Guano Bay

This is Tony Harris’s latest column.   But I wanted to add by way of introduction that Tony removed a great joke from it – which I’ve resurrected for Troppodillians.  Namely “The one good thing about Phillip Ruddock’s recent setbacks  is that the egg on his face improves his pallor.”   NG

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Guano Bay

The minimalist view of human rights held by Attorney-General, Philip Ruddock, has suffered several blows in the last 30 days. One of these is the June decision of United Kingdom’s High Court that anti-terrorism laws allowing home detention without trial breach Europe’s human rights convention. But Australia’s constitution protects few human rights so do not expect Ruddock – who sponsored equivalent legislation in Australia – to apologise for violating Australian rights.

Another Ruddock excess was his rejection of the views of the United Kingdom Attorney-General, Lord Goldsmith, that Guantanamo Bay’s military commissions prevented a “fair trial in accordance with international standards.” Goldsmith was protecting the rights of his incarcerated countrymen. Ruddock, more politicised and less legally competent, argued that commissions were lawful and fair to David Hicks.

The United States Supreme Court exposed Ruddock’s errors last month. It found that military commissions break basic tenets of American law. They also breach the Geneva conventions by not affording “all the judicial guarantees which are recognised as indispensable by civilised people.” It seems that Ruddock’s position is uncivilised. Others are more caustic. NSW’s public prosecutor, Nicholas Cowdery, describes the government’s approach to the Hicks matter as an “unprincipled disgrace”. Former chief justice of the High Court, Sir Gerard Brennan, talks about moral impoverishment.

Last month, John Howard blamed Hicks’ lawyers for delaying Hicks’ trial by indulging in legal disputation. But Howard has no need for a court saying that, of the Guantanamo Bay prisoners, Hicks has “committed more serious offences than most.” Ruddock offered no support for the presumption of Hick’s innocence: he is bound to a government which seeks no fairness, it just wants Hicks sentenced.

Then we heard last week that the United States accepts that key parts of the Geneva Conventions apply to Hicks and other Guantanamo Bay inmates. This overdue decision – detainees have been treated as illegal combatants undeserving of important convention protections – was neither sought nor welcomed by Ruddock.

If Guantanamo Bay’s prisons are the product of September 11, 2001, Australia’s detention camp on Nauru resulted from the arrival of MV Tampa off Christmas Island one month earlier. You might think it indulgent to equate Guantanamo Bay with Nauru (or Guano Bay as Australia’s detention facility might be called to give credit to the excrement which gave Nauru its first fame). America uses cages and torture. Australia has tents and only wants to deprive refugees of hope.

But there is an important similarity. A United States official confirmed that prisons were established on Cuban shores to achieve the “legal equivalent of outer space”, to be immune from United States law. Australia chose Nauru for the same reason: the government does not want boat people to enjoy Australian legal protections. How then did Ruddock recently claim, “In the United States, as in Australia, there is an acceptance that the rule of law prevails”?

The Australian government’s new Pacific solution meets one of the requirements of the refugee convention – not to return refugees to their country. But Ruddock, a former immigration minister, knows other provisions would be breached. There is a requirement not to punish refugees on account of their illegal entry or presence, and Australia agreed to provide refugees with access to Australia’s courts.

Ruddock also knows that the refugee convention would collapse if every signatory adopted Australia’s policy. Of course, that will not happen: most states will not allow neighbours to export their asylum seekers. It is only mendicant countries such as Nauru – which, by the way, has not accepted the refugee convention – that can be bribed.

In discussions about the Howard government’s policy, scant attention has been paid to Nauru’s views. Australian Ministers are confident that what they decide Nauru will accept. This patronising says much about Nauru’s grasp of its rights and sovereignty. It also says much about Australia.

But there is an important difference between Guantanamo Bay and Nauru. If the government succeeds, asylum seekers arriving by boat will not have the protection of Australian law. Those in Guantanamo Bay have had the benefit of a Supreme Court which has twice repudiated the Bush administration. The good news is that Ruddock has a number of chances to redeem his reputation. If he ignores them, he condemns it.

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Chris Lloyd
Chris Lloyd
15 years ago

One of the charges against Hicks is “aiding the enemy.” Could someone explain to me how this could be a crime? For an American to aid the enemy of America would be treason. For an Afghani to aid the Afghan army woudl presumably not be a crime, or half of Afghanistan would be detained. Hicks is neither American or Afghani – he is from a third country.

So is it the fact that if the US is at war with country X and a citizen of country Y aids country X, then they have committed a crime under US law? This would seem to mean that if I sent money to Hamas then the US could render me to Gitmo with extreme prejudice.

