Although David Hicks has been sitting in wire cages in the US Navy camp in Guantánamo Bay, Cuba, for nearly two years now - arrested by the US for suspected involvement with al-Qaeda - his pro bono lawyer, Stephen Kenny, has never communicated with him. They are not allowed to talk together. They are not allowed to write. The authorities have nothing personal against Stephen or his legal skills. 'I don't think the guards are even allowed to talk with him. The Red Cross will only take in family letters that are limited to issues about personal welfare. Typically, his family gets one short letter every two months, which is usually about three months old.'
While Australian citizen David Hicks is incommunicado, so too are the reasons for his detention. Even now, when the US government has laid charges against him. Even now, when - if convicted - he could be sentenced to death. 'The first thing I did,' says Stephen Kenny, 'was write to politicians asking whether Hicks was in Guantánamo Bay, on what basis he was being held, and whether officials had had contact with him. I wrote to US President George Bush. He didn't reply. I wrote to US Attorney General John Ashcroft. He didn't reply. I wrote to the Australian Government: the Prime Minister, the Minister for Foreign Affairs, and the Attorney General. The Secretary of the Australian Attorney General's Department replied, confirming that Hicks was in Guantánamo Bay and that he was having "three culturally appropriate meals a day".'
'The US says that Hicks trained with a terrorist organization. I'm not doing this [legal work] because I think David had a right to train with al-Qaeda. This is not about morals. It's about the application of laws. And I'm staggered by the length of detention without trial.'
Stephen Kenny - working half a world away in Adelaide, Australia - is an active campaigner for human rights. 'I thought that a simple writ of habeas corpus would sort it out - that we'd find a firm in the US to do it pro bono. But initially I couldn't find anyone. The response was "Terribly busy" and "Don't have the capacity". These firms are businesses. It's better PR assisting an environmentalist or an indigenous Indian than representing people whom George Bush calls murderers.'
Then the New York-based Center for Constitutional Rights said that its lawyers would assist. Using David's case, they were the first to petition a US Federal District Court to decide whether the detentions were legal. David's application was considered with those made by other Guantánamo Bay detainees, including 12 Kuwaiti public servants being paid by their government to deliver humanitarian aid in Pakistan and Afghanistan when they were arrested. The Court decided that, as these cases were outside its authority, it couldn't pronounce on the legality of the detentions. 'US courts and government say that sovereignty rests with Cuba [from which the Guantánamo Bay base is leased]. The practical reality is that the US Government would disregard anything that Cuba says.' 'About a week before the writ hit the courts, the US State Department started releasing information against David. They said [amongst other things] that he had threatened to kill an American while he was in handcuffs. David strenuously denies this. Our US lawyers saw it as a deliberate attempt to smear David. You may say it's very small-scale - lying about one individual. But it's indicative of the culture of a government that is prepared to lie to flaunt the rule of law. You can no longer trust what they say. It has ramifications for US statements about weapons of mass destruction in Iraq.'
'The US has said that the [estimated 630 Guantánamo Bay] detainees are being held in humane conditions. Do you believe that? I think that you would find if you put a dog in a cage under bright lights for 24 hours and allowed it only two 15-minute exercises per week, you'd be at risk of being prosecuted by the Royal Society for the Prevention of Cruelty to Animals. The conditions are quite clearly inhumane - even on "three culturally appropriate meals per day".'
At the beginning of July, the US government announced that David and five others will be charged and tried before a military tribunal rather than a court, an avenue Stephen Kenny believes may result in a miscarriage of justice - and the execution of detainees. 'They are not bound by normal rules of evidence and criminal law. You don't have to prove a charge beyond a reasonable doubt - its verdict is based on a majority vote.
When David faces this military tribunal, lawyers like Stephen who are practising law outside the US have been banned from representing him. Instead, a military defence attorney will be appointed for him: one answerable to Colonel Will Gunn - a staffer at the White House under President Bush Senior. And if David doesn't like that, he can pay to be represented by a US civilian lawyer - one vetted by the Department of Defence. Newspapers now report that David may be offered a 'deal': plead guilty and get twenty years in jail, or opt for a trial and a possible death penalty. 'He's incarcerated at their mercy. I believe that releasing David now would embarrass the Australian and US governments. The US strategy seems to be that they will hold detainees like David in custody until the world forgets about them.'
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