WEBVTT
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Okay, we're rolling.
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All right
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Good morning.
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Good morning.
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We are very grateful to you
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for participating in the Witness to Guantanamo Project.
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We invite you to speak of your experiences and involvement
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with detainees who were held in Guantanamo Bay, Cuba.
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We are hoping to provide you with an opportunity
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to tell you the story in your own words.
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We are creating an archive of stories
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so that people in America and around the world
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will have a better understanding of what you and others
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have observed and experienced.
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Future generations must know what happened at Guantanamo
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and by telling your story you're contributing to history.
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And we are very grateful to you
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and appreciate you willingness to speak with us today.
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If anytime during the interview you'd like to take a break,
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just let us know.
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And if there's anything you say you'd like to remove
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then let us know and we can always remove it.
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And I like to begin by asking you your name,
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and birthday, and age, and your residence.
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You can start with that name.
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All right, my name is Stephen Kenny.
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I was born on the 17th of April, 1954,
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and that makes me 57 years of age.
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And I live in Adelaide.
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I live at 60 Carlisle Road, Westbourne Park
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in South Australia.
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And where's your hometown?
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Well, Adelaide is my hometown these days.
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I was born in country, South Australia
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near a place called Port Kenny.
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It does have a historical connection.
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Oh yeah.
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That's where they ended up.
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Okay.
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And your marital status?
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I'm married.
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I've been married for 32 years.
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Children?
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I have two children and one who's died when she was 10,
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and if I can just tell you that to tie I'm wearing
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was the last present she gave me.
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Oh, sweet.
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So that's the significance
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of the tie.
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And a little bit about your education
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and current occupation.
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I was educated in high school in Adelaide
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at a boarding school,
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there was no high school where I grew up.
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I then attended Adelaide University
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completed a law degree there,
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and I've been practicing law in Australia
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for over 30 years.
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And I guess we could begin then
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by telling us how it was that you became involved
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in Guantanamo issues.
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Unless you wanna tell a little background before that
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if you think that helps,
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but otherwise we can go right into that.
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Yes, there is a little bit of background
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in terms of my positioning of it.
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About a year before, I had assisted a family
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whose son had been shot by the police
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and I read it on the front page of the paper
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one Sunday morning and realized that the father
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actually had an office in the same floor
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of the building I worked in.
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And although I didn't know him well,
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I was certainly, I knew him
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and realized what trauma that could create
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and immediately contacted him and said, can I help?
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And realized that there was a great deal of assistance
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I could give to the family.
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And so with that in mind, in the summer of 2002
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I was on the beach in Kangaroo Island reading the newspapers
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and read about taking this Australian
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to Guantanamo Bay in Cuba,
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and, of course, like everyone else had no idea
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that Americans had any interest in Cuba.
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But what really caught my eye was this issue,
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they were taking them there deliberately
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to get him beyond the law and felt that that, as a lawyer,
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that was an incredibly serious matter.
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But I also recognize that in the publicity,
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which there was a lot at that stage,
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the family came from a suburb of Salisbury in Adelaide
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which is not one of the highest socioeconomic areas.
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And I noted that there was no response anywhere in the paper
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from the family.
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And I realized that the family probably
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were having a fairly hard time of it.
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And so when I came back from holidays,
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I contacted some people I had previously worked with
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who I knew had some expertise in the area
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and obviously interest in such a matter,
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and asked whether they would assist.
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They included Professor Diane Bell,
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who at that stage was the Head of Women's Studies
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at George Washington University in the U.S.
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George Williams, the University of New South Wales,
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(indistinct) who was a QC and now a judge.
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And we had a discussion about what we should do
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and it was decided that we would offer to assist the family
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if they wanted any assistance.
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How much did you know about Guantanamo
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than reading that one article at that point?
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Oh, well, I did start then doing some reading
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on Guantanamo Bay to find out what it was
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and how it came about that America seemed to own
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a piece of land down there.
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And I must say at that stage
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there was still some fair bit of information
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on the internet, lots of photos of the various places
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from people who had served down there.
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And I noted also that that soon disappeared as well
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off the internet as they gradually worked their way
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through the archive and started removing things.
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But apart from that, not a lot and certainly not a lot
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about what they ultimately did down there
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because at that stages there was no information
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about the actual prison itself.
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And you spoke to these experts
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before you contacted the family, or?
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Yes, I called contacted these other people.
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I knew that in a case like this, I didn't have any expertise
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in international war crimes, terrorism.
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I was merely really an Adelaide solicitor,
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but I knew that these people had contacts
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and that we would find people who had expertise.
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And one of the people that I contacted very shortly after
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was a guy called Grant Neiman
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who's at Flinders University.
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And Grant had previously been employed
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as a prosecutor here in Adelaide for the Commonwealth,
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and had a period of about, I think about six or seven years
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as a war crimes prosecutor at the Hague
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on the former Yugoslavia.
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So he knew everything there was really to know
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about war crimes.
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Although I didn't contact,
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he wasn't one of the ones I initially contacted.
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I contacted him very shortly after we started.
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Did you think there was a problem?
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Can you explain what problem you thought was happening,
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why you felt the need for you to get involved
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the way you did.
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What were you thinking at that time?
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Well, I've been involved in a Council for Civil Liberties
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here in south Australia.
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I've been an ex chairperson for the association,
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small as it is,
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and was concerned about those sorts of matters
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that a person from Adelaide would be taken and placed
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in a position that they were beyond the law.
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And taking people and treating them in that manner
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by a country such as America was quite a shocking thing.
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And I knew that I was in a position to assist the family.
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I knew I had contacts in the United States
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that could do something about it.
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And that's what motivated me.
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But I also bore a mind my previous experience
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of working with families in traumatic cases,
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and I know the effect that it has on people.
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Think you'd tell us which family this is
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and when you called them, how that went about?
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It was the family of David Hicks,
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a young Australian who'd been taken to Guantanamo Bay,
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and I contacted Terry Hicks and his wife, Bev
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and I basically rang them up and explained who I was
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and inquired about whether they like
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to talk to somebody about it.
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And they said that, yes, but they didn't have any money
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for lawyers.
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So I said, look, I understand that's the case,
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but it's not about money and I don't expect
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there'll be any money in this case,
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but I was still very happy to talk to you and to assist you.
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So I made an appointment to go out and see them
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and meet with them.
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Had they thought about contacting lawyers?
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Do you know or?
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I don't know.
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I think they might have, but again,
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it was the issue of funding.
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Lawyers are not for people who are anything
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other than wealthy or influential, really.
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Could you tell us about the meeting
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you had with them?
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Yes, it was very pleasant, though, very lovely couple.
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They live in a modest suburban house in Adelaide,
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and they were very welcoming.
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The concern that they had was that
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they really felt that they were on their own,
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that everybody was attacking them.
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And at this stage, the papers were running stories
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about David Hicks in very negative ways
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as you could well imagine in those days.
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And so they were really under siege.
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But worse than that,
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they had been told by the Australian Federal Police
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not to talk to the press, don't talk to anyone.
