So Many Lawyers, So Little Responsibility

Sydney Morning Herald

Saturday July 1, 2006

Adele Horin

YOU would expect lawyers, of all people, to be outraged at the treatment of David Hicks and the prisoners in Guantanamo Bay. And in general, they are. But not the lawyers in John Howard's cabinet. Of the 17 cabinet ministers, 11 are lawyers, including the Prime Minister. And if you include the outer ministry, then 14 of the 30 most senior people in government are lawyers.

The Government is top-heavy with them. But these lawyers have been a disgrace to their profession. They have betrayed the most fundamental responsibility of any government - the duty to protect the rule of law. When it came to Hicks, the rule of law was disposable.

The lawyer-MPs maintained a shameful silence, or actively supported the fiction that Hicks, and before him Mamdouh Habib, have been treated justly. They have meekly concurred in the fiction that the military commissions concocted to try the 10 prisoners so far charged (of the 700 originally imprisoned) were hunky dory.

For its own political purposes, the Howard Government abandoned Hicks to a legal black hole. It colluded in "an international experiment in inhumanity", as one British lawyer has described Guantanamo Bay.

It should not have taken a ruling of the conservative US Supreme Court on the illegality of the military commissions to show our leaders the fallacy of swallowing the Bush Administration's line. Eminent lawyers and jurists and lawyer-MPs from around the world have expressed outrage ever since Guantanamo Bay was established and the military commissions were set up outside the boundaries of traditional civil, military or international law.

In Britain a former Tory cabinet minister, and QC, Douglas Hogg, was early to condemn the military commissions as "wrong, potentially unjust, and gravely damaging to America's reputation". And the Blair Labour Government, a loyal ally to Bush, could not stomach Guantanamo Bay and the military commissions, managing to extricate its nine citizens and bring them home.

An extraordinary line-up of experts has become involved as "friends of the court" in actions before the US Supreme Court to bring justice for those in Guantanamo Bay. These have included the Commonwealth Lawyers Association, and the Human Rights Institute of the International Bar Association, several former US Federal Court judges, 20 former US diplomats, and the US National Institute of Military Justice.

Just about everyone, it seems, except the lawyers advising John Howard and George Bush, had grave doubts about the legality of Guantanamo Bay and the military commissions.

To the frightened public, Hicks may be dangerous - one of the Guantanamo Bay "killers" Bush blithely refers to without even a nod in the direction of "alleged". But the lawyers know what is at stake: the very principle for which the so-called "war on terror" is being waged.

A fair trial is a foundation stone of a civil society. Whatever people are alleged to have done, whatever despised minority they belong to, a democratic society assures them their day in court. It assures them basic rights - to know the case against them and to cross-examine witnesses. It gives them the right to appeal to a higher court.

These are time-honoured and transparent procedures - but the US threw away the rule book when it scooped hundreds of people up in Afghanistan, Pakistan and elsewhere, concocted the name "enemy combatants", denied them prisoner of war status and attendant rights under the Geneva Conventions, and in January 2002 dumped them in Guantanamo Bay.

Later it discovered it had imprisoned a 90-year-old shepherd, children, cobblers and foot soldiers of the Taliban who had been conscripted against their will, and two or more years later began the process of releasing 200 prisoners.

Michael Ratner, co-author of Guantanamo: What the World Should Know, writes: "It is certainly conceivable that the majority, perhaps a substantial majority of the people in Guantanamo, had nothing to do with any kind of terrorism."

The military commissions, as first established, involved military officers serving as judge, jury and prosecution. They bore no resemblance to the usual military courts. Civilian defence lawyers needed to be approved by the US Defence Department, and the conversations between prisoner and lawyer could be wire-tapped, abrogating the fundamental right of client confidentiality.

Defendants did not have the right to know all the evidence used against them. They could be found guilty based on confessions extracted through torture. And there was no right of appeal to the US Supreme Court.

Such outrage greeted these abuses of procedural fairness that modifications were eventually announced. They amounted to window dressing, as the US Supreme Courthas found.

In making Guantanamo Bay a rights-free zone, George Bush took us back to the era when kings could throw a person in jail with no charges laid, no lawyer and no prospect of release. The US Supreme Court has found he overstepped his authority.

That our government of lawyers went along for the ride is perhaps no surprise. Hicks has spent a mere 41/2 years in appalling conditions awaiting a fair trial. The Howard Government locked Peter Qasim in an immigration detention centre for seven years without charge or prospect of trial - before finally freeing him.

Because the US flouted the rule of law, and snubbedthe Geneva Conventions, Hicks's entombment will be dragged out further. Should he really pay with moreyears of his life while the US concocts another means to put him on trial? It is time our government of lawyers -and our mealy-mouthed Opposition - insisted that David Hicks come home.

© 2006 Sydney Morning Herald

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