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Published ABC The Drum 31 May 2011

At the Sydney Writer’s festival on 22 May, David Hicks gave a detailed account of how he was tortured while a prisoner of the United States government at Guantanamo Bay. The audience found his account so compelling they gave him a standing ovation, all 900 of them.

David Hicks was also critical of media reporting of his case. After years of being portrayed and explicitly described as a terrorist in newspapers and on television, it’s difficult for him to shake the terrorist label, even though no evidence has been produced warranting the description and he has never been put on trial or broken any law. Nor had UK Guantanamo torture victims Ruhal Ahmed, Shafiq Rasul, Bisher al-Rawi, Omar Deghayes, Moazzam Begg and others, but it’s notable that their country secured their release without requiring that they first bow to a quasi-judicial abomination and then agree to being gagged about their mistreatment. They have been compensated by the British government. An investigation is underway into the knowledge and possible involvement of British intelligence agencies in torture. David Hicks is a key witness in these inquiries.

Earlier this year Julia A Hall, Senior Counsel Counter-Terrorism, Amnesty International said:

“…Victims of rendition and secret detention. The other labels that these victims have which has made it so difficult…to advocate on their behalf and that is because of the other labels that have applied to them. Labels like terrorist. Labels like national security threat. Labels like Islamic militant. These labels do not rest easily with their status as victims. If the discourse is they are in fact terrorists or national security threats, we have had a hard time as advocates of also saying that they’re victims as well. A by-product of that difficulty has been that we have angled a lot in our advocacy. We’ve said, well okay, the governments have been very successful in casting victims of human rights violations as terrorists and national security threats first. How can we get around that? How do we have legitimacy as lawyers and human rights activists when that discourse is so powerful and the government are in league in that way. In many instances over the last eight years instead of relying, for example, on the absolute legal prohibition and moral abhorrence of torture and enforced disappearance to advocate on behalf of victims, many of us really resorted to more instrumental arguments. We’ve avoided the moral argument…these behaviours [torture] were illegal under any circumstances and they were immoral in all circumstances…It has been very difficult to humanise victims of rendition and secret detention…we want better long term results in terms of accountability and we want to have public support for that accountability….”

It’s an example of that insightful maxim, what you call something governs the way you perceive it. To paraphrase it for Hicks: what the government, in cahoots with the press, calls someone governs how they are perceived.

Simplistic and inaccurate characterisation is a habit that dies hard for some Australian journalists, shock-jocks and opinion writers who were only too willing to point out that “Hicks ain’t no Che Guevara” when hearing of his standing ovation at the Sydney Writers’ Festival. It’s one thing to say you don’t agree with the assembled throng, but to denigrate the judgement of such an audience as, “the eagerness of this naive crowd”, is quite another.

Hicks remains under a suspended sentence, part of the plea agreement extracted by an unlawful military commissions system. The original military commissions were struck down by the US Supreme Court but reconstituted before the Alford plea agreement with Hicks. After five and a half years incarceration how could he not sign an agreement that guaranteed he would be out of Guantanamo in sixty days?

There is still a push in some quarters of the press and the parliament to try and keep Hicks dehumanised and on the fringe. They want him to remain demonised and they want to keep him gagged. That he may have popular support worries them. By hounding him with threats of action under the Commonwealth Proceeds of Crime Act 2002 they are attempting to keep the lid on the truth about his torture at the hands of our closest ally without understanding that there is an optimal level of criticism or legal coercion. Go beyond that point with personal criticism, or by bringing the weight of authority down on a single citizen, and the spotlight spreads its light. It comes to illuminate the conduct of all of those involved, including those of Hicks’ critics who were and are responsible for leaving him to languish without proper support.

It was always on the cards that when Hicks eventually was able to put his side of the story the official line would disintegrate.

Hicks outlined his allegations of torture to an audience aware of reports detailing the neglect of medical evidence of torture in Guantánamo Bay, reports of torture and cruel, inhuman, and degrading treatment of prisoners there and George Bush’s torture admission.

The US is aware of the potentially serious personal consequences these actions might have for its government officials: leaked State Department cables already show that the Obama administration has interfered with the judicial process in Spain and engaged in a political campaign to block Spanish courts from securing accountability for torture and other egregious violations of international law that were planned, authorised, and committed by Bush administration officials at Guantánamo and elsewhere.

