RIGHTS: Court Decisions Raise Hopes for Australian in Guantanamo Bay

By IPS Correspondents Reprint | | Print |

Bob Burton

CANBERRA, Feb 2 2005 (IPS) - For over three years Terry Hicks has campaigned for the release of his son David from the U.S. prison in Guantanamo Bay, Cuba.

He is hopeful that two recent U.S. court rulings, one determining that military commissions for Guantanamo Bay detainees are ”unconstitutional” and a second directing the Central Intelligence Agency to release documents on the treatment of prisoners – will be a turning point in his campaign to gain his son’s release.

”It’s quite a good decision,” Terry Hicks told IPS on the decision by Washington D.C. District Court Justice Joyce Green. ”Particularly the point about the information that was gathered under torture … those statements wouldn’t stand up in a civil court of law.”

On Jan. 31, in her decision, Justice Green wrote that while the U.S. government was entitled to take strong action to protect itself against attacks ”that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years.”

”No detainee, however, was ever permitted access to any classified information nor was any detainee permitted to have an advocate challenge the classified evidence on his behalf,” she wrote in her 75-page judgement.

Hicks was also buoyed by last week that the Central Intelligence Agency lost a Freedom of Information Act (FOIA) case in which it sought to deny the American Civil Liberties Union access to documents on the treatment of prisoners on the grounds they were operational files.

”I decline to find that its operational files warrant any protection from the requirements of FOIA,” Judge Hellerstein ruled.

The U.S. government now faces the prospect of further international embarrassment over the treatment of prisoners at Guantanamo Bay in Cuba and elsewhere.

But extensive sections of Green’s ”declassified” judgement have been blacked out, including part of her findings in relation to Mamdouh Habib, a Sydney man who was flown home from Guantanmo Bay last Friday.

Green details Habib’s allegations of torture, including being imprisoned in a room filled with water ”to a level just below his chin as he stood for hours on his toes”.

After seven blacked out lines, Green notes that even the U.S. military’s Combatant Status Review Tribunal (CSRT) ”found the allegations of torture serious enough to refer the matter to the Criminal Investigation Task Force” relating to Habib.

Her judgement also cites an Aug. 2, 2004 document from a person ”apparently affiliated with the Federal Bureau of Investigation”..

The report stated that on visits to Guantanamo Bay ”on a couple of occasions I entered interview rooms to find a detainee chained hand and foot in foetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18-24 hours or more.”

A gaunt Habib has not spoken to the media since arriving in Australia last Friday after being released without charge following three years of imprisonment in Guantanamo Bay. His lawyers are assessing the possibility of legal action against both the U.S. and Australian government over his treatment including evidence that he was tortured.

While Habib was freed, the 29-year old David Hicks remains in captivity after being arrested in Afghanistan in December 2001 by U.S. forces who allege he was fighting alongside the Taliban. Late last year he was charged with war crimes by U.S. authorities and was scheduled to be the first Guantanamo Bay prisoner to face a military commission in March this year.

However, his hearing was suspended in December after another court decision, which found that aspects of the military commission process were unlawful. Terry Hicks believes that the latest decision may well delay his son’s case even further as the U.S. government is expected to appeal against the decision.

While the decision strengthens his son’s legal rights, Terry Hicks is dismayed by the refusal of the Australian government to take up the case of his son. ”They are just happy to let the (North) Americans coast along with it,” he said.

”I actually think the Australian government should sit down with them and nut something out. If the statements have been taken under torture, stress and duress the charges should be squashed and David released and sent home,” he added.

The failure of the Australian government to ensure that David Hicks is subject to a fair trial is causing deep concern in the legal community too. The Law Council of Australia argues that military commissions violate the basic legal rights of Guantanamo Bay detainees and are incompatible with ensuring a fair trial.

Law Council President John North described the Australian government’s position as being to ”maintain support for the U.S. government’s approach, even in the face of judicial criticism”.

However, Australian Attorney-General Philip Ruddock said the government would not change its position on Hicks in light of Green’s findings. ”What we’ve said is that if the United States is proceeding to charge people, those issues ought to be dealt with,” Ruddock told the ‘Australian Broadcasting Corporation Radio’ on Tuesday.

Earlier this week Australian Prime Minister John Howard met with Singapore Prime Minister Lee Hsien Loong to plead for clemency for a 24-year old Melbourne man convicted of heroin trafficking and sentenced to death.

For Terry Hicks, Howard’s willingness to shun his son’s case but embrace another is hypocritical. ”David is an Australian citizen that I believe is not guilty of anything and they don’t care. They are hypocritical. They do what they can for one and let the other hang in limbo,” he told IPS.