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And so they they really couldn't answer anything
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that was being written on in the paper
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even though they knew some was plainly untrue.
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Did you give them advice
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on how to cope with the media?
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We had a lot of discussions about coping with the media
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and a lot of planning
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about whether we would deal with the media,
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how we would deal with it, what we would do.
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It wasn't that we launched into a media campaign.
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It was more that we needed to think about
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how we would frame the strategy
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in what we were trying to do.
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We quickly realized that that there was just
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an all out assault on David,
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particularly in a town where we have one newspaper
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and it's owned by the News Corporation.
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In fact, the News Corporation started here in Adelaide,
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in fact, across the road here with one newspaper
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called "The News."
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But the local paper now is called "The Advertiser,"
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and it was just running article after article about David.
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I mean, they interviewed everybody they could find,
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they got every scrap of paper they could find.
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They ran stories that he once went
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to a paint ball shooting thing up in the Adelaide Hills
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and it became written up as a terrorist training activity,
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an attempt to recruit others.
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It was just farcical, but it was relentless.
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So what did you decide to do next
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after you met with them?
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What was the strategy (indistinct)?
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Well the strategy was really twofold.
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The first one was to take some legal action
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and the second one was to try and deal with the media.
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And I might say Terry became an excellent media personality,
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I suppose, for lack of a better word.
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He really learned to understand and to speak well on media.
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And if you ever see some of the shots that he did,
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he was very impressive.
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And he was very well-regarded across Australia
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for standing by his son.
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So he had a lot of admirers,
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even of people who really didn't support his son at all
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at least recognize that his father was doing
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a fantastic job.
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Did you also address the media in your role?
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Yes, the media were a constant.
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It was an endless media circus, really,
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because in many ways it was very simple
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because there would be some new revelation
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would come out of the United States
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and the media would just descend on it.
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And it felt like that most of the time.
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Did it overtake your work?
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Were you able to do other work at this time?
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Well, I work in a partnership of other lawyers
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and I have a requirement of earning my way and yes, it did.
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It did impact on my work quite significantly,
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but a lot of it, because it was dealing with stuff
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in the United States I could do at night at home,
268
00:12:07.570 --> 00:12:10.933
but it certainly did interfere with my other work.
269
00:12:12.030 --> 00:12:13.540
So can you tell us what happened next
270
00:12:13.540 --> 00:12:14.926
after you met with David?
271
00:12:14.926 --> 00:12:17.477
Well, the other one was the legal strategy
272
00:12:17.477 --> 00:12:18.594
and what we would do.
273
00:12:18.594 --> 00:12:21.300
And it was pretty obvious that the thing to do
274
00:12:21.300 --> 00:12:24.120
was to either take out a writ of habeas Corpus
275
00:12:24.120 --> 00:12:26.810
and sue George Bush, because he seemed to be the bloke
276
00:12:26.810 --> 00:12:27.700
that was holding him.
277
00:12:27.700 --> 00:12:30.050
And the U.S. Military had named them all
278
00:12:30.050 --> 00:12:33.773
and demand that he'd be brought before a court.
279
00:12:35.256 --> 00:12:36.643
And that's what we did.
280
00:12:37.510 --> 00:12:40.720
But firstly, I had to find lawyers in the United States
281
00:12:40.720 --> 00:12:43.700
who were willing to sue George Bush and the U.S. military,
282
00:12:43.700 --> 00:12:48.340
and in January, 2002, it was a little difficult.
283
00:12:48.340 --> 00:12:50.770
But through my contacts with Diane Burl,
284
00:12:50.770 --> 00:12:52.860
I contacted her and I knew she'd been working
285
00:12:52.860 --> 00:12:56.640
with the law school to George Washington University.
286
00:12:56.640 --> 00:12:59.417
And I contacted one of the people there.
287
00:12:59.417 --> 00:13:02.940
And to be quite honest, he was not terribly helpful
288
00:13:02.940 --> 00:13:03.900
nor terribly interested.
289
00:13:03.900 --> 00:13:05.970
I think he just thought it was a bit farcical
290
00:13:05.970 --> 00:13:08.910
and fence what we would be trying to do this.
291
00:13:08.910 --> 00:13:09.743
What?
292
00:13:09.743 --> 00:13:11.240
Suing George Bush or that (indistinct)?
293
00:13:11.240 --> 00:13:12.570
What did they think was farcical?
294
00:13:12.570 --> 00:13:13.878
Well, no.
295
00:13:13.878 --> 00:13:15.540
That was my feelings about their reaction
296
00:13:15.540 --> 00:13:16.880
I would've expected.
297
00:13:16.880 --> 00:13:19.300
If that had happened in Australia,
298
00:13:19.300 --> 00:13:20.680
I know people in the universities
299
00:13:20.680 --> 00:13:22.210
that would have been very interested in the matter,
300
00:13:22.210 --> 00:13:25.557
really very willing to be involved and to assist.
301
00:13:25.557 --> 00:13:28.505
And I felt the interest was not great
302
00:13:28.505 --> 00:13:32.230
but I realized it was a major court case.
303
00:13:32.230 --> 00:13:34.230
It was not ever going to be easy.
304
00:13:34.230 --> 00:13:36.880
And I needed some people with some real backups,
305
00:13:36.880 --> 00:13:38.990
some real expertise and knowledge
306
00:13:38.990 --> 00:13:42.003
and the capacity to do a lot of work.
307
00:13:43.690 --> 00:13:45.750
And I didn't know anybody.
308
00:13:45.750 --> 00:13:48.180
I figured we would need to issue in Washington
309
00:13:48.180 --> 00:13:51.563
which is the court nearest where George Bush is.
310
00:13:52.997 --> 00:13:56.770
And finding somebody there, it was quite a challenge.
311
00:13:56.770 --> 00:14:01.290
So through the law school, I got a list of major law firms
312
00:14:01.290 --> 00:14:05.150
with a pro bono section and I started contacting them.
313
00:14:05.150 --> 00:14:07.850
And of course, I would ring up and basically say,
314
00:14:07.850 --> 00:14:10.240
look, I'm a block from Australia
315
00:14:10.240 --> 00:14:12.980
and I'd like to see George Bush and the U.S. Military
316
00:14:14.910 --> 00:14:17.500
on behalf of a terrorist in Guantanamo Bay
317
00:14:17.500 --> 00:14:18.690
and I want you to do it for free
318
00:14:18.690 --> 00:14:21.693
'cause I haven't got any money. (chuckles)
319
00:14:22.941 --> 00:14:23.774
I was a little more polite than that,
320
00:14:23.774 --> 00:14:26.070
but that was the basic story.
321
00:14:26.070 --> 00:14:27.400
Is it humbling?
322
00:14:27.400 --> 00:14:28.460
They were very busy.
323
00:14:28.460 --> 00:14:30.230
Everybody seemed to be very busy over there
324
00:14:30.230 --> 00:14:32.040
and in Washington at that time of year,
325
00:14:32.040 --> 00:14:34.410
obviously, they must do a lot of pro bono work,
326
00:14:34.410 --> 00:14:37.070
but no one could help at all.
