27 January 2015
The rightwing campaign against David Hicks assumed his guilt, and made it seem a radical position to defend due process
‘The issues involved in detaining a man without trial are hardly obscure.’ David Hicks in 2013. Photograph: AAP
On 29 March 2007, then-Sydney Morning Herald columnist Miranda Devine ran a victory lap.
“By pleading guilty to terrorism this week,” she wrote, “David Hicks has plastered egg all over the faces of his supporters – the naive hysterics who believe he is a tortured innocent as well as those glory-seeking civil rights lawyers who have attached themselves to his case.”
Now, according to Hicks’s lawyer, the US government no longer disputes his innocence and is expected to overturn his conviction within the month. Boy, do those civil rights campaigners look silly or what!
It’s easy to ridicule pundits like Devine (and it’s fun, too) but there are serious matters at stake. David Hicks spent years incarcerated without charge. The issues involved in detaining a man without trial are hardly obscure.
“I am merely in favour of due process,” wrote Mark Day in the Telegraph as early as 2002:
Until or unless the allegations against Hicks and Habib are tested in court, we cannot be sure of their accuracy. We all live by the rule that, if we are accused of doing wrong, we should be tried in a court. The facts should be tested; we are entitled to lawyers to defend us and we cannot be held for lengthy periods without charge.
Scarcely a radical position, one would have thought. Yet, when initial news broke about Hicks’ capture, the Howard government launched a remarkable campaign against him, one more-or-less predicated on his guilt.
On 15 January 2002, attorney-general Daryl Williams declared Hicks “one of the world’s most dangerous people”, deserving of the treatment he received. Defence minister Robert Hill admitted he had no idea what law, in what country, Hicks had been broken – but agreed, nonetheless, he should be in custody. Alexander Downer explained Hicks deserved “harsh US retribution”.
Asked if he thought detaining Hicks indefinitely without trial was fair, John Howard replied, “Given the circumstances of Afghanistan I think it is, yes.”
Over the long years Hicks remained in Cuba, the Howard government continued to smear him, all the while dancing around the fundamental question: are Australian citizens entitled to due process or not?
Consider a typical interview with Alexander Downer, conducted by Catherine McGrath on the ABC’s AM programme in May 2003:
Catherine McGrath: “[Hicks] hasn’t been charged, has he? I mean, he’s been held since late 2001, no charges, he’s still there.”
Alexander Downer: “He’s been held though, let me just make this clear, he’s being held as an unlawful combatant, as somebody who was detained initially by the Northern Alliance and subsequently by the United States and he has been detained because he was involved with al-Qaeda and the Taliban apparently and in those circumstances – look inevitably, while a war is going on against al-Qaeda, there’s been an overthrow of the Taliban, there has to be a very strong policy put in place to secure our communities.”
Of course, Howard and his ministers weren’t alone. They were repeating lines voiced by Australia’s great and powerful allies. Defense Secretary Donald Rumsfeld explained, for instance, Hicks’ treatment on the basis that he was among the world’s most dangerous terrorists.
US President George Bush, in his childlike way, simply declared David Hicks and his five fellow non-Afghan Guantanamo inmates to be “bad people” – as if that settled the question of their basic rights.
The eventual 2007 deal involved Hicks admitting to having supported terrorism, as well as agreeing not to speak to the media for a year, withdrawing allegations of abuse and pledging not to take legal action against America.
Noting these extraordinary stipulations, Ben Wizner from the American Civil Liberties Union called the case a “symbol of our shameful abandonment of the rule of law”. He explained:
If Hicks is even remotely as menacing as the United States once asserted, then the government is grossly negligent to permit his release on these terms. But no one believes that to be the case. Instead, it is widely understood that the [US] government made extravagant claims that simply could not withstand scrutiny.
As, of course, had the Australian government. In a report for the Law Council of Australia, Lex Lasry dubbed the eventual bargain “a contrived affair played out for the benefit of the media and the public”.
Depressingly, though, so many in the media didn’t need to be duped. In fact, as soon as the Howard government faced pressure about Guantanamo, an array of pundits lined up to run interference.
When, in October 2003, Bob Brown sought to raise the denial of Hicks’ rights, Janet Albrechtsen accused him of “craven barracking for the enemy”.
‘The Americans have guaranteed due process for Guantanamo Bay detainees but not the deluxe version,’ she explained.
For Miranda Devine, on the other hand, those calling for justice for Hicks were fuelled by “isolationism”, “anti-Americanism” and “anti-Semitism, or at least the belief that Jews are to blame for all the troubles in the world”.
Gerard Henderson, at least, acknowledged that “there is evidence [Hicks’] incarceration is unduly harsh” and that he was “entitled to a fair hearing in the US in accordance with legal process”. But rather than suggesting how this hypothetical “fair hearing” might be achieved, Henderson moved immediately to the more politically palatable business of rubbishing Hicks’ supporters.
Over the last weeks, we’ve heard a great deal about political principles, as, in the wake of the Charlie Hedbo massacre, politicians and pundits declared free speech inviolable. Opposition to arbitrary detention is, of course, just as fundamental.
Now that Hicks’s former captors concede his innocence, they will soon move to quash his conviction. In its campaign against him, the Howard government abandoned basic democratic principles – and sections of the media cheered it on. The campaign against Hicks dominated public discourse; let’s hope Hicks’s critics recant their former views with the same vigour.