only a few suggested changes, he was OK the procedures of the tribunals.

"One of the ideas he was OK with was that, in front of these proceedings you could admit evidence obtained by torture. And the reasoning was, well, you get to judge the probative value of it, you can look at it and say, yes, there was torture and you put that against what you think that it is and whether it should it be admitted or not."

Jumana noted that since the US Supreme Court ruled last June that detainees could challenge their detention before a US Federal Court, there has been a flurry of such petitions. Unfortunately, the Bush Administration has been busy, too.

Another panellist, Irene Baghoomians returned to Australia last year after working for the Centre for Constitutional Rights (CCR) — a US non-profit legal and educational organisation. Irene worked on the Alien Torts Claims Act and civil rights cases including those of Guantánamo Bay detainees. She described how the US government has been working to stay one step ahead of the movement demanding respect for human rights.

Several months after the Supreme Court decision, the military are still locking detainees away from meaningful contact from their lawyers and the courts. The strength of a dissenting judge's opinion in the above-mention Supreme Court case (Rasul v Bush) has encouraged the administration to take the issues involved to the appeal courts.

In the early days of that trial, the CCR filed a petition with the Inter-American Commission on Human Rights — the judicial branch of the Organisation of American States. The US rejected the demand the finding of the OAS that a proper tribunal to determine POW status be established, saying that such questions are outside the OAS Charter and that, in any case, its rulings are not binding on the US!

Simeon Beckett of the Australian Lawyers for Human Rights had a similar message about the situation in Australia with the adoption of the legislation giving ASIO detention powers. He pointed out that, while the bulk of the reactionary legislation stands, a number of the more outrageous aspects of it were overturned as a result of reviews by Parliamentary Committees.

As the result of the discussion of Committees, children under 16 years will not be detained or strip searched and detainees will now have access to a lawyer. Simeon fears that when the Howard government finally gets its majority in the Senate that the slight moderating effect that can come from an airing of issues in Parliamentary Committees will cease.

The community will lose one of the few vehicles for public examination of disturbing legislation like the ASIO Act. That legislation also blocks any media efforts to report on the workings of ASIO — a fact that also makes it harder for the relevant NGOs to be aware of further threats to democratic rights.

Simeon also described the ludicrous measures the Howard Government has implemented to hound certain Australian citizens that the US authorities do not like. These are amendments to the Proceeds of Crime Act, which now has an expanded definition to include offences committed outside Australia:

"The definition, and I'll read it to you because it really is extraordinary, 'an offence against a law of a foreign country, includes an offence triable by a military commission of the United States of America established under a military order of November 13, 2001, made by the President of the United States of America and entitled Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.'

"So there you are. There's a provision that doesn't even extend to any other military commission worldwide, it just seems to be aimed at two certain individuals, I'm sure you can guess."

The ASIO legislation was also the subject of comments from Justice John Dowd. The former attorney-general with the Greiner Liberal Government of NSW also noted in passing that laws with strong penalties already existed for the offences now incorporated in various "anti-terrorism" legislation in Australia and the US. He also condemned the seedy politics behind the retrospectivity of some of the charges keeping the detainees in Guantánamo — detainees like David Hicks:

"He did not commit offences at the time. People forget, it was the US that changed sides in Afghanistan, and you know we were on the Taliban's side. The Taliban and al Qaeda had been working together with the US. The US changed."

Justice Dowd was very concerned that the rights of ordinary citizens before the law were being sacrificed in a drive to get powers that will do little to discourage terrorists:

"A terrorist who is prepared to kill his or herself is not really worried about the penalties. But what hangs off it are all the other things you will lose: the right to bail, the power against listening devices. These are the powers we are giving to ASIO. I would rather have people investigated by police than spooks. The Attorney General's press release the other day said we are going to have thousands of them employed in ASIO by 2006…"

Jumana Musa summarised the fears of the panellists with a quote from a judgement in the US Supreme Court December 1866, following the Civil War. It is called Ex Parte Milligan. In it Judge Davis says this: "Out of protection of the law, human rights are secured. Draw back that protection and they are at the mercy of wicked rulers or the clamour of an excited people." It is sobering to think that a decision made nearly 140 years ago should contain such a clear chastisement to the present-day governments of the US and Australia.

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