327
00:14:37.070 --> 00:14:40.960
And I was really starting to get a little desperate
328
00:14:40.960 --> 00:14:43.130
in terms of finding somebody
329
00:14:43.130 --> 00:14:45.870
when I eventually found Michael Ratner
330
00:14:45.870 --> 00:14:47.750
(indistinct)
331
00:14:47.750 --> 00:14:49.950
Look, I'm not sure now, I've forgotten.
332
00:14:49.950 --> 00:14:51.590
And Michael and I have discussed this
333
00:14:51.590 --> 00:14:55.460
whether he sent me an email because he'd got word
334
00:14:55.460 --> 00:14:57.060
that I've now been in the media
335
00:14:57.060 --> 00:15:00.400
saying we are going to sue George Bush and the U.S. Military
336
00:15:00.400 --> 00:15:03.010
if you don't charge him or release him.
337
00:15:03.010 --> 00:15:03.920
That's the rule.
338
00:15:03.920 --> 00:15:05.440
He's an Australian citizen
339
00:15:05.440 --> 00:15:08.013
and he deserves to have a fair go.
340
00:15:09.580 --> 00:15:11.830
And so I can't remember whether he sent me an email
341
00:15:11.830 --> 00:15:13.800
or somebody put me onto him,
342
00:15:13.800 --> 00:15:17.500
but by this stage I'd become wary about other people.
343
00:15:17.500 --> 00:15:18.960
There've been others saying
344
00:15:18.960 --> 00:15:19.793
that we're going to act for David.
345
00:15:19.793 --> 00:15:23.430
And that was the usual I don't know whether the suspect's
346
00:15:23.430 --> 00:15:24.390
coming out of the woodwork.
347
00:15:24.390 --> 00:15:27.670
So I realized I needed to find out whether these people
348
00:15:27.670 --> 00:15:29.957
were the right people to go with.
349
00:15:29.957 --> 00:15:32.160
And there was another Australian,
350
00:15:32.160 --> 00:15:37.160
Professor Hillary Charlseworth, who was from Canberra,
351
00:15:39.200 --> 00:15:41.320
sorry, the Australian National University,
352
00:15:41.320 --> 00:15:42.870
who I knew was working in New York.
353
00:15:42.870 --> 00:15:44.790
So I got in touch with her and said,
354
00:15:44.790 --> 00:15:46.540
hey, look, can you find out who these people are
355
00:15:46.540 --> 00:15:48.080
and whether they're any good
356
00:15:48.080 --> 00:15:49.810
and whether I should go with them.
357
00:15:49.810 --> 00:15:51.397
And she sent back and email saying,
358
00:15:51.397 --> 00:15:52.670
"Look, these are the right people.
359
00:15:52.670 --> 00:15:54.835
You've found the right people, go with them."
360
00:15:54.835 --> 00:15:56.410
And that was very reassuring for me.
361
00:15:56.410 --> 00:15:59.450
I mean, that's what I try to do is to,
362
00:15:59.450 --> 00:16:01.050
and I'm now backing a serious policy
363
00:16:01.050 --> 00:16:02.670
that if I'm dealing with people overseas,
364
00:16:02.670 --> 00:16:05.310
I find an Australian that I trust
365
00:16:05.310 --> 00:16:09.460
and then ask them to find somebody else that can fit them in
366
00:16:09.460 --> 00:16:11.500
and to a larger picture to see
367
00:16:11.500 --> 00:16:12.720
if they really are the right people
368
00:16:12.720 --> 00:16:14.250
we should be dealing with.
369
00:16:14.250 --> 00:16:16.550
And can you tell us what step
370
00:16:16.550 --> 00:16:18.850
came after you finally contacted Michael Ratner.
371
00:16:18.850 --> 00:16:21.040
And well, we agreed.
372
00:16:21.040 --> 00:16:24.950
He brought in Joe Margulies into assist as well
373
00:16:24.950 --> 00:16:26.910
from the University of Chicago,
374
00:16:26.910 --> 00:16:28.640
I think he was at that stage.
375
00:16:28.640 --> 00:16:31.810
And we had a series of phone link ups
376
00:16:31.810 --> 00:16:34.040
to discuss the strategy that we had.
377
00:16:34.040 --> 00:16:37.490
That strategy at that time was to actually challenge
378
00:16:37.490 --> 00:16:41.240
the findings of the military commissions in Guantanamo Bay.
379
00:16:41.240 --> 00:16:43.703
And I said, no, I'm not interested in waiting.
380
00:16:44.653 --> 00:16:47.358
I remember at that time, I said that could be years.
381
00:16:47.358 --> 00:16:48.900
I never thought it would be quite as long
382
00:16:48.900 --> 00:16:50.120
as what it turned out to be,
383
00:16:50.120 --> 00:16:54.680
but I said, no, look, I think we should go to court now.
384
00:16:54.680 --> 00:16:56.810
And these people haven't been charged,
385
00:16:56.810 --> 00:16:58.240
they've not committed any crime.
386
00:16:58.240 --> 00:16:59.073
We're not aware that this guy
387
00:16:59.073 --> 00:17:00.920
has actually done anything wrong
388
00:17:00.920 --> 00:17:02.460
and he shouldn't be detained.
389
00:17:02.460 --> 00:17:06.947
And so we developed a strategy of issuing proceedings
390
00:17:09.230 --> 00:17:10.063
and they all agreed to that,
391
00:17:10.063 --> 00:17:12.393
that we would issue in Hicks's name.
392
00:17:13.800 --> 00:17:15.430
Hicks was the first plaintiff
393
00:17:15.430 --> 00:17:16.263
or the first?
394
00:17:16.263 --> 00:17:18.560
Hicks was to be the only plaintiff at that stage.
395
00:17:18.560 --> 00:17:23.010
And we then wrote to George Bush and the U.S. Military
396
00:17:23.010 --> 00:17:24.730
and said to them, you know, give them due warning
397
00:17:24.730 --> 00:17:28.520
that if they didn't charge him, or bringing before a court,
398
00:17:28.520 --> 00:17:31.260
or release him we would issue these proceedings.
399
00:17:31.260 --> 00:17:34.940
And to my real surprise at that time, (coughs)
400
00:17:34.940 --> 00:17:39.820
pardon me, they came out of the United States,
401
00:17:39.820 --> 00:17:42.340
State Department or some spokesman,
402
00:17:42.340 --> 00:17:43.810
started issuing press releases
403
00:17:43.810 --> 00:17:47.250
saying that David Hicks was a dangerous criminal.
404
00:17:47.250 --> 00:17:51.220
That he had threatened to kill an American serviceman.
405
00:17:51.220 --> 00:17:53.020
That he'd escaped out of his handcuffs
406
00:17:53.020 --> 00:17:54.940
on the way to Guantanamo Bay.