Tony is quite right that the purpose of Nauru is very similar to Gitmo. I guess there are two reasons why I am more upset about Hicks than Nauru. First, the refugees seem very obviously guilty – of pretending to be who they are not and aggressively trying to take advantage of legal loop holes. While Hicks appears to me to be guilty of nothing more than being a dangerous idiot who, perhaps luckily, has not caused any harm. So while the perversion of the system is certainly a worry, the outcomes in these cases are not equally worrying. Second, all conventions are not equal. Gitmo violates the Geneva Convention which most people hold in high esteem because it guarantees the absolute primitive basics of civilised behaviour. Nauru violates the 1951 Refugee Convention which is less iconic and was perhaps created to purge the west of guilt for refusing Jewish refugees prior to WW2. It involves what I would have thought are second order rights since it concerns compulsion to help people rather than prohibition to hurt.

But I am still against the governments refugee policy. I would prefer to see (1) the law here changed to place the onus of proof on refugees to prove their case, (2) refugees then processed in Australia, (3) still detained but in much better equiped government centres rather than privately run prisons and supported by members of the local communities.

Gaby
Gaby
15 years ago

Nice article Tony. All succinctly said.

By now it is hard not to just respond with blank incredulity at our Government’s hypocrisy.

Missed Howard’s statements about blaming Hicks’s lawyers for the delays to trial. F*** me!!!

Geoff Kenney
Geoff Kenney
15 years ago

For a blog that has usually been an oasis of rational discussion for most of its life, this is a most unfortunate lapse into an ad hominem rant. I don’t necessarily wish to become an advocate for Mr Ruddock, but I don’t think this post, if analysed logically rather than smartarsedly, does his stance any great harm. For example, as to the statement that the US Supreme Court exposed Ruddock’s errors last month, well, that is a matter of opinion. There is respectable argument that the court’s interpretation of the Genever Convention and the convention’s applicability to the Gitmo situation is bizarre. It’s a view. I wonder if the author attributes to our own High Court the infallibility he implies for the US Supreme Court. One commenter says that Hicks seems like a dangerous idiot, but then goes on to absolve him from having caused harm – on the basis of what evidence? The man was caught fighting for a foreign terrorist organisation, fighting our troops and those of our allies. He was not in the uniform of a state with which we were at war. In a declared war with another state the Geneva Convention would have legitimised his detention and even his execution with minimal formality. Maybe the Attorney-General does have a small amount of egg on his face, but Mr Harris has it dripping off his chin.

whyisitso
whyisitso
15 years ago

“Supreme Court which has twice repudiated the Bush administration”

The use of the word ‘repudiated’ here is taking hyperbole to a new high. A majority ruled that the process had some technical errors that are about to be repaired by legislation.

In WWII Hicks would have been excecuted in situ without a doubt for aiding the enemy while not being a regular soldier (in uniform) of that enemy.

tony harris
tony harris
15 years ago

Geoff Kenny correctly says there is a respectable argument that the Supreme Court might have erred in holding that Article 3 of the Geneva Conventions applied to Guantanamo detainees. But that is not the main point which is that the military commissions had major flaws in providing fair trials. Ruddock said they were fair, most say they are not. That list now includes a majority of the Supreme Court. The minority did not have to address this point.
Nor do I think that Hicks was caught fighting our troops – would not this be unlawful here? He was caught at a bus stop. And many Australians have fought (and are fighting) for a foreign country, including Hicks in Bosnia,when he was on the “west’s” side.
Finally, does Geoff really support the idea of execution with minimal formality?

whyisitso thinks that the military commissions failed on a technicality which can be legitimised by Congress. He might be right about the congress bit, although many commentators (including John Howard) think there are constitutional problems in trying to override the supreme court’s basic problems. But not providing legal protections expected of a civilised nation is not a technicality.
And why stop at WW2 – could not we find better solace in earlier and more barbaric practices which were legitimised by war?

Chris Lloyd
Chris Lloyd
15 years ago

In WWII Hicks would have been excecuted in situ without a doubt for aiding the enemy while not being a regular soldier (in uniform) of that enemy.

Yeah? Where did you get this from? Were allied soldiers executing every German farmer who had a picture of Hitler in their dining room as they swept through Germany? Did they execute every suspicious looking Austrian? I do not know the exact circumstances of Hick’s capture. If he was shooting at US soldiers then he deserved to get shot and presumably would. Since he was not shot I presume he wasn’t shooting.

One commenter says that Hicks seems like a dangerous idiot, but then goes on to absolve him from having caused harm – on the basis of what evidence?

Ahh..so you like evidence now? Can’t I just assure you that I have been reliably informed by the secret service? No? Well, the evidence for him “not doing any harm” is that the three charges he faces do not include killing anybody. The only evidence against him that we know of is that he was captured in the company of his loopy Taliban buddies.

The man was caught fighting for a foreign terrorist organisation, fighting our troops and those of our allies.?

