Almost two in three voters disapprove of the Government’s handling of the David Hicks case, according to the latest Herald/Nielsen poll. And in a neat parallel, the Australian government has suddenly become, in the PM’s words, “very unhappy” with the US administration for delays in bringing Hicks to trial.

In an interview with Fran Kelly yesterday morning, Foreign Minister Alexander Downer recalled his discussion with new US Secretary of Defence, Robert Yates:

…He did tell me that both he and President Bush were well aware of my and the Prime Minister’s, to use his words, concern and annoyance about this…

Our concern, and obviously it’s the concern of the public, I think the nation is at one on this, is that this whole process has taken an inordinately long time … now some of that blame can be sheeted home directly to the American administration and we’ve made that pretty clear to them…

Prime Minister Howard told Laurie Oakes on Sunday:

Laurie, I’m very frustrated about the length of time it’s taken… We are pressing the Americans, almost on a daily basis, to bring this man before the military commission. I am very unhappy.

…the concern that I’ve expressed to President Bush, and will go on expressing it; we are unhappy, frustrated with the amount of time it’s taken. I don’t think the Americans have handled that part of it well and it has made people legitimately concerned…

In December, The Law Council of Australia created a timeline, “The Australian Government’s Position on David Hicks”, by pulling together direct quotes made since 2002.

Here, Crikey updates the list for a study in how the government has subtly, yet significantly, shifted their rhetoric. It’s not quite a U-Turn, more like changing lanes, but five years later, the government’s language on Hicks is markedly different from the dismissive tone of 2002:

Robert Hill – 15 January 2002: “If you want me to be frank I don’t have a lot of sympathy for Hicks. What is a terrorist? Somebody who’s prepared to kill innocent people to further a political objective.”

John Howard – 25 January 2002: “He’s in detention. He knowingly joined the Taliban and al-Qaeda. I don’t have any sympathy for any Australian who’s done that.”

John Howard – 2 August 2002: “Interviewer: Just very quickly, David Hicks, the suspected terrorist being held indefinitely without bail – is that fair? Howard: Well, given the circumstances of Afghanistan, I think it is, yes.”

John Howard – 4 July 2003: “I am satisfied on the information that I have, if any Australians are tried in the United States, the basic conditions of the presumption of innocence, access to a lawyer and so forth, all of the things that are basic to the judicial system as we understand it will be applied.”

John Howard – 11 June 2004: We are satisfied with the assurances we’ve been given by the Americans that the military commission procedure will accord with the principles of criminal justice as we understand it.”

John Howard — 18 July 2005: “Can I say in relation to the military commission process, Australia is satisfied — particularly in the wake of some changes that were made to the process — Australia is satisfied that the military commission process in relation to David Hicks, as he is the one Australian held in Guantanamo Bay, will provide a proper measure of justice. We welcome the appeals court decision in the United States, which removes a roadblock to a speedy adjudication of Mr Hicks’ position. The allegations against him are particularly serious, and we look forward to them being dealt with before the tribunal — the appropriate tribunal, which is the military commission. And I welcome the comments that have been made by the secretary in relation to that. And beyond that, it will be now a matter for the commission to deal with it. And that is very much how it should be.”

Philip Ruddock — 1 August 2005: “My situation is quite clear. The Americans have assured me that they have a substantial case against Mr Hicks; that it needs to be dealt with before a tribunal that can protect security-related information; that in the context of war, war crimes tribunals have always been the mechanism for securing that protection, as well as bringing people to trial. And in that context, while they are not precisely the same as our civilian courts, dealing with criminal matters, they are an appropriate medium for doing so. Now there are some people who are wanting to attack them, and some people who will say almost anything about them. There are good reasons for using a military commission process, when we are still engaged against al Qaeda. And, and the fact is, some of the evidence that will undoubtedly have to be adduced, is from people who have been engaged in those matters…”

Alexander Dower — 2 August 2005: “What we’ve done is gone back to the Americans and asked them for an explanation [in response to emails leaked from military-commission prosecutors expressing strong opinions that the military commission process was ‘half hearted’, ‘disorganised’ and not ‘full and fair’] . The Americans have told us, and we just got a reply back from them, or at least a cable from our embassy in Washington during the course of today, the Americans have told us that they had a full investigation into the allegations made in those emails, including by the Inspector General of Defence, there was a very thorough, a very thorough investigation into these allegations because amongst the material in these emails are very serious allegations. And um, the Americans have told us that those investigations cleared the Military Commission process.

Interviewer: This was the military investigating itself, Mr Downer, against serious charges of corrupting the process?