407
00:17:54.940 --> 00:17:56.980
That he'd attempted to chew through the wires
408
00:17:56.980 --> 00:17:58.520
on the aircraft.
409
00:17:58.520 --> 00:17:59.470
How do I...
410
00:17:59.470 --> 00:18:00.590
What?
411
00:18:00.590 --> 00:18:02.150
What is this?
412
00:18:02.150 --> 00:18:05.460
And I can understand that the way we had seen
413
00:18:05.460 --> 00:18:07.723
by that stage the photos of the way these people
414
00:18:07.723 --> 00:18:08.650
were being treated,
415
00:18:08.650 --> 00:18:11.100
and quite frankly I have been treated like that.
416
00:18:11.100 --> 00:18:12.730
And being a young Australian,
417
00:18:12.730 --> 00:18:13.787
I could, well, imagine him saying,
418
00:18:13.787 --> 00:18:16.687
"Listen, you bastard, I'll kill you and get out of here."
419
00:18:16.687 --> 00:18:18.820
So I wasn't terribly worried about that sort of stuff,
420
00:18:18.820 --> 00:18:20.970
but the other stuff was completely strange.
421
00:18:22.160 --> 00:18:24.680
The American lawyers then felt that
422
00:18:24.680 --> 00:18:28.390
we should try and find others to join in
423
00:18:28.390 --> 00:18:33.180
on the action, and particularly others who weren't involved
424
00:18:33.180 --> 00:18:34.410
with the Taliban.
425
00:18:34.410 --> 00:18:37.850
I mean the reports were that David had been associated
426
00:18:37.850 --> 00:18:40.640
with the Taliban at that time.
427
00:18:40.640 --> 00:18:44.460
And so they found the boys from Tipton
428
00:18:45.393 --> 00:18:49.520
and we actually made Rasul, the lead plaintiff,
429
00:18:49.520 --> 00:18:52.130
which from our point of view in Australia
430
00:18:52.130 --> 00:18:53.410
was probably a mistake
431
00:18:53.410 --> 00:18:55.627
because he was a complete unknown out here.
432
00:18:55.627 --> 00:18:59.930
And if Hicks had been the lead plaintiff in that case,
433
00:18:59.930 --> 00:19:01.310
it would have had a lot more impact
434
00:19:01.310 --> 00:19:04.883
in terms of his release, ultimately back into Australia.
435
00:19:05.746 --> 00:19:07.500
Do you believe that or?
436
00:19:07.500 --> 00:19:08.880
Look, I firmly believe that
437
00:19:08.880 --> 00:19:12.950
because that was actually a very significant court case.
438
00:19:12.950 --> 00:19:15.760
We ultimately lost all the way
439
00:19:15.760 --> 00:19:18.240
through the United States court system.
440
00:19:18.240 --> 00:19:20.593
And I think we got to,
441
00:19:22.222 --> 00:19:24.780
when we got to the Supreme court,
442
00:19:24.780 --> 00:19:27.600
I was told that we would lose there as well.
443
00:19:27.600 --> 00:19:32.050
But at that stage, I'd actually contacted the Cuban Embassy
444
00:19:32.050 --> 00:19:34.523
and had made arrangements to go to Cuba to get a court order
445
00:19:34.523 --> 00:19:35.620
from the Cuban court.
446
00:19:35.620 --> 00:19:37.840
Because, obviously, if the United States court
447
00:19:37.840 --> 00:19:38.730
didn't have jurisdiction,
448
00:19:38.730 --> 00:19:41.550
then the Cuban court had jurisdiction.
449
00:19:41.550 --> 00:19:44.270
I'm a little, sorry they decided to go ahead,
450
00:19:44.270 --> 00:19:46.270
I was looking forward to a trip to Cuba.
451
00:19:46.270 --> 00:19:47.850
I would've thought, I mean,
452
00:19:47.850 --> 00:19:49.860
admittedly it would have been largely a publicity stunt,
453
00:19:49.860 --> 00:19:52.240
but I think it would have highlighted
454
00:19:52.240 --> 00:19:54.740
the hypocrisy of the American legal system
455
00:19:54.740 --> 00:19:58.360
if the Supreme Court had not taken responsibility for it.
456
00:19:58.360 --> 00:20:02.070
And then Rasul made a finding that it was within
457
00:20:02.070 --> 00:20:04.290
the jurisdiction of the court.
458
00:20:04.290 --> 00:20:05.123
That's so interesting.
459
00:20:05.123 --> 00:20:07.670
I hadn't heard that, that you were plain to them
460
00:20:07.670 --> 00:20:12.170
asked the Cuban courts to intervene in Guantanamo
461
00:20:12.170 --> 00:20:14.784
if the US claimed they didn't have jurisdiction
462
00:20:14.784 --> 00:20:15.780
in Guantanamo.
463
00:20:15.780 --> 00:20:17.163
Well, the question is everywhere
464
00:20:17.163 --> 00:20:20.070
is on to somebody's jurisdiction.
465
00:20:20.070 --> 00:20:21.637
And if the American courts had said,
466
00:20:21.637 --> 00:20:25.940
"Look, not our jurisdiction," then obviously it's on Cuba.
467
00:20:25.940 --> 00:20:30.040
It's land that is leased from the Cuban Government.
468
00:20:30.040 --> 00:20:33.440
In Australia, the American government leased land
469
00:20:33.440 --> 00:20:36.770
from the Australian for their military installations,
470
00:20:36.770 --> 00:20:38.250
but that land's still Australian land
471
00:20:38.250 --> 00:20:40.030
and still under Australian law,
472
00:20:40.030 --> 00:20:42.480
and very clearly it would have been under Cuban law.
473
00:20:42.480 --> 00:20:44.430
The Cubans were very interested in that
474
00:20:45.920 --> 00:20:46.930
as you could well imagine.
475
00:20:46.930 --> 00:20:49.580
You had actually filed papers at that point?
476
00:20:49.580 --> 00:20:50.413
No, no, no.
477
00:20:50.413 --> 00:20:51.246
Waiting to see?
478
00:20:51.246 --> 00:20:53.320
Yeah, but I had made some inquiries
479
00:20:53.320 --> 00:20:55.920
to the Cuban representatives in Sydney
480
00:20:55.920 --> 00:20:58.890
and they did show some interest in that matter.
481
00:20:58.890 --> 00:20:59.723
Would have been interesting.
482
00:20:59.723 --> 00:21:01.680
So going back, can you explain to us
483
00:21:01.680 --> 00:21:05.010
why you think if David Hicks was the lead
484
00:21:05.010 --> 00:21:07.900
petitioner or plaintiff that would have made a difference
485
00:21:07.900 --> 00:21:10.610
for you and you would've got (indistinct) said earlier.
486
00:21:10.610 --> 00:21:13.833
The court case was in legal terms very significant.
487
00:21:15.684 --> 00:21:17.260
And it established for the first time,
488
00:21:17.260 --> 00:21:20.950
because up until then, we'd essentially lost every round,
489
00:21:20.950 --> 00:21:23.550
it established that the courts would hear
490
00:21:23.550 --> 00:21:25.760
about what was going on in Guantanamo Bay
491
00:21:25.760 --> 00:21:27.040
and would challenge it.
