An objective voice in Hicks debate
George Williams Detainee 002 By Leigh Sales Melbourne University Publishing, 336pp, $ 32.95
DETAINEE 002 is, of course, David Hicks, a figure known to many Australians only from a few well- worn photos. Leigh Sales has done her best to rectify this with the help of interviews with family and friends and those who knew Hicks in Afghanistan and Guantanamo Bay. What is often missing is Hicks’s own voice, something that appears only in transcripts of interview and a few, often censored, letters.
This is inescapable in writing about someone held incommunicado for more than five years and the subject of a gag order. In fact, that there are holes in the story is a strength of this book. Rather than hypothesising or filling in the gaps to fit a political agenda, Sales has written an even- handed narrative based on the known facts. This gives her work an integrity and credibility often lacking elsewhere. In any event, the real story is not about detainee 002 but the system created to hold and try him.
Sales has written an accessible, compelling tale of how the detention and prosecution of someone involved with terrorism became a legal and public relations disaster.
Sales does not load this with too many of her own conclusions. In the main, she lets the facts speak for themselves. This draws the reader into the story free of the stark ideological differences that have so polarised the Hicks debate.
Where she does draw conclusions, in a final chapter carefully titled With Hindsight, she finds that Guantanamo Bay has been a conspicuous failure in the war on terror. Sales concludes that it has eroded the moral standing of the US and its allies and, as a symbol, has served as a useful tool for terrorist recruitment.
This is not based on a sympathetic view of Hicks. Sales finds that ‘‘ David Hicks is guilty of association with al- Qa’ida. The facts are indisputable.’’ Given this, it says a lot that after five years the process used to try him led to a profoundly ambiguous outcome.
On the one hand, Hicks’s guilty plea may be seen as irrefutable evidence of his guilt and for
some even justification of his treatment. On the other hand, it has been argued that he pleaded guilty simply to escape Guantanamo Bay and return home.
This demonstrates what was forgotten in the aftermath of September 11: that is, a fair trial is important not just for the accused but also to ensure public acceptance of, and confidence in, the process.
Having followed the Hicks story closely from his January 2002 detention in Guantanamo Bay, I wondered what else there could be to learn from this book. There was much more than I had expected, with Sales not only covering all the twists and turns ( many of them forgotten), but also exposing important new information.
For example, while the Australian Government locked itself in early in support of Guantanamo Bay and the military commissions, it was not known how hard it pushed for several years for Hicks to be tried.
This undermines the perception that the Government was prepared to allow Hicks to languish untried at Guantanamo Bay. Certainly, it had repeatedly asked for a trial long before public concern at Hicks’s detention reached a crescendo in late 2006.
I had also not realised how deep concern went within the US armed forces and Bush administration. Within those circles, support for the rule of law, the Geneva Conventions and the right to a fair trial was often as strongly expressed as it was outside of government by human rights organisations. This is not to say that there was doubt in the mind of the President. However, the voices of dissent did include top uniformed and civilian lawyers from the Pentagon, such as the judge advocate general of the Marine Corps, James Walker, and US Navy general- counsel Alberto Mora, Republicans such as senator John McCain, former secretary of state Colin Powell, incumbent Secretary of Defence Robert Gates and even members of the prosecution.
This dissent was particularly strong in res- ponse to the use of coercive interrogation techniques at Guantanamo Bay, including those that many would regard as torture.
The FBI even considered some of the techniques so beyond its guidelines that it ordered its agents to withdraw from interrogations at Guantanamo Bay authorised by then defence secretary Donald Rumsfeld.
The author’s sources are impressive, her treatment of the legal issues impeccable and her first- hand knowledge from covering the Hicks case and visiting Guantanamo Bay invaluable. There will be more books about Hicks, most of which will readily cast him as a villain or victim. Very few will be as good as this one. Importantly, this is a book that in the midst of an overheated debate will give people the facts they need to make up their own mind. George Williams is the Anthony Mason professor and director of the Gilbert and Tobin Centre of Public Law at the University of NSW.
Talking point: David Hicks in Guantanamo Bay