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.

The contents remain classified, and therefore full details cannot be disclosed at present. However, what can be said is that the report only raises more questions, and certainly does not clear any US official of any wrongdoing, contrary to the claims of the Howard and now Gillard governments.

In an affidavit, David Hicks details the beatings that took place on transit to Guantanamo, the worst of which took place in Pasni, Pakistan. He details being spat on, and kicked and hit with rifle buts. After the beatings in Pasni, Hicks was transported to the USS Pelilieu where he was interviewed by Australian officials, including the AFP and ASIO. Hicks says he then first detailed his treatment at the hands of the US and its agents. The contents of this interview have also never been made public - the transcript was not entered into evidence in the recent proceeds of crime case against Hicks that was dropped by the Commonwealth Department of Public Prosecutions due to lack of evidence that a crime was committed.

Hicks also detailed his ill-treatment and torture to Australian officials on many other occasions over the years of his detention in Guantánamo. One such occasion was during the NCIS investigation interview which was ordered in response to the photos of Abu Ghraib being released. Dan Mori, Hicks' former lawyer, has stated that "an Australian official was present, and Mr Hicks went through the issues of him being assaulted as part of the US investigation, and there was an Australian official present during the entire interview."

In 2005 Hicks met with and provided a letter to Australian consular official John McAnulty, outlining his treatment in Guantanamo. Hicks described being chained to the floor for so long that he had to urinate on himself, and the use of "noise machines" - either bladeless chainsaw engines revving constantly or loud music or sounds being sent through the camps.

After reporting these issues to McAnulty, Hicks was moved to a camp designated for reprimanding detainees; Hicks and his lawyers saw this as a punishment for raising concerns over his treatment to Australian officials. Hicks' letter also has never been released publicly.

Heavily redacted documents from Department of Foreign Affairs and Trade, obtained through a Freedom Of Information request, include a Record of Conversation between Hicks' lawyer and Downer on 19 February 2007. Others present included Downer's then Chief of Staff Chris Kenny, and adviser Angela Macdonald. Downer is recorded as saying:

…he had varying degrees of worry for people held overseas….the case had progressed beyond the point where the Australian government could simply ask for Mr Hicks' return; but a plea bargain option might perhaps get him back into Australia more quickly than proceeding with a full hearing….that while lawyers might take the view that the implications of a plea bargain would be to give credence to the military commission process…surely the best thing for Mr Hicks would be to get out of Guantanamo Bay…the government's position remained that he should face charges. If a trial could be expedited or Mr Hicks accepted a plea bargain - that would be a win/win…

Howard certainly did not allude to this "win/win" proposition when quizzed on a television program in 2012, and obviously any win/win scenario was unconcerned with natural justice or due process for Hicks. Following the recent Hamdan decision that confirmed that the charge "material support for terrorism" was not a valid war crime, Hicks has publicly stated that all he wants is for an investigation into his case.

The Australian government has a responsibility under international law to independently investigate allegations of torture made by Australian citizens being held abroad, particularly if it is in their power to have them returned to Australia. It apparently does not do so. The WikiLeaks cable makes it clear that protecting US interests is more important in Hicks' case than protecting an Australian citizen.

We must hold to account those responsible for colluding in arbitrary, unlawful, indefinite detention. We must hold to account those who are complicit in crimes against humanity even if that extends to prime ministers, ministers or ministerial advisers. We can no longer accept that those who are accused of torture should be able to investigate themselves, nor can we accept inadequate internal reviews.

We must object to our government relying on diplomatic assurances about torture or degrading treatment if it permits the transfer of Australian citizens to foreign countries, and we must press our government to block the feeding of questions and information between intelligence services around the world where the major interrogation technique is torture.

And for the future, we must insist that protocols are put in place to ensure that all information concerning instances of actual and alleged personal abuse or torture is made public.