With his mate Bush’s admissions, and with the details provided by Hicks about his torture at Guantanamo Bay, will former Prime Minister, John Howard, repeat his earlier denial of torture?

Problems of mischaracterisation and misreporting aren’t limited to the tabloid press and instantaneous media. Respected ABC journalist Leigh Sales (author of Detainee 002: the Case of David Hicks) told the Sydney Institute in 2007:

“….Myth 2 – Hicks was tortured at Guantanamo Bay. This is also incorrect and there is a very simple explanation why. Interrogators at Guantanamo Bay never had to use any harsh interrogation techniques on Hicks because he sang like a canary from the first day he was captured.
Hicks never faced some of the questionable techniques which have caused the Bush Administration so much grief – the dogs, the strobe lights, the sleep deprivation, the loud music and so on. Certainly other prisoners at Guantanamo did, Hicks did not….”

At the time she made that speech Sales’ book stood alone, and it still stands as an “authoritative” source. It has been interpreted by some as adding “….weight to the probability that Hicks either invented or greatly exaggerated his claims of physical abuse at the hands of his American interrogators…” Although Sales suggested that a writer must get as many different viewpoints as possible so that the conclusions ultimately reflect a whole lot of different views, she admitted when asked about access to Hicks after his return from Guantanamo Bay that “…. I have not met him and I haven’t spoken to him. He’s still undecided about whether or not he wants to speak to the media, he’s trying to keep a fairly low profile at the moment and figure things out……”.

The Sales book is all about Hicks but he had no voice in it. In a letter to Sales of 15 February 2007 Hicks’ lawyer, Joshua L Dratel, specifically said:

It would be unfortunate if your book adopted a negative slant, and accepted unconfirmed claims by persons with agendas that do not reflect the facts, because David and his lawyers have declined to cooperate with you in assembling your book. There are a multitude of prudent legal and other reasons why David is correct in choosing that path. Among them are the attorney-client privilege, the duty to adhere to instructions by a client, and the corresponding obligation to act in David’s best interests.”

Yet in May 2007 Sales claimed that Hicks “….ordered his lawyers and family not to co-operate with my book Detainee 002, a decision I believe is about protecting his future opportunities….”

Some favourable reviews when the book was released ignore the fact that it shed little light either on the situation in Guantanamo as it related to Hicks or on the sequence of events which saw him imprisoned. Why the rush to print if lack of co-operation from the subject meant more research was needed into the other side of the story? While the book was being written Howard was struggling with the Hicks monkey on his back. The book release in May 2007 coincided with Hicks’ release from Guantanamo, but the monkey stayed on Howard’s back until he lost the October 2007 election.

The Sales book told us little about Hicks the man or about his torture or about the conditions inside Guantanamo Bay Prison, but with Hicks coming out at the Sydney Writers’ Festival we now have another version of his treatment in Guantanamo.

Retailers of Hicks’ book are returning copies to the publisher, apparently for reasons unrelated to demand. What is driving this and why? What’s that line in Subterranean Homesick Blues: “Johnny’s in the basement mixing up the medicine. I’m on the pavement thinking about the government…”?

Hicks has never been shown to have been guilty of anything, and now that the system that incarcerated and abused him has been exposed for what it is (or, hopefully, was), a public acknowledgement of how Australia let Hicks down might be appropriate, particularly in light of his own testimony. But why should we take his word for it? We aren’t suggesting we should, and we don’t expect he would either.

The Justice Campaign has called for an independent and open investigation into the David Hicks case, with special consideration to be given to allegations of torture and the political interference associated with his eventual plea deal. We support that call and undoubtedly we will hear similar calls from other sources. Inevitably the diehards will resist an objective, neutral investigation, but popular demand for truth will eventually prevail. It will be interesting to see the evidence that emerges under the scrutiny of an independent inquiry about the extent of the complicity of parliamentarians, government officials and writers and reporters in the unlawful detention and torture of an Australian citizen they chose to forsake.

The time for the definitive book on Hicks will be after the independent investigation. And without detracting from the price he personally has paid, David Hicks is only a point of focus of a bigger issue. The time for Australians to ensure their government protects the rights of all of its citizens abroad is long past. An independent inquiry just may reveal the extent to which, and the means by which, compliance with that obligation has been compromised for political expediency.

Bruce Haigh is a political commentator and retired diplomat
Kellie Tranter is a lawyer and activist