Even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law … He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.[i]

– Aristotle, Politics, III

Guantanamo Bay is a military facility of the United States and the razor-wire home of David Hicks and Mamdouh Habib, two Australian citizens. It is on the island of Cuba in the western hemisphere, an area that, as declared by presidents James Munroe and Theodore Roosevelt, is the exclusive policy domain of the US. This part of the world has a long history of piracy and lawlessness. It is where men and women are made undead – alive, yet not fully human – by forces that are neither explained nor brought to account; it is a world in which the US has consistently played the deadly game of kingmaker and regicide; and, even after foolish tales of the Bermuda Triangle are set aside, it is a place where people go missing.

Only madness or genius could contrive in fiction a better location for the operation of a veiled regime of detention or a more powerful metaphor for the unprecedented abandonment of the rule of law by the US Administration.[ii]

For Australia, a nation deeply embedded in the war waged by the US against Islamic terrorists, the treatment of Hicks and Habib has obtained an elevated importance. Their confinement highlights a fundamental question that the democracies have yet to answer coherently well; at a time of chronic and bitter conflict, which is waged the world over, how are the physical security of citizens and individual freedoms and liberties protected? Certainly, the issue is not an easy one to resolve.

The demand that individual rights not be trampled necessarily constrains the freedom of the state to hunt and catch and kill those it perceives as its enemies. Such constraints increase the risk of attacks on a law-abiding community. We know that about 150 detainees have been released from Guantanamo, from countries like Morocco, Sweden, France, Pakistan, Afghanistan, Britain, Russia, Spain and Denmark. It is possible that some will again pick up arms to fight against the US and allies like Australia. This is a tangible risk, which even yet does not justify making Hicks and Habib undead in Guantanamo.[iii]

During last year’s election, the Prime Minister argued that the first responsibility of a government was to protect the lives of citizens. That his statement rings with good old-fashioned common sense does not make up for lack of meaning. In acting to protect citizens, even the best of prime ministers is not given free rein to do as his or her passions dictate. One pragmatic reason for this is that a perfect authoritarianism – ruthless, arbitrary and unconstrained – can never guarantee perfect security. More important, however, is the imperative that governments act lawfully and that this constraint is not loosened by either barbaric attack or by a calculus that the means justify the ends.[iv] If we are to assess possible risks to national security then, simultaneously, we need to measure the threat posed by increased security to individual rights. In a democracy, one cannot be considered without the other: they are Siamese. Were we deluded enough to abandon traditional rights, accreted over long years, we would hand an own-goal victory to fundamentalists who conflate God with the beheading of innocents.

The reaction of the Australian Government to the seizure of Hicks and Habib gives no confidence that serious consideration has been given to these issues.[v] Statements by the Prime Minister and by ministers have been devoid of any mention of the principles, in rights and in law, that would justify detention. Instead of articulating clear reasons for when and under what circumstances the holding of Australian citizens by the US military is thought acceptable, the Government has reacted to developing circumstances, most notably to the actions and announcements of the US Administration itself.[vi] The concern here is not just that Hicks and Habib are to be tried by an unfair military commission, but that considerations of rights and process of law have not been properly championed and properly applied. In short, the Government’s response to the detention of its citizens has been reactive and expedient.

What people need to realise here is that while there are human rights accorded to those involved in war situations, they are not the same as people whose rights are challenged in a civilian context. They’re entirely different ..[vii]

– Daryl Williams, Attorney-General, 2002

THE ARGUMENT THAT CITIZENS NEED TO BE JEALOUS OF THEIR FREEDOMS, hold governments on a close rein, insist that the executive protects individual rights and adheres to the rule of law is not an argument that Hicks and Habib are good men who are innocent of wrongdoing. The public knows little of what makes either man so dangerous to the wellbeing of the US and Australia, or of the specific nature of the crimes they are supposed to have committed. Because the case of Hicks is in advance of Habib’s, his treatment illuminates more clearly the issues at stake here. For this reason, I use Hicks as shorthand to describe the circumstances of Habib’s detention as well.