492
00:21:27.040 --> 00:21:29.390
I'd actually hope that the court would make some direction.
493
00:21:29.390 --> 00:21:32.660
I was probably a little naive in terms of expecting them
494
00:21:32.660 --> 00:21:35.300
to take some responsibility and ownership
495
00:21:35.300 --> 00:21:38.770
as an Australian court certainly I believe would have.
496
00:21:38.770 --> 00:21:40.670
But all they did was to acknowledge
497
00:21:40.670 --> 00:21:42.350
that was within the jurisdiction
498
00:21:42.350 --> 00:21:44.670
and then sent the case back to the lowest level
499
00:21:44.670 --> 00:21:46.640
of the American jurisdiction.
500
00:21:46.640 --> 00:21:48.610
We were then facing another three or four years
501
00:21:48.610 --> 00:21:50.650
to get back to the Supreme Court again.
502
00:21:50.650 --> 00:21:53.930
So they didn't deal with the problem as I saw it at all
503
00:21:54.808 --> 00:21:57.127
and that was disappointing.
504
00:21:57.127 --> 00:21:59.320
Had you flown to the U.S. during this time
505
00:21:59.320 --> 00:22:02.710
to meet with the people you were working with?
506
00:22:02.710 --> 00:22:05.915
By the time it got to the Supreme Court, yes.
507
00:22:05.915 --> 00:22:09.460
I had been in the U.S. and had managed to meet
508
00:22:09.460 --> 00:22:12.910
Michael Ratner and Joe Margulies and Elis.
509
00:22:12.910 --> 00:22:16.150
And did you offer advice on the papers
510
00:22:16.150 --> 00:22:18.470
that the lawyers filed?
511
00:22:18.470 --> 00:22:20.418
Were you involved in that to or was that-
512
00:22:20.418 --> 00:22:23.410
Really only on the original drafting
513
00:22:23.410 --> 00:22:25.790
of the first application.
514
00:22:25.790 --> 00:22:27.940
I certainly saw all the drafts that went through,
515
00:22:27.940 --> 00:22:32.383
but we're now talking some very specialist American law
516
00:22:34.370 --> 00:22:35.960
I'd had no expertise in it,
517
00:22:35.960 --> 00:22:39.430
and was dependent on the elders to draft it.
518
00:22:39.430 --> 00:22:44.060
But I certainly read all the submissions and the papers
519
00:22:44.060 --> 00:22:49.060
and the decisions along the way and the broader decisions.
520
00:22:49.310 --> 00:22:51.980
And can you tell us how Clive Stafford Smith
521
00:22:51.980 --> 00:22:53.210
came into this?
522
00:22:53.210 --> 00:22:56.870
Clive came in very early after the issue
523
00:22:56.870 --> 00:23:00.640
with the Americans reporting David Hicks.
524
00:23:00.640 --> 00:23:05.640
There was also one way one of the Congresswoman
525
00:23:05.960 --> 00:23:08.600
went down and did a tour of Guantanamo Bay
526
00:23:08.600 --> 00:23:11.550
and added to this whole thing of the attack on David Hicks
527
00:23:11.550 --> 00:23:14.150
about who threatened to kill an American citizen.
528
00:23:14.150 --> 00:23:16.370
I can remember on TV watching and saying
529
00:23:16.370 --> 00:23:19.186
and she gave him the evil eye.
530
00:23:19.186 --> 00:23:21.593
I don't know whether David could remember anything about it.
531
00:23:21.593 --> 00:23:23.490
When I later spoke to him he had no idea
532
00:23:23.490 --> 00:23:25.640
it was coming and going down there.
533
00:23:25.640 --> 00:23:27.320
Were you able to speak to David Hicks
534
00:23:27.320 --> 00:23:28.240
during this time at all?
535
00:23:28.240 --> 00:23:29.090
Not at all.
536
00:23:29.090 --> 00:23:32.563
We were not able to have any contact with him.
537
00:23:33.430 --> 00:23:36.740
The family were getting letters through the Red Cross.
538
00:23:36.740 --> 00:23:40.470
I was pushing here politically in Australia
539
00:23:40.470 --> 00:23:43.640
for access to David in Guantanamo Bay
540
00:23:43.640 --> 00:23:45.870
and making quite an issue of the fact
541
00:23:45.870 --> 00:23:50.160
that we were not getting any access at all.
542
00:23:50.160 --> 00:23:52.540
And I had sort of lowered the request
543
00:23:52.540 --> 00:23:56.599
to simply being able to visit him,
544
00:23:56.599 --> 00:24:00.410
and the lowest level of requests that I could make.
545
00:24:00.410 --> 00:24:03.260
And the Australian government were very reluctant
546
00:24:03.260 --> 00:24:04.600
to allow us to do that.
547
00:24:04.600 --> 00:24:06.400
It was Australia that blocked
548
00:24:06.400 --> 00:24:07.896
your visiting David Hicks?
549
00:24:07.896 --> 00:24:09.480
It wasn't the U.S.?
550
00:24:09.480 --> 00:24:10.880
Well, it wasn't a question
551
00:24:10.880 --> 00:24:13.500
of the Australian government blocking me,
552
00:24:13.500 --> 00:24:15.560
but the Australian government at this stage
553
00:24:15.560 --> 00:24:19.180
were exercising a lot of influence over what was happening
554
00:24:19.180 --> 00:24:20.323
in Guantanamo Bay,
555
00:24:21.350 --> 00:24:26.350
and their position was very strongly in favor of George Bush
556
00:24:27.450 --> 00:24:29.193
and what was happening there.
557
00:24:30.540 --> 00:24:32.940
I'm aware that there was a lot of communication
558
00:24:32.940 --> 00:24:34.810
between Australia and the United States.
559
00:24:34.810 --> 00:24:37.830
I made an application for freedom information
560
00:24:38.900 --> 00:24:42.400
that disclosed a very long list
561
00:24:42.400 --> 00:24:44.650
of cables and and some headings
562
00:24:44.650 --> 00:24:47.840
that indicated that there was a coordinated approach
563
00:24:47.840 --> 00:24:49.750
between the Australian and the U.S. government.
564
00:24:49.750 --> 00:24:51.250
Although, it did appear to me that really
565
00:24:51.250 --> 00:24:52.520
it was the American government
566
00:24:52.520 --> 00:24:54.140
was telling the Australian government
567
00:24:54.140 --> 00:24:56.380
what they should be saying and what was happening,
568
00:24:56.380 --> 00:24:58.780
but I haven't been able to get those cables
569
00:24:58.780 --> 00:25:00.723
we lost on our application.
570
00:25:01.770 --> 00:25:03.140
Because it was state secrets?
571
00:25:03.140 --> 00:25:05.084
Oh yeah. Yeah.
