2011-04-26 Open Letter to Kevin Rudd: On Julian Assange and Guantanamo Bay revelations.

Kevin Rudd
Minister Foreign Affairs
PO Box 6022
House of Representatives
Parliament House
Canberra ACT 2600
AUSTRALIA

Dear Minister
1) Julian Assange and Wikileaks.

Firstly I would like to say that the international community who support Julian Assange would undoubtedly thank you for your support of him on the issue of his legal rights in the UK and scotching the threats made by your colleagues the prime minister Ms Gillard and attorney general Mr McClelland to cancel his passport late last year. Your support of human rights in relation to Julian Assange is to be commended, including the intercession of our diplomats on his behalf asking certain questions of Swedish authorities (1) which it is assumed emanated from your good offices.

More could be done for example to point out to the European Union that their European Arrest Warrant System is disgracefully flawed and subject to serial abuses by member states (especially Poland) now that showing a prima facie case has been removed entirely from extradition procedures in the European Union’s EAW system. Australia as you would likely be aware, did not extradite without the applicant nation showing a prima facie case up until 1985 when the “no evidence” and “dual criminality” provisions became available to applicant nations under amended legislation.(2) Where subjected to abuse, prima facie requirements should be reinstated.

As you are also no doubt aware the US Department of Justice is leaving no pebble unturned in their vengeful attempts to find - or more likely - manufacture some evidence against Julian Assange for a charge of conspiracy to commit espionage.

This is happening despite First Amendment protections which the DOJ’s epigones are attempting to undermine as they engage in polemical arguments using gymnastic semantics in the US media, in an exercise to assert he is not a journalist as a means to preclude those rights, contrary to the US constitution.

It has been said that a US grand jury can be persuaded to indict a ham sandwich and it is quite likely that a sealed indictment has been prepared by a Virginian grand jury awaiting the outcome of the UK’s extradition proceedings or the legal proceedings against Mr Assange in Sweden should he be extradited there. Sweden has a bad record in allowing rendition at the behest of the CIA and consequently there is a legitimate question as to how the Swedes would behave in a US request to extradite Julian Assange before legal proceedings occur in Sweden.

If, as many in the world suspect, that the Swedish charges will give way to a US extradition, there will be some major headaches at your Department, not the least of which is the fact that a majority of voters supported the release of the diplomatic cables and by direct inference the activities of Julian Assange.(3)

Should the Australian government not vehemently oppose this further extradition, there will be – and I only predict this - a political fallout the likes of which the Australian polity has not seen since the demonstrations against the Vietnam war and more recently demonstrations by ordinary Australians against the wanton killings by the Indonesian Military in East Timor in 1999, which Honourable Minister, you will have well noted at the time, overcame the Jakarta lobby influencing the Howard Government to acquiesce in the crimes of the Indonesian military.

In this case, the Australian US Alliance will come under significant threat when it will become quite clear that a proverbial Australian “underdog” becomes the subject of contempt for his rights by the untrammeled violence of a US legal system, seemingly out of control by any reasonable standards of justice for foreigners. He has already been labelled as a “high tech terrorist” by no less than the US Vice President, Joe Biden.(4)

The way that Bradley Manning, a US citizen, is being treated while his trial is delayed for unclear reasons, is a firm indicator that if Julian Assange is extradited, that he will be held for a long period of time on remand, likely under similar appalling conditions to Bradley Manning, for trial, with the hatred and vitriol of so called US “patriots” in the media every day baying for his blood.

This will all undoubtedly preclude a fair trial: Julian Assange will become the scapegoat, (among others like Bradley Manning) for all the abysmal negligent failures and debacles of US foreign policy in the last decade or so, of which you are well aware as a foreign policy expert. All that he has done is to be the messenger of the information, including the diplomatic cables which has revealed those failures and debacles beyond any doubt, along with prima facie war crimes and crimes against humanity.

With friends like the USA making a complete hash of divide and conquer strategy in the Middle East of late, and little old Australia still embroiled in futile, historically proven senseless wars like in Afghanistan where we appear to be at the US’ bidding: who needs enemies in a rapidly developing multi-polar world?

Is it too much to ask that Australia could develop a mildly independent foreign policy? Are we still beholden to the USA for the naval battles of Midway and the Coral Sea in perpetuity? Why isn’t your colleage attorney general investigating for prosecution under our laws, those in the US inciting the murder of Julian Assange or at the very least publicly saying it’s unacceptable?

Those are likely rhetorical questions, Minister, as many are aware of the supine nature of Australian foreign policy in relation to the US, the fawning and servility of Australian Prime Ministers in Washington is ongoing and unbecoming a nation proud of its achievements and heritage, especially that of a “fair go”. All that posturing should be left to former prime ministers on US cocktail circuits for politically rejected “deputy sherrifs”.

And therein lies the problem for the protection of the human rights of Julian Assange by Australian politicians with the noted exception of yourself and some others.

We the supporters of democracy and justice worldwide urge you to continue to defend the rights of Julian Assange with his organisation to inform us. Without a free press disseminating information we cannot have a true democracy. Our very own High Court has ruled that we have an implied right under our constitution to political communication, as a prerequisite to democracy, a mirror image in part of US First Amendment rights.

For an update Minister on matters relating to Julian Assange please refer to a meeting held at Parliament House Canberra on 2nd March this year: http://wlcentral.org/node/1414

2) The Guantanamo Bay leaks.

Minister, you are undoubtedly aware of the most recent leaks and likely your staff have already downloaded the Pdf files on Habib and Hicks. These disclose proof that the treatment of Habib in Egypt was particularly egregious, a clear violation of the Convention against Torture. The report on Habib in part said While in the custody of the Egyptian Government, under extreme duress(5) he made certain admissions. Those admissions were palpably false and made as a result of torture and reinforce the impracticality of torture as well as its illegality: that victims will say anything to make the torture stop and further, any evidence given in those circumstances is inadmissable in any fair court with the likely exception perhaps of Military Commission Tribunals soon to be reinstated after the further unwise decision by President Obama to allow trials in Guantanamo by that Tribunal process, a process on his presidential campaign trail you might recall that he labelled as “flawed.”

Any convictions of inmates will be accordingly tainted by such unfair processes, where hearsay evidence rules remain degraded and the world notes that all the defendants are “aliens” never US citizens If the truth is that the commissions are too unfair to be used on U.S. citizens, they're really too unfair to be used on anyone .(6)

Mr Habib was a victim also of Australian complicity in the torture perpetrated upon him, a sad reflection on the Howard government’s gross dereliction of duty to an Australian citizen, the bill for damages at legal settlement picked up by us the Australian taxpayers, (more disgraceful fruits of servile foreign policy, Minister) instead, (from a moral viewpoint) of being prised from the pockets of those wilfully negligent ministers responsible.

In the case of David Hicks, the report is stuffed with hyperbole, supposition and exaggeration, redolent of the excitable, juvenile and paranoid behaviour of the Japanese spy chasing Kempeitai in WW2 whose belief in the Greater South East Asian Co-Prosperity Sphere is matched in the modern era by US military belief in the infalliable ways of yet another “Emperor” and the “Pax Americana” of eternal wars.

One suspects that the Commonwealth’s lawyers have already advised you Minister that Hicks’ so called guilty plea to a charge of supporting a terrorist organisation, is a legal nullity. Conceived by John Howard to neutralise the issue shortly before the 2007 election, a guilty plea founded in coercion – being locked up for five years without charge – is not and never can be valid. The plea was made under the most severe duress that the banality of illegal detention – contraventions of Common Article Three of the Geneva Conventions -- in the black hole of Guantanamo Bay could perpetrate and still perpetuates.

The fact is that the Howard inspired “deal” was founded in grubby political necessity, coercion and duress which makes it a nullity and it should publicly be refuted by the Australian government. That “deal” with the Bush administration was a disgrace and has no foundation in justice as any jurist will tell you. And that’s not even mentioning retrospective laws unknown to Hicks at the time he allegedly committed them, laws which even John Howard was not game enough to enact.(7)

It is likely therefore that the real reason for the delay of confiscation of the proceeds of Hicks’ book under the Proceeds of Crime Act, (not primarily Senator Brandis’ assertions of fear of a lefty backlash [8] although such a backlash would be forthcoming) is that Hicks lawyers might rightfully ask for a ruling on the validity of his guilty plea on an international law basis (Geneva Conventions, Convention Against Torture etc) and if that was granted, the Australian government might not like the resulting judgement, and possible legal costs for his defence awarded against the government.

That in turn would open up a whole raft of claims by Hicks against the government and to coin a phrase some would likely say in relation to confiscation litigation: bring it on.

Lastly Minister, as Senator Teddy Kennedy once said It’s a big job cleaning up after a big elephant an interesting turn of phrase impliedly referring to the symbol of a particular political party. Likewise with Hicks and Habib there is some cleaning up still to do as Habib pursues the Egyptian government. Hicks has yet to overturn his false conviction but still the revelations keep coming.

Were Julian Assange to join their ranks, banged up similarly in some other US hell-hole, you will really have a monumental “clean up” job to do and accordingly I strongly urge you to head it off by telling the US in no uncertain terms to cease and desist, the majority of Australian people will never accept it and the US risks severe damage to the Alliance.

Friends listen to each other's legitimate arguments and if they don't the friendship weakens. Is that what the US wants in their blind rage of wanting to metaphorically shoot the messenger (some literally) and to hell with the consequences? Is that justice for an Australian citizen for which much of the world has great respect?

We wish you well Minister and trust you will continue to support the human rights of all Australians and the rights of those so cruelly violated in the middle east, particularly Bahrain at this moment in time.

Kevin Rudd can be contacted here: Kevin.Rudd.MP@aph.gov.au

Yours Faithfully
Peter Kemp
Solicitor of the Supreme Court of NSW

References:
1) http://wlcentral.org/node/1325
2) www.aph.gov.au/house/committee/jsct/extradition/agd.pdf
3) http://www.crikey.com.au/2010/12/20/essential-voters-support-wikileaks-a...
4) http://archive.truthout.org/on-julian-assange-and-inciting-whackers66788
5) http://wikileaks.ch/gitmo/country/AS.html
6) http://writ.news.findlaw.com/mariner/20091104.html?pagewanted=all
7) http://www.smh.com.au/news/national/retrospective-law-all-right-for-hick...
8) http://www.abc.net.au/news/stories/2011/03/11/3161807.htm