We know some things. Hicks was seized in Afghanistan in 2001 by the Northern Alliance, interrogated by the Americans and transferred to Guantanamo Bay. His cell measures 2.3 by 4.6 by 3 metres.[viii] He was denied access to a lawyer until December 2003. The US Administration decided he would be tried by a military commission, which held preliminary hearings in August 2004, and which is to reconvene in 2005. Three charges have been laid: conspiracy to commit war crimes; attempted murder by an unprivileged belligerent; and aiding an enemy.[ix] At the time of writing, Hicks was boycotting a separate tribunal hearing, which was being held by the US to determine whether or not he is an “enemy combatant”.[x]

In letters to his family, Hicks revealed himself as being reckless, superficial and fickle, a naïf in politics and geo-politics.[xi] He tells of himself, as a tourist, shooting across the cease-fire line from Pakistani Kashmir into India; of the coming of an Islamic state comprised of Afghanistan, Pakistan and Kashmir. His praise of the fanatics and misogynists who make up the Taliban is simply incomprehensible.

Yet neither Hicks’s character nor his beliefs are on trial. Fanatical religious belief and misogyny are not offences punishable by law and, happily for many of us, foolishness is no crime. Hicks’s rights under US and international law are not diminished by his nature, however unappealing we might find that nature to be. In addition, his rights are not arbitrarily reduced by the belief of the US Administration that the struggle against terrorists changes or makes void rights under the law. We should refuse to be convinced that rights are evaporated clear away by the heat of executive desire – the “wild beast” of Aristotle. The notion of human rights only has meaning and force if such rights protect individuals in the most drastic of circumstances. It is at the precise moment that the stakes are high that the protection of the human rights of the individual becomes most important. It is at this moment that the claim of Ronald Dworkin that “rights are trumps” holds most true.[xii]

At issue here is Hicks’s behaviour – the deeds he has committed – how he is to account and how he is brought to account. Just as character traits cannot justify the violation of Hicks’s rights, then an assertion by the US Administration of wrongdoing on his part provides no justification for indefinite detention, cruel punishment or slow justice administered by way of kangaroo court. To judge from its inaction, the Australian Government found the idea that Hicks might be entitled to legal rights as a consequence of his intrinsic humanity[xiii] outlandish and bizarre. The notion that Hicks could be handled under existing provisions of international law – and treated as a prisoner of war – or subjected to criminal proceedings in the US[xiv] was also anathema. For Australian ministers, the whiff of grapeshot was enough to have them abandon rights, and Hicks, in the field.[xv] Perversely, at the exact moment when humans rights are needed the most, they have been valued the least.

THE AUSTRALIAN GOVERNMENT HAS INSISTED THAT HICKS WAS A DEADLY THREAT. His terrorist guilt was weighed and pronounced as being overwhelming by the Australian Prime Minister and his ministers, and by representatives of the US Government. For example, in 2002, when asked whether or not Hicks was receiving his proper civil rights, Prime Minister Howard said Hicks “knowingly joined the Taliban and al-Qaeda. I don’t have any sympathy for any Australian who’s done that”.[xvi] The foreign minister, Alexander Downer, thought that military commissions and detention were necessary because otherwise, Hicks, whom he alleged to be a trained al-Qaeda terrorist, would return to Australia and sit next to decent Australians in cinemas.[xvii] Such comments reflected the belief of the US Administration that those detained in Guantanamo Bay were dangerous terrorists[xviii] – “the worst of a very bad lot”[xix] – who were not entitled to protection under the Geneva Convention or US law.