572
00:25:05.084 --> 00:25:06.403
So-
And were you able
573
00:25:06.403 --> 00:25:08.860
to send David Hicks a letter, you personally,
574
00:25:08.860 --> 00:25:09.693
as his attorney?
575
00:25:09.693 --> 00:25:12.580
Were you and his counsel, were you?
576
00:25:12.580 --> 00:25:15.280
Well, in effect I was and the position that I took
577
00:25:15.280 --> 00:25:17.360
I was acting for him
578
00:25:17.360 --> 00:25:20.600
by what we call his next friend, his father,
579
00:25:20.600 --> 00:25:24.210
because no one was able to get access to him.
580
00:25:24.210 --> 00:25:25.240
And until that time
581
00:25:25.240 --> 00:25:28.380
in the habeas corpus jurisdiction particularly,
582
00:25:28.380 --> 00:25:30.760
somebody can stand up on your behalf.
583
00:25:30.760 --> 00:25:34.540
An appropriate party would be his father
584
00:25:34.540 --> 00:25:36.670
to instruct me to take that action.
585
00:25:36.670 --> 00:25:37.820
So from a legal point of view,
586
00:25:37.820 --> 00:25:41.920
my instructions were from his father,
587
00:25:41.920 --> 00:25:43.800
but on behalf of David.
588
00:25:43.800 --> 00:25:45.030
And were you able to send him
589
00:25:45.030 --> 00:25:46.940
any correspondence?
590
00:25:46.940 --> 00:25:48.380
Not in those early days?
591
00:25:48.380 --> 00:25:50.020
No, there was no correspondence
592
00:25:50.020 --> 00:25:55.000
and no contact with David at all.
593
00:25:55.000 --> 00:25:57.900
Ultimately they were able to exchange letters
594
00:25:57.900 --> 00:26:00.020
with the family through the Red Cross,
595
00:26:00.020 --> 00:26:04.800
and they advised David that I'd been instructed
596
00:26:04.800 --> 00:26:06.060
and that I was acting.
597
00:26:06.060 --> 00:26:09.903
And so he was aware that it was trying to assist.
598
00:26:11.108 --> 00:26:13.840
And at one stage, a little further down the track,
599
00:26:13.840 --> 00:26:18.190
I managed to organize a phone call
600
00:26:18.190 --> 00:26:22.540
from his parents to David, which was very tightly monitored
601
00:26:22.540 --> 00:26:24.270
and by then started conversation.
602
00:26:24.270 --> 00:26:27.170
Was that pre or post the Rasul decision,
603
00:26:27.170 --> 00:26:28.190
that phone call?
604
00:26:28.190 --> 00:26:29.810
I've forgotten, to be honest,
605
00:26:29.810 --> 00:26:32.220
I can't remember exactly when that was.
606
00:26:32.220 --> 00:26:33.920
I mean, this was all.
607
00:26:33.920 --> 00:26:36.820
I mean the Rasul stuff took a number of years.
608
00:26:36.820 --> 00:26:40.060
I believe it was probably pre the Rasul decision.
609
00:26:40.060 --> 00:26:41.970
In fact, I'm not even sure.
610
00:26:41.970 --> 00:26:44.600
I think we had actually got to Guantanamo Bay
611
00:26:44.600 --> 00:26:48.890
before the ultimate Rasul decision in the Supreme Court.
612
00:26:48.890 --> 00:26:51.610
You personally got to Guantanamo.
613
00:26:51.610 --> 00:26:53.180
Yes, I did.
614
00:26:53.180 --> 00:26:56.423
I was the first lawyer into Guantanamo Bay.
615
00:26:57.828 --> 00:26:59.320
Do you have any idea when that might be
616
00:26:59.320 --> 00:27:00.327
and how that happened?
617
00:27:00.327 --> 00:27:04.030
It was in November, December.
618
00:27:04.030 --> 00:27:05.020
If I have to remember the date,
619
00:27:05.020 --> 00:27:06.800
it must've been about 2004
620
00:27:09.693 --> 00:27:11.434
or 2005.
Oh, Rasul was decided
621
00:27:11.434 --> 00:27:12.267
in '04.
622
00:27:13.300 --> 00:27:15.240
Okay, there was '03.
623
00:27:15.240 --> 00:27:16.762
Before Rasul was decided
624
00:27:16.762 --> 00:27:19.280
when it was just up on (indistinct).
625
00:27:19.280 --> 00:27:20.113
Yes.
626
00:27:21.040 --> 00:27:22.330
In the Supreme court.
627
00:27:22.330 --> 00:27:23.317
But (indistinct)?
628
00:27:24.190 --> 00:27:26.913
I think I had been to Guantanamo Bay by the time-
629
00:27:28.220 --> 00:27:30.150
The decision came.
The decision came out.
630
00:27:30.150 --> 00:27:33.120
Because I remember I didn't go back to the United States
631
00:27:33.120 --> 00:27:37.120
for that hearing, but I'm sure I'd been there before.
632
00:27:37.120 --> 00:27:38.580
Can you explain your first visit
633
00:27:38.580 --> 00:27:39.740
to Guantanamo.
634
00:27:39.740 --> 00:27:42.350
Probably to explain how it came about,
635
00:27:42.350 --> 00:27:45.970
my understanding was that they had convinced David Hicks
636
00:27:45.970 --> 00:27:48.890
that he should plead to something
637
00:27:48.890 --> 00:27:51.680
and that David was prepared to do that.
638
00:27:51.680 --> 00:27:53.070
And that as a result,
639
00:27:53.070 --> 00:27:56.013
he would then be coming home shortly thereafter.
640
00:27:57.296 --> 00:28:00.310
And so I had been pushing the Australian government
641
00:28:00.310 --> 00:28:01.660
for years and years and years
642
00:28:01.660 --> 00:28:04.180
to be able to have access to David
643
00:28:04.180 --> 00:28:07.127
for him to be charged or brought before a court.
644
00:28:07.127 --> 00:28:12.127
And then all of a sudden they were prepared to facilitate
645
00:28:12.220 --> 00:28:13.643
my travel to Guantanamo Bay.
646
00:28:14.560 --> 00:28:15.393
They meaning?
647
00:28:15.393 --> 00:28:17.623
The Australian and American governments.
648
00:28:19.148 --> 00:28:21.190
I needed a security clearance,
649
00:28:21.190 --> 00:28:23.810
which they gave me in about a week,
650
00:28:23.810 --> 00:28:25.890
which was most unusual.
651
00:28:25.890 --> 00:28:27.497
They organized my flights over there.
652
00:28:27.497 --> 00:28:32.497
The Australian government, granted some legal aid funding
653
00:28:33.570 --> 00:28:35.090
for me to travel there,
654
00:28:35.090 --> 00:28:37.310
which they had been refusing all the way along
655
00:28:37.310 --> 00:28:40.900
and denied that they would ever do that.
656
00:28:40.900 --> 00:28:43.580
And suddenly everything was facilitated.
657
00:28:43.580 --> 00:28:46.383
Within sort of a week I was heading for Guantanamo Bay.