He was caught fighting with the Taliban. It is only alleged he was with AQ. Fighting against Australian soldiers should surely be treason under Australian law. If it is true, I would be happy to have it proven and see him jailed here. But I again ask someone to explain why an Australian fighting against US troops should be a crime under US law when it is not a crime for Afghans to do so. Should being a mercenary at all be illegal? Fighting for money makes me sick, but fighting for another country against a third because you believe in their cause could even be noble. Hicks actually fought for the Kosovars before he joined the Taliban. Nobody is detaining him because he shot at Serbs and the Serbs do not have a warrant out on him. Is there any reason you folks can give why this whole Gitmo charade is necessary? Please don’t tell me that presenting the evidence will jeapordise intelligence sources. It is 4 years down the track now.

whyisitso
whyisitso
15 years ago

“Every night there is an exchange of fire. I got to fire hundreds of rounds “

tony harris
tony harris
15 years ago

whyisitso should know – and should have said – that his David Hicks quote – posted on 19 July – refers to Hick’s time in Pakistan when he was fighting in the disputed area of Kashmir. It is irrelevant to the charges he faces in the US, except that it is an example of his stupidity.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

It is also typical of whyisitso’s style of argument – well suited to an anonymous commenter. Essentially provocative without adding anything.

whyisitso
whyisitso
15 years ago

“He can fairly claim that at the time of capture he was under arms as a foreign volunteer for a sovereign government which he supported.”

Part of defence of Hicks written by Tony Kevin, former Australian diplomat, as quoted in Crikey website.

“he was under arms”. A lot different to a German farmer with a picture of Hitler on his dining room wall. Even if you allow him as a POW he is liable to be kept locked up until the end of the war, a long way off yet. He was under arms, presumably not in uniform – a shootable offence.

Chris Lloyd
Chris Lloyd
15 years ago

So combining your comment 4 with comment 10, you would have shot him on the spot would you Whyisitso? And they would not have in WW2 either. So think before you write.

He is liable to be kept locked up until the end of the war, a long way off yet.

What war is that? Afghanstan finished long ago. Please don’t tell me you are talking about the FARCICAL war against terror. When will it end? When did it start? It isn’t even a war at all according to the UN definition.

Instead of cherry-picking other comments (the German farmer was just a bit a hyperbole) and thinking you have made some debating point, how about you address the main issue? Which is “Why can Hicks not be charged and his case made public where we all get to see his accusers?”

whyisitso
whyisitso
15 years ago

“the German farmer was just a bit a hyperbole”.

How much of the rest of your comment was hyperbolic rubbish? I suspect most of it.

The trial will proceed when the so-called defence stops putting up blockages to proceeding.

Ken Parish
Admin
Ken Parish(@ken-parish)
15 years ago

The trial will proceed when the so-called defence stops putting up blockages to proceeding.

But the “blockages” consisted of daring to object that the “judicial” processes were little more than a hollow pretence, and bore little relationship to basic legal requirements as specified both under the Geneva Convention and under US domestic law (things like admission of evidence obtained under torture; denial of access to some evidence; denial of right to cross-examine etc etc). The US Supreme Court has just held that indeed the military commissions DID fail to conform to basic legal requirements of fairness. Labelling objecting to this as “putting up blockages” is a fairly extraordinary way of looking at it it, I would have thought.

BTW I don’t subscribe to the view that Hicks is a harmless dupe who should simply be released by the evil American hegemon. But I do think we (that is Australia) should have objected strenuously and on an ongoing basis to the denial of basic justice to one of our citizens. It’s shameful that Howard and Ruddock have not done so. You can’t defend the values of ordered liberty for which western democratic constitutionalism stands by expediently selling out the basic principles that create it.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

Yep, that’s right Ken. Add Beazley in there would you – though it is admittedly harder for oppositions, is it so hard to say ‘try David Hicks’.

John Quiggin
John Quiggin
15 years ago

“This would seem to mean that if I sent money to Hamas then the US could render me to Gitmo with extreme prejudice.”

In one of the Supreme Court cases in the US, the hypothetical example was given of a Swiss grandmother who sent money to an organisation, believing it to be a charity when it was in fact (more precisely, in the opinion of US authorities) a front for Islamic terrorists. The US attorney said that would indeed render her liable to both Gitmo and extreme prejudice.

Patrick
Patrick
15 years ago

Not to mention that the greatest harm has probably been done by the guilt-addled western governments who financed the PA for so many years, thus perpetuating an otherwise relatively insignificant conflict for a generation more than its ‘natural’ life, magnifying it beyond all proportion, and creating a generation of death cultists into the bargain.

That doesn’t necessarily mean that they were not right to give money and support to the PA, but it does suggest very strongly that they were at least extremely incompetent in how they did it.