The US permitted access to detainees only for the purpose of enforcing the law and collecting intelligence. The only regular contact Hicks had with the Australian Government was with Australian spies and police. According to the then attorney-general, Daryl Williams, the refusal to allow access to lawyers was “appropriate given that the men are in United States military custody and that the objects of the visits are for intelligences purposes and for law enforcement purposes”.[xx] Despite the “extraordinary”[xxi] nature of the conflict and of the circumstances of Hicks himself, the Australian Government contented itself with requesting the sort of access provided in normal consular cases. As a matter of obdurate US policy and Australian indifference, access was denied. For two years, Hicks was denied legal advice and the first consular visit was made in February 2004, 26 months after his capture. According to Foreign Minister Downer, the glacial progression of Hicks’s case was the result of unspecified Pentagon “priorities”[xxii] – that is, things moved slowly because the military bureaucracy of the US was effectively beyond control of government.

The world round, there exists no credible support for the actions of the US Administration at Guantanamo Bay. The preferred mechanism of justice – the military commission – has been savaged as being incapable of providing fair and impartial judgement. Most recently, Lex Lasry, an independent observer from the Law Council of Australia at USA v David Hicks, found that the existing arrangements and rules made a fair trial for Hicks “virtually impossible”.[xxiii] In this, Lasry is not alone; as far back as 2002, Justice Weinberg warned: “the detainees at Guantanamo Bay [were] subject to indefinite detention and, in all likelihood, to trial by military commission … However, the right to be free from executive detention  which is arbitrary and indefinite, is absolutely fundamental. A society which loses sight of that fact, even temporarily and in the face of great emergency, jeopardises values which are truly deep rooted, and non-derogable.”[xxiv]

Criticism also came from the United Kingdom, where the attorney-general and a Lord of Appeal, found, respectively, that a military commission would not guarantee a fair trial,[xxv] and therefore was unacceptable to Her Majesty’s Government, and that such trials “would be a stain on United States justice. The only thing that could be worse is simply to leave the prisoners in their black hole indefinitely”.[xxvi]

We would be made dupes, however, if we believed that the Australian Government was of similar mind, held similar objections and was thwarted in its efforts to have Hicks brought to fair trial. Legitimate contrast can be made of the statements and actions of the British and the actions of Australian ministers who found the thought of no penalty and no punishment impossible to stomach. Having damned Hicks on so many occasions, they sweated on a guilty verdict, and lacking evidence that would obtain a conviction under Australian law, they acquiesced to a US show trial, the procedures of which are fatally compromised.[xxvii]

Three reasons come to mind as to why the Howard Government would so casually sacrifice the rights of Australian citizens. All are based on expedience, whereby principles are upheld or abandoned according to circumstance. The first expedient reason is political advantage. Never far from the mind of ministers is the belief that standing tough against terrorists – any terrorists, anywhere – makes for good politics. A popular mood demanded and a populist government responded: “Sometimes critics of the US Administration and us, over these people, underestimate the strength of feeling and concern there is in our communities about the evil of al-Qaeda.”[xxviii] That is, principles of law and notions of rights were to be sacrificed to the oceanic emotions of ignorance and loathing, and revenge could be made legitimate by strength of popular feeling. That such seas rage we should have no doubt – cyberspace is crowded with the noise of a community ready for retribution. For example, one blogger claimed  “no one cares if David Hicks runs afoul of a US Marine bayonet before his trial. On the contrary, I’m keen to save my allies the time and expense … To hell with David. Promptly.”[xxix]

This is the community of which Downer spoke and to which the Government has pandered – a community ready with brands in the night, possessing nooses for casting over branches.

The second reason is that Hicks’s treatment sends a clear message of deterrence to the would-be adventurers and gangsters, those under deep cover in suburbs, sweeping plains and ragged mountains. The tough handling of Hicks broadcasts the fact that, these days, loyalty to the nation is at a premium. Those who seek war and death will be caught and will suffer harsh punishment, at the very least in this life.