This is the sort of argument that it doesn’t matter who the investigator is unless it’s the ABC, no-one’s ever going to take them seriously. …. The Inspector General of Defense in the US is somebody you can take seriously. I don’t think we’re going to get into the game of smearing his integrity.”

John Howard – 2 August 2005: “I understand that and we have repeatedly said, and as recently as when I was last in Washington only three weeks ago that we want the trial brought on quickly. And I was told, and it was publicly repeated by Donald Rumsfeld at a joint press conference, that the trial would come on very quickly, and we’ll continue to press that. In relation to the most recent allegations made by the two Americans [prosecutors who quit in protest at the bias of Military Commission regime], our Ambassador spoke again to the Pentagon last night our time, and the head of the Military Commission operation said that those allegations had been extensively investigated over a two month period.

Interviewer: By whom?

By the people against whom the allegations were made.” Philip Ruddock – 4 August 2005: “While there might be retired and armchair critics from Australia, I think the ultimate decisions in relation to the lawfulness of what is happening [regarding the Military Commissions] is determined in the United States.”

John Howard – 12 May 2006: “Well we want Hicks brought to trial as soon as possible. … What’s holding it up at the moment is not the American Administration or the Australian Government. It’s a court challenge within the United States which has the sympathy and the support of Mr Hicks and his lawyers and until that court challenge is resolved, the Military Commission trial can not go ahead, and that challenge has been responsible for about at least a year’s delay in Hicks being brought to trial.”

Philip Ruddock – 28 July 2006: “The Australian Government has made it clear to the United States that it continues to expect appropriate procedures will be in place to ensure a fair trial. The principal concern I have is that all the assurances that have been given to us – and there are a number of them- are honoured. And I am sure they will be. The US is aware of our ongoing concern. Otherwise there wouldn’t be discussions. While the United States will pursue the prosecution of Mr Hicks, any announcement on the details will be a matter for them.”

Philip Ruddock – 6 November 2006: “The United States has said that he will be charged under the new military commission arrangements approved by the United States Congress. We want to see those matters dealt with as expeditiously as possible and we continue to make representations to the United States to achieve that outcome

Interviewer: How long would be acceptable?

“Well it’s not a question of how long is acceptable. What we know is that in the United States they believe in the rule of law as well and if people want to challenge the lawfulness of procedures sometimes these matters are outside the hands of governments, they’re in the hands of the courts.”

Philip Ruddock – 6 November 2006: “I’d simply say broadly speaking I don’t think any Australian would be arguing that if there were delays because people wanted to bring legal proceedings in relation to matters where people had been charged with offences that they ought to be … escape responsibility for their actions. And look, I’ve made the point and some people think I’m trivializing the matter when I raise it, but there have been circumstances in Australia where people have remained detained for as long as 5 years before proceedings were finally concluded and I don’t recall any advocacy on those matters.”

Alexander Downer — 12 December 2006: “…But we do want David Hicks’ charges to be brought forward as soon as possible after those regulations are introduced, are promulgated. And, you know, this process has taken a very long time. I know that you can make the argument that the delay is substantially, if not exclusively, due to appeals by Mr Hicks’ lawyers and the Hamden case and so on that have delayed the process. Of course they have delayed the process and the delay has been, in that respect, brought about through the access these people have to civil courts here in the United States, which is part of the process that you wouldn’t expect. But, having said all of that, it is now five years since David Hicks was incarcerated and, you know, there have been charges laid, alright, the Supreme Court made it’s decision earlier this year, but we do want the charges to be brought forward as quickly as possible and we don’t want any more unnecessary delay in relation to this case.”

Alexander Downer — 20 January 2007: “I don’t particularly appreciate being abused and denigrated in the context of campaigns that people are running. I’ve read what the lawyers said…Look, they’re not helping their case. Their case is best served by addressing the facts, dealing with the facts… If the lawyers judge that he hasn’t had a fair trial then the lawyers, on behalf of Hicks, will be able to appeal to the Supreme Count of the United States of America…

John Howard — 29 January 2007: “We’ll see whether that time line is met…I do not accept that he can be held indefinitely without trial, whatever view I may have about the alleged offences with which he is charged.”

Philip Ruddock — January 31 2007: “My view is that sleep deprivation per se is not necessarily torture or coercive. It depends upon what you do additionally…People respond to detention in different ways…Some people don’t handle it well.”

John Howard — 2 February 2007: “The delay of the last five years has been very regrettable. Some of that has been due to objections by people including Mr Hicks’ advisers. But a lot of it has been viewed as a slow process in the United States and I am glad that it is now finally come to a situation where charges are being laid. I would encourage in a very public way, and will be doing it privately, for the trial to be bought on as soon as possible…”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey