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Sorry episode needs right apology

By Greg Barns - posted Tuesday, 8 January 2008

Dear David,

Despite what South Australian Premier Mike Rann and some newspapers might think, you do not owe the Australian people an apology.

In fact, it is your country which ought to be compensating you for subjecting you to five years of inhumane and illegal treatment at the hands of the US and Australian governments.


As you face calls for some form of apology, perhaps you might find it useful to remind those making that call of the following facts about your case.

First, to describe you, as has become commonplace in the media, of "pleading guilty to supporting terrorism" is grossly misleading. The circumstances of your plea of guilty last year should leave no one in any doubt it is unreliable and based on evidence that has never been tested in any court.

As your own former lawyer Stephen Kenny correctly observed last week: "It's very clear, considering David is the one and only prisoner that has been processed in Guantanamo Bay, he was made essentially an offer that he couldn't refuse to get him out of there."

As Kenny said: "If I spent 5½ years in Guantanamo Bay in the conditions that he was in - with a great deal of uncertainty about the outcome and an expectation that you would face an entirely unsatisfactory tribunal - and you were offered six months in an Australian prison before you were released, I have no doubt I would have taken that offer as well."

In other words, David, many insightful Australians understand you pleaded guilty only to get the hell out of the gulag of Guantanamo.

Second, there is doubt you would have been convicted of providing material support to terrorism if you had been tried in accordance with correct procedures in the US or Australia. What's the evidence against you?


According to the US military and security sources, you trained with al-Qaida and met Osama bin Laden a number of times. You have never had the chance to test those allegations and, worse than that, according to the affidavit you swore you were regularly tortured by your investigators and captors. If that is the case, then any evidence helpful to the prosecution adduced as a result of any such torture or oppression could not be used against you in a real court of law.

Further, as the former military chaplain at Guantanamo Bay, James Yee, said last December 31, when asked by the ABC if he got the impression you were a true believer in al-Qaida's ideology, he "saw no indication that he was even extreme in his general beliefs. His beliefs mirrored mine with regard to believing in one God, praying five times a day, fasting during the month of Ramadan. As an American soldier wearing the US Army uniform, as a US military officer who met with him on a daily basis, you know, we had a personal relationship. He treated me with respect, I treated him with respect."

Others, including US law enforcement officials, have described you as a "lost soul", rather than as a terrorist in training.

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First published in the Hobart Mercury on January 7, 2008.

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About the Author

Greg Barns is National President of the Australian Lawyers Alliance.

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