The third reason is founded on strategic considerations. Australian foreign policy has been fastened to the idea that the views and policies of US and Australian governments can never be separated, even by a sliver of difference. This reflects the views of the Prime Minister – and his personal experience. By virtue of his presence in Washington on September 11, 2001, Howard had become a front-line soldier in the war against terror and at that time determined that the US would lack for no Australian support.[xxx]– loosely defined – principle would be jettisoned. No glove puppet ever fitted a fist so well. Thus, if strategic imperative came into conflict with policy or legal principles, then within the bounds of the law

… the real question is, who accuses me? What authority is conducting these proceedings? Are you officers of the Law?… I demand a clear answer to these questions, and I feel sure that after an explanation we shall be able to part from each other on the best of terms.[xxxi]

– Franz Kafka, The Trial

FROM THE MOMENT HICKS WAS SEIZED, THE AUSTRALIAN GOVERNMENT received some sort of advice from government servants and lawyers. Given statements made by the ministers, it is possible to conceive that the substance of this advice excuses and perpetuates unjust treatment. For example, the Secretary to the Attorney-General’s Department, Robert Cornall, seemed to be unique in the whole world in saying that Hicks’s rights would be protected by a military commission. Asked during Senate Estimate hearings if the rules of the military commission would appropriately protect and observe basic human rights, Cornall assured senators that he believed,  “the answer to that is ‘yes’, although we have expressed some views about how we would see the situation and the matter is as yet unresolved.”[xxxii]

Like advisers to asbestos or tobacco companies, the department prepared the best possible material to defend the worst and most dubious cause. In doing so, it will have contributed to a weakening of international law and to the unlawful and arbitrary detention of Australian citizens.

A second possibility is that the Government was warned by its servants against the treatment meted out to Hicks and that this advice was neither heeded nor adopted. Certainly, there were hints that government lawyers understood that the actions of the US created considerable difficulties. In a moment of candour, perhaps channelling less dark forces, Cornall admitted that the term “unlawful combatant” did “not have any precedent in international law …”[xxxiii] Furthermore, Cornall pointed out that, while Hicks was under investigation, the less said about the matter the better.[xxxiv] This was presumably said so as to not compromise possible, future criminal proceedings.

That government lawyers know the law, however, is no proof that they give frank and full advice to ministers. Admissions like this are like ripples on the surface of Loch Ness. Certainly, they are tantalising, but they are too momentary, too occasional and too ephemeral to prove that there exists a creature, hidden still from our gaze.

There is a third, more likely, more horrible possibility, and it is this: the Government and its advisers have adopted a deliberate strategy of “Don’t ask, don’t tell”. How so? Well, when asked to explain the principles that inform its actions, the Government continuously refers to the will and the wishes and the position of the US. The Attorney-General asserted the treatment of Hicks “to be a matter for the United States”.[xxxv] This is a formula that makes caged possession nine-tenths of the law and, as a brand of a servility, reached its highest form in an answer by the Attorney-General’s Department to a Senate request that the term “unlawful combatant” and the legal rights and obligations of unlawful combatants be defined: “The term “unlawful combatant’ has been used by the US to describe those persons detained at Guantanamo Bay. According to the US, unlawful combatants are those persons who have taken part in an armed conflict but are not entitled to do so under the laws of war. The US has determined that members of al-Qaeda and the Taliban do not fall within any of the categories of persons enumerated in Article 4 of Geneva Convention III. Therefore, the US position is that neither members of al-Qaeda and the Taliban are entitled to participate in an armed conflict and hence are unlawful combatants. The US has not elaborated on the legal rights and obligations of unlawful combatants …”[xxxvi]

Don’t think this dissembling is uncrafted or accidental. It is the product of highly paid and highly trained government lawyers and is part of a strategy to avoid revealing the truth. In response to questions about the legality of detention, the Office of the Attorney-General responded in terms that should leave us sobbing:

Question 1:  On what basis in international law is a detainee classified as an unlawful combatant?