658
00:28:47.417 --> 00:28:49.010
And I believe the the reason for it
659
00:28:49.010 --> 00:28:51.000
was that the Americans had decided
660
00:28:51.000 --> 00:28:52.597
that David would plead guilty to something
661
00:28:52.597 --> 00:28:55.350
and they could then have their first show trial.
662
00:28:55.350 --> 00:28:57.500
And look, here was his Australian lawyer
663
00:28:57.500 --> 00:29:01.267
and he's getting good legal representation .
664
00:29:02.139 --> 00:29:05.910
And in a sense we knew we were being used and for that,
665
00:29:05.910 --> 00:29:08.450
but we decided that we weren't going to stand
666
00:29:08.450 --> 00:29:09.283
on a matter of principle.
667
00:29:09.283 --> 00:29:10.920
We thought it was more important
668
00:29:10.920 --> 00:29:13.420
that we actually go and see David and talk to him
669
00:29:13.420 --> 00:29:17.740
even though we knew that we would be used
670
00:29:19.290 --> 00:29:21.943
as supporting the system.
671
00:29:23.580 --> 00:29:26.680
And so quite literally within about a week,
672
00:29:26.680 --> 00:29:28.900
I was on my way to the U.S.
673
00:29:28.900 --> 00:29:32.490
I had had some contact with the Major Mori at this stage.
674
00:29:32.490 --> 00:29:35.570
The defense lawyers for the military had at that time
675
00:29:35.570 --> 00:29:40.260
been set up and had been there for about six months.
676
00:29:40.260 --> 00:29:42.000
But we'd had...
677
00:29:43.422 --> 00:29:46.010
It was while we were running the Rasul case and these guys,
678
00:29:46.010 --> 00:29:47.950
this is another little side story
679
00:29:49.905 --> 00:29:52.700
that occasionally or constantly happened in this case.
680
00:29:52.700 --> 00:29:55.870
And Joe Margulies had been contacted
681
00:29:55.870 --> 00:29:58.610
by a professor of law,
682
00:29:58.610 --> 00:30:01.770
and I won't name him because I'm defaming for it,
683
00:30:01.770 --> 00:30:06.220
but he had contacted my Margulies
684
00:30:06.220 --> 00:30:09.140
and advised Margulies that we now had a conflict of interest
685
00:30:09.140 --> 00:30:11.050
and could no longer act for David,
686
00:30:11.050 --> 00:30:13.990
and that he should kind of commence acting for David.
687
00:30:13.990 --> 00:30:15.860
Who's we had a conflict of interest?
688
00:30:15.860 --> 00:30:17.193
Margulies and myself.
689
00:30:18.210 --> 00:30:19.730
And I never quite understood the basis
690
00:30:19.730 --> 00:30:20.950
of what his claim was.
691
00:30:20.950 --> 00:30:23.980
Well, I think the conflict was because we were purporting
692
00:30:23.980 --> 00:30:26.900
to act in a civil suit and we couldn't run
693
00:30:26.900 --> 00:30:28.500
the military tribunal as well.
694
00:30:28.500 --> 00:30:31.550
And that the U.S. defense lawyers
695
00:30:31.550 --> 00:30:33.700
and this particular professor
696
00:30:33.700 --> 00:30:36.220
would then take over running the...
697
00:30:37.230 --> 00:30:38.380
Well, actually they were going to take over
698
00:30:38.380 --> 00:30:41.033
the U.S. Supreme Court action as well.
699
00:30:41.970 --> 00:30:45.750
And Joe dutifully reported it to me in a phone call,
700
00:30:45.750 --> 00:30:49.411
and I said to him, so did you tell him to fuck off?
701
00:30:49.411 --> 00:30:51.150
(interviewer laughs)
(chuckles)
702
00:30:51.150 --> 00:30:55.100
And Joe spluttered politely on the other end of the phone.
703
00:30:55.100 --> 00:30:56.750
I said, well, Joe, I think you better ring him back
704
00:30:56.750 --> 00:30:58.740
and just tell him to fuck off.
705
00:30:58.740 --> 00:31:00.140
And if you don't want to do it,
706
00:31:00.140 --> 00:31:02.500
I'm happy to do that. (laughs)
707
00:31:02.500 --> 00:31:04.613
And he agreed that he would have,
708
00:31:05.540 --> 00:31:06.770
this stage I was getting a little sick
709
00:31:06.770 --> 00:31:09.780
of some of these interferences that were occurring
710
00:31:09.780 --> 00:31:10.853
from time to time.
711
00:31:12.690 --> 00:31:14.990
But Joe had agreed that he would very politely
712
00:31:15.830 --> 00:31:18.810
inquire of what he thought the problem was
713
00:31:18.810 --> 00:31:21.050
and then he would consider it and then he'd make a decision
714
00:31:21.050 --> 00:31:23.060
in a very rational firm manner,
715
00:31:23.060 --> 00:31:25.787
which Joe was a very good lawyer
716
00:31:25.787 --> 00:31:27.750
and he was obviously the perfect man.
717
00:31:27.750 --> 00:31:31.110
And I could clearly say those sorts of things to him
718
00:31:31.110 --> 00:31:33.910
and get away with it. (chuckles)
719
00:31:33.910 --> 00:31:36.081
And then this is around the time
720
00:31:36.081 --> 00:31:37.090
when you then went Guantanamo?
721
00:31:37.090 --> 00:31:39.420
This was just before I went to Guantanamo Bay
722
00:31:39.420 --> 00:31:41.120
because I hadn't met them,
723
00:31:41.120 --> 00:31:44.230
and that, to be honest, did put me a little off side.
724
00:31:44.230 --> 00:31:47.330
The military lawyers, I thought, well, firstly
725
00:31:47.330 --> 00:31:48.810
they are the military lawyers
726
00:31:48.810 --> 00:31:51.610
they are not some independent party,
727
00:31:51.610 --> 00:31:54.070
they're appointed by the military.
728
00:31:54.070 --> 00:31:56.150
And I understand the jag system over there,
729
00:31:56.150 --> 00:31:57.980
I know how that works,
730
00:31:57.980 --> 00:32:01.230
but I still had, after that conversation,
731
00:32:01.230 --> 00:32:02.743
some reservations about them.
732
00:32:03.800 --> 00:32:05.490
What was your expectations
733
00:32:05.490 --> 00:32:06.993
going to Guantanamo?
734
00:32:09.830 --> 00:32:13.820
That's very, the expectations, probably not a lot.
735
00:32:13.820 --> 00:32:17.170
I had no idea what was likely to happen.
736
00:32:17.170 --> 00:32:19.780
I had not been at that stage given the information
737
00:32:19.780 --> 00:32:22.160
that they'd been priming David Hicks for a guilty plea
738
00:32:22.160 --> 00:32:24.370
in those very early days.
