31/1/05 SMH. I was going to link but you would have to register with smh.
Nation's guardian of liberty turns his back
The Attorney-General is determinedly ignoring his duty to the law, write Ian Barker and Robert Toner.
As the Commonwealth Attorney-General is the first law officer of the Commonwealth, one of his traditional duties is to resist abuse of liberties bestowed by law.
It is difficult indeed to see a single decision made by the Attorney-General, Philip Ruddock, that would suggest he has much interest in resisting abuses of liberty either here or overseas. In the creation of Australian statutes he constantly attempts to confer the maximum investigative and coercive powers upon anonymous agents of secret government organisations, and to put those powers beyond reach of any judicial interference. In the process of this repressive legislation, the Government takes from every member of the community a right, corresponding to each power bestowed.
Along with the rest of the Government, Ruddock has long displayed indifference to the treatment of the two Australian prisoners who were in American hands. He has long maintained that he had no concern about the incarceration of Mamdouh Habib, now released, and David Hicks by a foreign power, unprotected by judicial scrutiny, in defiance of the Geneva Conventions, and beyond the reach of habeas corpus. He has no complaint about Hicks's proposed trial by military commission and sees no potential for unfairness in the procedure. He sees nothing wrong with rule by presidential decree, in defiance of the US Congress and its statutes.
We do not know what Ruddock's view is of the US judicial decisions that have turned all this on its head. Presumably he was disappointed at the emergence of some appearance of the rule of law.
Habib was arrested in Pakistan, not in the Afghanistan war zone. The Americans can offer no proof he was any sort of enemy combatant. He could have been sent straight to Guantanamo Bay, but was sent firstly to Egypt, for interrogation by Egyptian methods. It is reasonable to infer that our Government knew of this when it happened, but it has made no complaint then or since.
Whenever allegations are publicly made about abuses by the US military of those held at Guantanamo Bay, in particular of Hicks and Habib, Ruddock's response is to say that he accepts the American assurance that all is well and allegations of torture are suspect. Since September 11, 2001 the governments of Australia and the US have collaborated very closely in the so-called war against terrorism, part of which resulted in the imprisonment without trial of Hicks and Habib. On November 13, 2001 the US President, George Bush, made a military order for the "detention, treatment and trial of certain non-citizens in the war against terrorism". The order was followed by the secret publication on March 6, 2003 of the report of a Pentagon working group of lawyers called "Working Group Report on Detainee Interrogations in the Global War on Terrorism". The principal author of the document is about to become the US Attorney-General. The document purports to be a justification of interrogation by torture by the authority of presidential decree. It is legal nonsense, and deeply offensive nonsense at that, apparently now disowned even by the President.
But given the status of Habib and Hicks, it is not unreasonable to assume the Australian Government knew of this document when it was created. If it did not know of it then, it knows of it now, but we have yet to hear a word of concern from the Attorney-General that Australian citizens might have been interrogated by torture, perhaps pursuant to the legal justifications offered to the president in the working paper.
In 2004, American methods of interrogation became public when the awful Abu Ghraib photographs were published. But, we were told, no one in senior office knew about such goings-on, neither here nor the US. But Australia did know about it. In spite of Senator Robert Hill's obfuscation, a Senate inquiry got half way to the truth, after publication of a letter of December 24, 2003, drafted by the Australian military lawyer Major George O'Kane, to the International Red Cross.
We now know that the Red Cross expressed deep concern to coalition forces about the treatment of prisoners, after a visit to Abu Ghraib in October 2003. It seems that O'Kane drafted the response from the coalition. The letter blandly brushed off the Red Cross's concerns. It asserted that every effort was made to uphold the Geneva Conventions, but talked about different rules for "high value detainees". The letter was nonsense, but must have been known to the Australian Government. It is little wonder the Government kept O'Kane away from the Senate inquiry.
The release of Habib seems to have thrown the Australian Government into a tailspin; being released without charge should be a matter of the greatest embarrassment to Ruddock, yet we cannot detect even a blush. The Attorney-General has said several times that, on his return, Habib was to be singled out for special treatment. He will not have a passport, he will be kept under surveillance, and his freedom to speak to the press may be inhibited. Is this Australia? Usually one would expect the Attorney-General to give some recognition to the presumption of innocence. In the meantime, Ruddock continues to support a military commission trial for Hicks.
Nothing suggests that our Attorney-General has the slightest problem with events at Guantanamo Bay or Abu Ghraib. It all sits uneasily with traditional concepts of his high office.
Ian Barker, QC and Robert Toner, SC are Sydney barristers.