Answer:       The US position is that an unlawful combatant is a person who takes part in armed hostilities and who is not entitled to combatant immunity (that is, the person does not fall within the category of persons entitled to prisoner–of –war status under Article 4 of the Third Geneva Convention of 1949).

Question 2:  Has the minister received departmental advice that, following principles of international law, David Hicks and Mamdouh Habib are unlawful combatants?

Answer:       The legal status of detainees in US custody is a matter for the US which is acting as the detaining power.

Question 3:  On what basis in international law is the US detention regime at Guantanamo Bay deemed to be lawful?

Answer:       The lawfulness of the US detention regime is a matter for the US authorities.

Question 4:  Has the minister received departmental advice that the US detention regime at Guantanamo Bay is deemed to be lawful?

Answer:       See response to question 2.

The US, the US, the US. Repeated time and time again, the US becomes justification for everything – and nothing. More than a statement of fealty, although fealty is being paid, this is bureaucratic evasion of the highest and slyest order. Certainly, government lawyers would know that the answers here slither away from the intent of the questions, which was to determine the grounds on which Australian citizens are being held.

The Howard Government is notorious for its ability to stave off unwelcome and uncomfortable advice. In this case, we can be sure that government advisers realised that departmental advice and briefings, which would give the Government no comfort on Hicks, needed to be kept at bay. Moreover, we can be sure that government lawyers and political advisers would agree, quietly and confidentially, that such advice would not be proffered. In keeping with modern practice, ministers built a firewall between them and their departmental experts. “The US” – these are the words of servants who protect a government’s back by leaving Hicks and Habib to rot.

The Prime Minister holds the view that bureaucrats do not own policy and that, in a democracy, it is a government that is brought to account: bureaucrats “don’t have to strike the balance between what is politically achievable and what in pure policy terms is desirable”.[xxxvii] Using Orwell[xxxviii] to translate the language of politics, we can read “expedient” for politically achievable and “principled” for pure policy. As Orwell also made clear, politicians cannot be brought to account if electors are kept ignorant of important facts or if they are manipulated by governments that deliberately misuse language. In the case of Hicks and Habib, the Government has worked to keep the Australian public ignorant and blissful; in doing so it has scrupulously avoided the need to account for its inaction.

THE QUESTION WE THEREFORE FACE IS: WHAT SHOULD BE DONE? Much has been made of the fact that current circumstances are unprecedented. This can hardly be denied: planes are not normally flown into skyscrapers and superpowers do not normally wage a global war on fanatics and terrorists. However, that the US is waging unprecedented war does not mean that the law has to be stood on its head. Criminal law in the US is sufficiently powerful to handle the types of crimes that Hicks is alleged to have committed.[xxxix] Furthermore, according to Justice O’Connor of the US Supreme Court, the system is competent to protect the secrets of national defence – the requirement of courts to protect intelligence sources and agencies are “properly taken into account in our due process analysis”.[xl]

We deserve better than the cowardice that has characterised the Government’s behaviour to date and, although it might be inconvenient to us to admit, Hicks and Habib both deserve better treatment. This is not just because their poor treatment diminishes them, but because, equally gravely, it diminishes us. For their unlawful actions – and not for their sins – they deserve to be fairly tried and fair judged. And if there is no fair trial and no fair judgement, they are entitled to be freed.  ♦

[i] Aristotle: Politics, Book III, Part XVI (URL: http://classics.mit.edu/, viewed September 24, 2004).

[ii] See Golden, T.: “After Terror, a Secret Rewriting of Military Law”, The New York Times, October 24-25, 2004, (URL: http://www.nytimes.com/2004/10/24/international/worldspecial2 viewed October 24-25, 2004).

[iii] For a careful teasing out of issues of security and risk from notions of rights, see Waldron, J.: “Security and liberty: the image of balance”, The Journal of Political Philosophy, vol. 11, no. 2, 2003, pp. 191-210.

