If the Price is Right?

By Legal Eagle

Like many lawyers, I find the behaviour of the US government and the Australian government in relation to Guantanamo Bay detainees to be inconsistent with the operation of the rule of law, the doctrine of habeas corpus and the notion that one cannot be charged retrospectively with crimes. As I have explained in previous posts, I think that no matter what someone has done, they deserve to be treated fairly, with due process. As Emma Toms pointed out in a piece in The Australian earlier this week, justice must be “one size fits all”:

But giving Arrestee A access to a turbo drive and road service while insisting that Arrestee B battle along with dodgy brakes and a smoking head gasket raises some serious issues. The first is that – like aeroplane oxygen masks, hospital gowns and disposable bikini waxing briefs – the guiding principle of a good legal system is that one size fits all.Chopping and changing depending on the case is problematic because it requires making extrajudicial assumptions in advance of a court hearing (that is, David Hicks is obviously a terrorist, therefore he deserves only terrorist justice). It also grants enormous power to those who are allowed to make such decisions.

I couldn’t agree more. However, as I have said previously, I detect a certain amount of “bandwagoneering” on the topic of David Hicks. All this attention and effort in relation to one person! I do hope that the man doesn’t end up profiting hugely from the whole affair. He strikes me as a stupid and unpleasant person. In a letter to a former flatmate, Louise Fletcher, Hicks responded to her suggestion that she write a book about him as follows:

Don’t try to write about my adventures because you don’t know that information.

Nobody does, so it would be inaccurate. I would prefer if you wrote nothing about anybody, for that matter. S***, I would have no chance to make any money when I got home, otherwise.

A few of the excerpts from the letter give an unattractive picture of the man. Well, the Taliban were an unattractive mob – perhaps like attracts like? Certainly, his former father-in-law doesn’t seem think much of him, saying that he would not allow Hicks to see his children.

Terry Hicks has said in a recent report that David doesn’t intend to sell his story. However, the same article reports a PR expert saying Hicks could get over $1million if he “sells his story”. I can understand that he would be tempted by a million smackaroonies, but I can think of far more deserving recipients than Hicks. The whole thing just makes me feel ill. Ironically, the Federal government has contributed to the high value of Hicks’ story. It just proves that one can never know the consequences of actions! If the government had demanded him home in the first place, (a) it would have been the right thing to do from a principled point of view; and, (b) from a pragmatic point of view, he would never have reached a status where he could demand million dollar sums for his story.

I certainly won’t be buying Hicks’ book or watching his story. In saying this, I do not deny being incarcerated for years in a tiny cell, including being put in solitary confinement is a very unpleasant experience for any human being. It should not happen without due process being followed. But what about the many other Australians who live under terrible circumstances? For example, what about the problems in indigenous communities, including the endemic abuse of women and children? Noel Pearson describes a heart-breaking visit to his home town vividly here. Where are the lawyers, the high profile QCs and the law lecturers rallying to defend indigenous women and children who have been abused by their partners and families? It seems to me that the issue of indigenous problems just keeps getting pushed under the surface, bobbing up every few months. It’s just not a “sexy issue” – too morally complex, and mixed up with issues of cultural relativism – it’s easier just to put it into the “too hard” basket. So, let’s not get so worked up about Hicks that we forget other societal injustices. Although issues such as indigenous issues will not be easily solved, they shouldn’t be forgotten.


As part of his plea bargain, Hicks has agreed not to profit from the sale of his story – any profits are to go to the Australian government. I’m glad.

(Via Tim Blair)


  1. Law Student
    Posted March 31, 2007 at 9:46 am | Permalink

    I totally agree with your post.

    Lots of people take a very romantic and unrealistic view on many issues. Many concepts like the rule of law and habeas corpus as you have pointed out, are merely principles.

    What happened with Hicks and all that crap, do you seriously think our leaders were giving a shit about these principles whilst the hippy left were demanding fair treatment.

    I suppose its all the big guns who call the shots.

    Recently the US revealed that some terrorist (Sheik Khalid i think, not sure though) admitted being the mastermind behind 911 and bali. After years of CIA interrogation, what was funny is that he didn’t confess to the murder of the Melbourne underworld figure Alfonso Gangitano.

    We may have faith in the theory, but what goes on in reality is totally different.

    About that letter – the tossbag that tim blair is, he might as well have pulled that out of his rear end.

  2. Legal Eagle
    Posted March 31, 2007 at 10:04 am | Permalink

    Because of the methods used by the Americans in Guantanamo, no one is going to take any of the confessions seriously. If you subject people to treatment which is effectively torture, they will confess to anything.

    I don’t think our government does give a hoot about principle. It makes me cross that they trumpet our “democratic values” and giving people a “fair go” and then put principles into practice selectively (as it suits them).

  3. Aimee
    Posted April 2, 2007 at 10:20 am | Permalink

    I totally agree with your post and with what Emma Tom had to say. You can’t change the processes of justice to suit your own political ends and this entire saga has been a farce of politics being favoured over the rule of law.

    9 months is a joke either way you look at it. If he is a dangerous terrorist and they can prove all those charges then he should have received a realistic sentence (or even a sentence of 6-8 years, which he’d only have to serve 1-3 of, taking into account time already served … as is standard practice – but would be a dangerous precedent for the americans given how slowly their ‘wheels of justice’ grind – there’s a lot more still to prosecute in Guantanamo)

    On the other hand, then if he is not a dangerous terrorist and they can’t prove all those charges, then why sentence him at all let alone keep him in solitary confinement for 5 years?

    The whole plea-bargain stinks and suggests that all the Australian government wants out of this case is to minimise the bad spin (in time for the election… can anyone else say Tampa?) and doesn’t care about prosecuting terrorists or upholding due process and the rights of the incarcerated – surely one of the most vulnerable groups in our society. But then I guess we already knew that remembering the systematic detention of refugees…

  4. Legal Eagle
    Posted April 2, 2007 at 10:23 am | Permalink

    You have hit the nail on the head, Aimee. If he is such a dangerous terrorist – why only give him 9 months? The whole thing really stinks.

    Do they really think the electorate is that apathetic? Um, don’t answer that question.

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