Getting away with torture

In their recent report "Globalising Torture", the Open Society Justice identifies Australia as one foreign government that aids the United States in its "torture program". The report confirms, as has long been known, that diplomatic assurances of humane treatment are insufficient to prevent grave human rights violations, and that culpability for torture does not rest solely with the principal perpetrators like the United States but with all complicit governments.

The cases of Mamdouh Habib and David Hicks, and now that of Prisoner X - the Australian/Israeli Ben Zygier - confirms the view of torture prevention organisations that transparency is one of the most important steps towards the prevention and eradication of torture.

Who has been held to account in this country?

In 2011 Vivienne Thom, Inspector-General of Intelligence and Security, released her report "Inquiry into the actions of Australian government agencies in relation to the arrest and detention overseas of Mamdouh Habib from 2001 to 2005". It details the failures of our intelligence agencies, the Department of Foreign Affairs and Trade, the Australian Federal Police and the Federal Government, but makes no recommendations about clarifying whole-of-government responsibilities. The report's narrow scope also meant that it left out any reference to Habib's treatment in Guantanamo Bay.

Respected UK human rights lawyer Gareth Peirce has said, "Guantanamo could never have perpetuated itself, never, if it had not had the endorsement of countries around the world."

Nothing illustrates this more clearly than a 2006 US embassy cable published by WikiLeaks:

"Media attention to the Hicks case follows a wave pattern over time. We are currently observing a peak. The suicides of the three Guantanamo detainees provided an opportunity to Hicks' defense team, which has generated public antipathy to his continued detention with the assistance of sympathetic media. John Howard and his Government have taken pains to defend our actions consistently, even if it costs them short term political points."

Taking pains to defend the actions of the United States obviously required the Australian government to put to one side allegations of torture made by Hicks and his lawyers, the public testimonies by detainees released before Hicks describing their torture, leaked reports from the Intentional Committee Red Cross outlining torturous treatment of Guantanamo Bay detainees, the rejection of calls for an independent medical experts to assess Hicks' condition at Guantanamo Bay, the release of emails written by FBI agents that tell of harsh treatment against detainees at Guantanamo, the high ranking Bush Administration officials who blew the whistle, the Torture Memos, findings of the Council of Europe and more importantly, the pleas of his family and concerned Australian citizens.

Instead former Minister for Foreign Affairs Alexander Downer said that the Australian government had sought and received diplomatic assurances from the highest levels that Hicks was being treated humanely. That was of little comfort when one examined the 2005 Human Rights Watch report, "Still at Risk: Diplomatic Assurances No Safeguard Against Torture" which was reinforced by the recent "Globalising Torture" report.

For its defence, the Howard government relied on a 2004 letter and associated report from Ryan Henry, Principal Deputy Under Secretary of Defense to Michael Thawley, Ambassador to the US Embassy of Australia, stating that it found no evidence of abuse of Hicks. A 2005 US Naval Criminal Investigative Service's (NCIS) confirmed Henry's report, finding no evidence of maltreatment or abuse.

The investigations that were ordered by the US Department of Defense into their own colleagues were described as a farce by high-ranking US officials. Colonel Lawrence Wilkerson described them as "a farce … I know this kind of abuse happened. I've talked to people who participated in it - CIA, military and contractors."

The NCIS documents have never been released publicly by the Australian government but have been relied upon by successive governments to deny Hicks' allegations of torture. However, one of the reports, which has been viewed by one of the authors, presents a very different story to that asserted by Howard government ministers, advisers and officials.