[iv] See Abbott, T.: “The World since September 11”, speech to the first plenary session of the Australian Academy of Forensic Sciences, February 13, 2002. The speaker was, at the time, the president of the Law Council of Australia. At no time was he the member for Warringah.

[v] The Howard Government has also not considered it important to explain whether this war on terrorists is, in fact, a conventional war or if terrorist acts constitute a criminal offence. The Australian public has also not been privy to its Government’s thoughts on the US practice of using military forces to attack perceived enemies and terrorists yet treating captives as being beyond the reach and protection of the Third Geneva Convention.

[vi] After a slow start, US courts have also lumbered into action and have, in recent decisions, constrained the ability of the US Administration to do to detainees as it likes. See decisions of the US Supreme Court:Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., no. 03-6696; Rumsfeld, Secretary of Defense v.Padilla et al., no. 03-1027; Rasul et al. v. Bush, President of the United States, et al., nos. 03-334 and 03-343; June 28, 2004; and in the US District Court: Odah, et al. v. United States of America, no. 02-828, October 20, 2004.

[vii] Williams, D.: Doorstop interview, London, May 8, 2002.

[viii] Habib is in a cell 1.8 by 2.4 by 2.4 metres. See: Attorney-General’s Department: Response to Question on Notice, no. 124, Senate Legal and Constitutional Legislation Committee hearing, February 16, 2004.

[ix] United States Department of Defence: “Guantanamo Detainee Charged”, media release, Washington, June 10, 2004, (URL: http://www.defenselink.mil/releases/2004/nr20040610-0893.html, viewed October 5, 2004).

[x] The Age: “Hicks boycotts commission hearing”, September 23, (URL:http://www.theage.com.au/articles/2004/09/23/1095651441715.html, viewed October 5, 2004).

[xi] See: The President vs. David Hicks, SBS Independent, 2004.

[xii] Dworkin, R.: “Rights as Trumps”, in Waldron, J. (ed.): Theories of Rights, (Oxford University Press, Oxford, 1984).

[xiii] For a full discussion, see Dworkin, R.: “Terror & the Attack on Civil Liberties”, in The New York Review of Books, 2003, vol.50, no.17.

[xiv] Ibid.

[xv] See, for example, Williams, D.: Interview, Washington, May 1, 2002. The then Attorney-General showed himself to be unaware or oblivious of the concerns of Justice Weinberg of the Federal Court of Australia, who observed that the military order of President Bush, which established the basis for detention of those suspected of “international terrorism’, has been criticised for covering terrorists acts unrelated to September 11, and for being of indefinite duration. (Weinberg, M.: “… And Justice for All?” Speech to the Eight International Criminal Law Conference, October 4, 2002). See also: Attorney-General’s Department: Response to Question on Notice, no. 53, Senate Legal and Constitutional Legislation Committee hearing, May 23, 2003.

In answer to questions: Does the Government think it appropriate to hold Mamdouh Habib until the war against terror is won? And what criteria does the Government apply to determine when this war is won? the Office of the Attorney-General, Phillip Ruddock, responded that “the US position is that persons designated as unlawful combatants may be detained until hostilities have ceased; that on July 7, 2004, Mr Habib was listed by the US President as eligible for trial by military commission. At this time no charges have been laid; and that the Government has made clear to US authorities its expectation that Australian nationals who are found not guilty by a military commission will be released from custody”.

If there is a war against terror, then it is a war with no clear end in sight. And even if there is an end in sight, this is information not to be shared with the Australian people.

[xvi] Howard, J.: Interview with Neil Mitchell, Radio 3AW, January 25, 2002.

[xvii] Downer, A.: Address to the National Press Club, Canberra, November 26, 2003.

[xviii] Rumsfeld, D.: Press briefing, March 28, 2002.

[xix] Cheney, D.: The New York Times, June 21, 2004.

[xx] Williams, D.: Interview, Perth, May 6, 2002.

