2011-10-14 Update: AG McClelland responds to 'Compounding the Crimes against David Hicks'

Responding belatedly to my letter of 2011/07/21, the Attorney General Robert McClelland (and therefore the Australian government) have made it clear (yet again) that the David Hicks matter and torture allegations is something to make pious platitudes about but otherwise, they have no desire to do anything else.

Here is the letter:


Note the following six points in summary form, made by McClelland's office:

1) Hicks had the advice of US and Australian counsel.

McClelland forgets what he wrote in the Age in July 2003

...we must not lose sight of how alien these military commissions are to Australians' expectations of a fair trial, based on our experience of our own criminal justice system. The processes are chalk and cheese.

Exactly, the process and "system"was flawed and somewhat redolent of Stalin's Show Trials in the 1930s where the methods used to extract the confessions included

...repeated beatings, torture, making prisoners stand or go without sleep for days on end, and threats to arrest and execute the prisoners' families.

As McClelland went on to write:

If tried in Australia, Hicks would be represented by a lawyer of his choice, with a safety net of legal aid. At the military commission, Hicks can retain a US civilian lawyer to assist his US military lawyer, but only if he can afford one.

While on the subject David Hicks legal representatives, what did his Australian lawyer David McLeod think about the matter?

NSW Bar Association publication (Pdf) interview of McLeod*

The military commission process that Hicks was subject to when McLeod was first appointed as his Australian lawyer was, to quote McLeod ‘a complete sham’.

...of course he was tortured. He was detained for over five years without a trial. He was placed in solitary confinement for a prolonged period. He was in a cell for 23 hours a day. He knew that the British detainees and also the other Australian had all been discharged from detention. He went for years without knowing what was going to happen to him. That is torture. It is physical and mental torture.

What was required was not defence lawyers so much as a government who could have - should have - done their duty:

McLeod again:
The government has to show some allegiance and support for its citizens when they are in trouble. The British went in to bat for their nationals. We didn’t. We let our national be the last Western man left in that bloody awful place. A new country ought to believe in itself enough to look after its own.

2) Hicks admitted to the Judge that he trained with terrorist organisations.

This was by the account of Lex Lasry, observer at the proceedings, somewhat orchestrated:

Many of the requisite rules and procedures were not in place and the there was a degree of improvisation by the Judge. This led to a situation where there appeared to be a preference for advancing the case and dealing with matters of substance by way of private conferences between the Judge and the parties. These conferences occurred away from public scrutiny, where no rules were necessary. Issues were resolved and then the outcome was presented to the public as something of a fait accompli. This carries obvious implications for transparency and raises questions regarding due process.

Further, it now appears that at the time that matters were being played out in the Military Commission hearing room on Monday 26 March 2007, the pre trial agreement in relation to Mr. Hicks’ plea of guilty had already been finalised. Thus, much of what was occurring was contrived and being done for public and media consumption. Even Hicks had a speaking role to play which he discharged at the appropriate time.

On the subject of training with a "terrorist organisation"

At the time that David Hicks was undergoing military training in Kashmir and Afghanistan, LeT was not a designated terrorist organisation and the final charge sheet does not suggest that he was a member of al-Qaeda.

3) The Australian government opposes the use of torture and cruel punishment however two US investigations (requested by the Australian government) namely the Office of the Secretary of Defence and the Naval Criminal Investigative Service - found no mistreatment or abuse of Hicks occurred.

That is not surprising. To use an old expression, it was a bit like getting the mafia to do an investigation on organised crime. The investigating bodies were not independent, to say the least.

How could the Secretary of Defence office properly investigate abuse after its boss Donald Rumsfeld ordered and condoned some of that abuse? Rumsfeld:

...approved interrogation techniques that included "removal of clothing" and "inducing stress by use of detainee's fears (e.g. dogs)."

Rumsfeld also approved placing detainees in "stress positions," such as standing for up to 4 hours, though he apparently found this approach unimpressive. Rumsfeld, who works at a stand-up desk, scrawled on the memo, "I stand for 8-10 hours a day. Why is standing limited to four hours? D.R."

One might ask Attorney General McClelland how those "investigations" can be reconciled to the general US policy of abuse and torture as reported (overwhelmingly proven beyond any reasonable doubt even if only on Bush's admissions of approving waterboarding) to have happened to so many others apart from David Hicks.

4) If David Hicks wants to contest his conviction he should do that in the USA.

This is disingenuous as well as being impractical and likely impossible as the Military Commissions 'remit' was in Guantanamo Bay without any appeal rights to US courts that this writer is aware of.

5) An "enquiry" is currently underway with the UN Human Rights Committee ["Communication"] and the Australian government is "responding".

And taking its time.

[Senator Ludwig 29/09/11] The government's response to that submission was, I think as correctly outlined, due to be lodged with the Human Rights Commission in May. But this has been delayed until the third quarter of 2011. It is, I am advised, expected to be released very shortly.

6) The Australian government does not intend to conduct an inquiry into Hicks' detention or conviction.

No direct reasons are given, but it is implied that the Communication to the UN is sufficient: it is all round, a huge embarrassment for an Australian government, (client state and lackey some might say) to be asked to investigate the major ally for war crimes/crimes against humanity.

A predictable but highly unsatisfactory response, which avoided all the torture/abuse allegations by saying in essence, "The US investigated itself in this matter and found itself to be exceptionally exonerated."

No comments on the unjust, unfair military commission process; no comments on duress and coercion and the fact that David Hicks was held for so many years without charge.

Disappointing, Mr Attorney General.

Afterthought: No mention at all of the prosecution currently before the Supreme Court of NSW under the Proceeds of Crime Act 2002.

* www.nswbar.asn.au/docs/resources/publications/bn/bn_winter08.pdf

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