The Supreme Court’s judgement seems likely to expose the deep flaws in Australia’s position, writes Jack Waterford
TODAY, tomorrow, or sometime in the next week, the American Supreme Court will hand down its judgement on the fundamental legalities of the American gulag at Guantanamo Bay.
If the signals coming from George W.Bush and his administration and from earlier, lower court, decisions are any guide, the court seems likely to remove the final props to the legitimacy of American claims that it has proceeded regularly in dealing with those whom it has decided to be its enemies.
Most likely, the first practical effect of the judgements will be the requirement that the final disposition of all charges against the remaining Guantanamo prisoners, including Australia’s David Hicks, be subject to ordinary American due process, within the American judicial system.
There are at least four consequences of this. All were predictable - and predicted by critics - from the start.
A “due process” hearing will be subject to ordinary rules of evidence. This will necessarily involve scrutiny of the legality, probity, voluntariness and cogency of all material in the hands of American prosecutors. The American Bill of Rights has far stronger prescriptions against illegally gathered evidence than does the British or Australian common law system, and evidence obtained by coercion, torture, or even the cutely named “torture-lite” is likely to be excluded by the American courts. So is any evidence obtained by “rendition” processes - the American system of transporting prisoners for torture by nations not so squeamish about “coercive” interrogation. Without such evidence, most prosecutions will collapse.
Other types of evidence, including intelligence evidence, will be subject to cross-examination, and prosecutors will not be able to put forward witnesses not available for such examination. Whether or not the court permits some evidence to be taken in secret, those involved in making the final decisions about the facts will have an opportunity to closely scrutinise the basis, and the logic, of Administration claims about those involved. Quite apart from the importance of the presumption of innocence, such people will be provided with ample grounds for scepticism about some of the deductions, made after all by the people who deduced the existence of weapons of mass destruction, who rationalised torture-lite as permissible under local and international law, and who gave us the open lawlessness, and contempt for justice, shown at Abu Ghraib and Guantanamo itself.
A judicial, as opposed to tribunal, process, will also necessarily raise the question of whether a consistent and fundamental Administration claim - either that the Geneva Conventions do not apply to the Guantanamo inmates, or that somehow international law recognises the vague and shifting category of enemy combatant separate to and with different (and lesser) rights than an ordinary prisoner of war - exists. International agencies - particularly the Red Cross, responsible for administering the conventions - deny the existence of such a category, and so does Britain and most of Europe.
Finally, the US Supreme Court will have to rule, implicitly at least, on new pretensions of executive prerogative being made by the Bush Administration, extending well beyond a claim of generous “war powers” and “freedom of action” to fight a congress-authorised war against terrorism to a right to conclusively determine the law, or to decide which parts of it will be enforced or not. In the middle of all of this are pretensions that the president, by executive act, or after tendentious advice from his justice department, can authorise breaches of local and international law. A chief functionary in this new and unaccountable system of local and international lawlessness has been the nominee as US ambassador to Australia.
Australia, and the Howard government, has a keen interest in this affair, and not only because of David Hicks. Virtually alone of western nations, Australia has at all times supported the legality of the Guantanamo regime, and of efforts to screen it from any accountability to the American system of law. Intermittently, under strident criticism from the Australian legal establishment, our attorney-general, Philip Ruddock, has sought and obtained minor concessions about procedures so as to make any hearing “more fair”. But he has never manifested any alarm about fundamental flaws in the system. Even less has he shown any concern for the human rights of those affected.
Our support for the American position has gone well beyond mere rhetorical support for the difficult position the United States, and its allies, including Australia, has in dealing with a new and ruthless enemy, itself seemingly obvious of any concept of law or decency. Our diplomats have played to script, and our diplomatic support has been used by the US to support its position.
We have not only “understood” or “sympathised” with the US position; we have supported and rationalised it. If it ends up being repudiated by the US Supreme Court, itself noted for its sympathy to the US Administration, how much the more foolish do we look?
No one suggests a moral equivalence between the wickedness of the US and the terror movement against which it is engaged. The argument is about something else: whether the war against terror, and for our version of civilisation, is advanced by abandoning the rule of law and international norms of behaviour, and engaging in conduct we have condemned in other countries. Whether, indeed, any battle won by short-term ruthlessness helps us win the war.
It has long been noted that the American embrace of a non-accountable and lawless system has seriously undermined its position in the world, and deprived it of a good deal of the sympathy and support it received after September 11, 2001. But the moral opprobrium can travel too, if differentially.
Britain, for example, has made no secret of its opposition to the Guantanamo regime and everything it represents, even if it has been quite unwilling to adopt the case of David Hicks. No one has suggested, on that account, that Britain is less than a full ally in the coalition against terror. Australia, by loyally supporting America, perhaps as a function of the “special relationship” between our prime minister and their president, is in a different position. Howard’s support may have helped the relationship; it has not advanced our national interest.
Our supine support for the US has not only hurt our moral position in the war against terror. It has undermined our standing in the region, and in international forums, in arguing for international human rights norms. Implicitly now, we can be judged not by what we ourselves do, but by the standards which we tolerate from our great and powerful friend.
If it is okay, as it seems to be with John Howard, Alexander Downer and Philip Ruddock, for the US to administer “coercive questioning” to terror suspects, why is it not okay for Indonesian authorities to do it to Papuans it suspects of belonging to separatist movements? Or, for that matter, Australians charged with drug offences?
If rendition programs are okay, how are we going to protest if, say, China, kidnaps some discontent Chinese citizen in Malaysia and returns her to China for a show trial? Or if the student is kidnapped from here?
If indefinite detention is okay for anyone said to be an “enemy combatant” what will we do if some Solomonese warlord decides that Australian policemen fit that description? Or some Sunni insurgents that some Australian security guard fits it.
If we provide consular services only to “good” baddies, such as drug dealers, but withhold them from bad baddies, such as political suspects, what will happen when a Mugabe decides that some Australian tourist (or diplomat) is conspiring against his regime?
Once upon a time Philip Ruddock might have been able to postulate answers by pointing to the Amnesty badge he still defiantly wears on his lapel. That, after all, is the symbol of the demand for an international rule of law.
These days, alas, Philip Ruddock stands, alongside George Bush, as the enemy of every principle, in relation to the rule of law, that Amnesty stands for. What a pity, and how unnecessary, that Australia has to bear the same reputation. •
Jack waterford is editor-at-large of the Canberra Times, in which this article first appeared.
Photo: Andrew Jeffrey