[xxi] Ellison, C.: Evidence to Senate Legal and Constitutional Affairs Committee, Estimates hearing, May 28, 2002, L&C 281.

[xxii] Downer, A.: Interview, Adelaide, July 10, 2004.

[xxiii] Lasry, L: “United States v. David Matthew Hicks. First Report of the Independent Legal Observer for the Law Council of Australia, September 2004”, p. 41 (URL: http://www.lawcouncil.asn.au/, viewed September 15, 2004).

[xxiv] Weinberg: loc. cit.

[xxv] Goldsmith, P.: “Terrorism and Justice: the British Perspective from the Attorney-General”, speech to the Cour de Cassation, Paris, June 25, 2004.

[xxvi] Steyn, J.: “Guantanamo Bay: The Legal Black Hole”, Twenty-Seventh FA Mann Lecture, British Institute of International and Comparative Law and Herbert Smith, Lincoln’s Inn Old Hall, November 25, 2003.

[xxvii] Lasry: loc. cit., p. 41-43. The Australian Government does not agree that the military commission is a flawed process. In answer to the question: The Attorney-General said that Australian Government has raised a number of technical matters of concern about the military commission process with the US Government. Specifically, what are these matters? The Office of the Attorney-General said that concerns had been identified “about the operational and procedural aspects of the military commission process. One concern was the lack of agreed rules of procedure that could lead to uncertainty for both the prosecution and defence. The Government has instructed the Australian ambassador in Washington to discuss procedural and operational issues with the US authorities, having regard to the understandings and previous discussions with US authorities about military commission process. The Australian Government continues to believe that the military commission process can ensure a fair and transparent trial for Mr Hicks and Mr Habib”.

[xxviii] Downer, A.: Comments to the National Press Club, Canberra, May 7, 2002.

[xxix] See: http://mikejericho.blogspot.com/2004/08/who-fears-for-david-hicks.html.

[xxx] Howard’s motivations are not all emotional. The Prime Minister has the belief that a closer intimacy with the US works to Australia’s advantage and that estrangement brings economic and security costs. Hicks’s and Habib’s rights were cashed by the Australian Government to help secure the recent free-trade agreement with the US.

[xxxi] Kafka, F.: The Trial, trans.: Muir, W. and E. (London, Vintage, 1999, p. 18).

[xxxii] Senate Legal and Constitutional Affairs Committee: Estimates hearing, May 26, 2003, L&C 26.

[xxxiii] Senate Legal and Constitutional Affairs Committee: Estimates hearing, May 26 2003, L&C 26.

[xxxiv] Cornall, R.: Evidence to Senate Legal and Constitutional Affairs Committee, Estimates hearing, February 19, 2002, L&C 271. Of course, not all silence is golden. The Government has issued “conclusive certificates” to stymie the release of advice provided to it by departments. See McKinnon, M.: “You don’t need to know that”, The Australian, October 6, 2004. Apparently, Australians are not to be trusted to know whether or not Hicks is lawfully held.

[xxxv] Williams, D.: Interview, Perth, May 6, 2002.

[xxxvi] Attorney-General’s Department: Response to Question on Notice, no. 54, Senate Legal and Constitutional Legislation Committee hearing, May 26, 2003.

[xxxvii] Hartcher, P.: “PM’s poll pitch: Labor will minimise choice”, The Sydney Morning Herald, October 6, 2004.

[xxxviii] See, for example, Orwell, G.: Politics and the English language, Horizon, 1946.

[xxxix] Dworkin, R.: “Terror & the Attack on Civil Liberties”.

[xl] Hamdi et al. v. Rumsfeld, Secretary of Defence, et al., 543 US 25 (2004). This knocks into a cocked hat the argument of Australian Attorney-General Phillip Ruddock, who has maintained he hadn’t seen any reason why Australia should be arguing for Hicks to be dealt with before an American civilian court, where security issues would be exposed to possible damage. Ruddock, P.: Interview, September 15, 2004.