739
00:32:24.370 --> 00:32:26.167
When I left here I didn't know any of that
740
00:32:26.167 --> 00:32:28.750
and suddenly it had suddenly all happened
741
00:32:28.750 --> 00:32:32.310
and I had no indication as to why
742
00:32:32.310 --> 00:32:33.693
that had suddenly happened,
743
00:32:34.760 --> 00:32:37.810
because it was a complete about face
744
00:32:37.810 --> 00:32:41.170
to what I'd faced for the last two or three years
745
00:32:41.170 --> 00:32:43.090
of (indistinct).
Did you really sense
746
00:32:43.090 --> 00:32:45.170
and what you would see down there?
747
00:32:45.170 --> 00:32:46.650
Did you know what you would see?
748
00:32:46.650 --> 00:32:47.833
Were you afraid?
749
00:32:48.720 --> 00:32:51.020
No I was never afraid.
750
00:32:51.020 --> 00:32:52.610
Maybe I'm just a little foolish,
751
00:32:52.610 --> 00:32:57.610
but I'm prepared to take risks on matters like that.
752
00:32:57.990 --> 00:33:02.990
But I have very strong faith in the Australian government.
753
00:33:03.200 --> 00:33:06.480
I think the Australian government has quite high standards
754
00:33:06.480 --> 00:33:09.980
in the ultimate righteousness of things
755
00:33:09.980 --> 00:33:13.880
that they will always generally do the right thing.
756
00:33:13.880 --> 00:33:18.880
And even though I was in very bitter and acrimonious dispute
757
00:33:19.140 --> 00:33:21.320
with the Australian government at the time,
758
00:33:21.320 --> 00:33:23.300
I didn't believe that that would have hang me out to dry
759
00:33:23.300 --> 00:33:25.563
unless they could really get me for something.
760
00:33:27.170 --> 00:33:29.260
If they could have shafted me they would have.
761
00:33:29.260 --> 00:33:32.250
I was very careful about what I said and what I did,
762
00:33:32.250 --> 00:33:34.630
and I didn't have any skeletons in the closet
763
00:33:34.630 --> 00:33:36.513
that I was concerned about.
764
00:33:37.434 --> 00:33:39.780
But I believed if I essentially kept my nose clean,
765
00:33:39.780 --> 00:33:44.410
did the right thing that ultimately the publicity
766
00:33:44.410 --> 00:33:46.570
of me being imprisoned, or held,
767
00:33:46.570 --> 00:33:48.620
or running into trouble in Guantanamo Bay
768
00:33:49.990 --> 00:33:51.720
would protect me essentially.
769
00:33:51.720 --> 00:33:53.810
So I didn't have any doubt about that.
770
00:33:53.810 --> 00:33:55.280
Why was it...
771
00:33:55.280 --> 00:33:56.660
Before I go back to Guantanamo,
772
00:33:56.660 --> 00:34:00.580
why was this Australian government so unhappy with you
773
00:34:00.580 --> 00:34:04.800
or difficult, find you difficult, or concerned about you?
774
00:34:05.780 --> 00:34:09.160
Well, it's simply because I was constantly attacking them
775
00:34:10.031 --> 00:34:11.380
and I was trying to do it on a very basic level.
776
00:34:11.380 --> 00:34:13.610
I would say that Mr. Howard
777
00:34:13.610 --> 00:34:15.480
was the Prime Minister of Australia.
778
00:34:15.480 --> 00:34:17.770
He's allowing an Australian citizen
779
00:34:17.770 --> 00:34:20.500
to be held by a close ally
780
00:34:20.500 --> 00:34:23.070
in a position where he has never been charged
781
00:34:23.070 --> 00:34:23.930
with any crime.
782
00:34:23.930 --> 00:34:27.110
I mean, he's never been brought before a proper court
783
00:34:27.110 --> 00:34:28.800
and try to explain it.
784
00:34:28.800 --> 00:34:32.420
And there was a shift in the publicity here in Australia
785
00:34:32.420 --> 00:34:35.670
that it started out, you know, David Hicks is a terrorist
786
00:34:35.670 --> 00:34:38.360
and they're all terrorists and they should all be shot.
787
00:34:38.360 --> 00:34:43.360
But gradually we explained in the media constantly
788
00:34:44.810 --> 00:34:47.790
that if, and and his father was very good.
789
00:34:47.790 --> 00:34:50.060
He would say, "Look, if he's done something wrong,
790
00:34:50.060 --> 00:34:51.250
I don't mind charge him.
791
00:34:51.250 --> 00:34:54.020
We'll organize to defend him in the normal manner.
792
00:34:54.020 --> 00:34:55.780
But you can't hold him there without charging him.
793
00:34:55.780 --> 00:34:57.330
He hasn't done anything wrong."
794
00:34:58.430 --> 00:35:03.430
And so it was ultimately that message
795
00:35:04.040 --> 00:35:08.030
of what Australians would call a fair go that got through.
796
00:35:08.030 --> 00:35:10.560
I think that, and the government realized it
797
00:35:10.560 --> 00:35:13.750
and they were tracking it in the opinion polls.
798
00:35:13.750 --> 00:35:17.140
And it was starting to become an issue
799
00:35:18.850 --> 00:35:21.190
and having someone constantly criticized them
800
00:35:21.190 --> 00:35:22.940
for their failures,
801
00:35:22.940 --> 00:35:25.680
attacking the Attorney General for his failure
802
00:35:25.680 --> 00:35:30.680
to uphold the law, as I saw, it didn't win many friends.
803
00:35:30.870 --> 00:35:31.960
So, no.
804
00:35:31.960 --> 00:35:33.330
And I'd had a little history
805
00:35:33.330 --> 00:35:37.410
with some of the government ministers before
806
00:35:37.410 --> 00:35:38.850
on a previous court case I'd done.
807
00:35:38.850 --> 00:35:40.740
So I wasn't liked.
808
00:35:40.740 --> 00:35:44.370
And they would say some very nasty things and criticize me.
809
00:35:44.370 --> 00:35:45.910
And so when you arrived in Guantanamo
810
00:35:45.910 --> 00:35:47.980
what you did see?
811
00:35:47.980 --> 00:35:49.240
Well, can I just go back
812
00:35:49.240 --> 00:35:52.126
in terms of getting to Guantanamo Bay.
813
00:35:52.126 --> 00:35:55.373
I flew from Adelaide and nearly 24 hours later
814
00:35:55.373 --> 00:35:57.857
I was in Washington late at night.
815
00:35:57.857 --> 00:36:00.173
And at 9:00 AM the next morning,
816
00:36:02.840 --> 00:36:04.770
Major Mori, actually, met me at the airport
817
00:36:04.770 --> 00:36:05.603
the night before.
818
00:36:05.603 --> 00:36:09.120
And the next morning we went over to see a General Hemingway
819
00:36:09.120 --> 00:36:10.500
at the Pentagon.
820
00:36:10.500 --> 00:36:14.720
And that stage was still showing the scars of September 11.
821
00:36:14.720 --> 00:36:18.650
And it was a very surreal experience, I suppose,
822
00:36:18.650 --> 00:36:20.830
to be sort of marched into the Pentagon
823
00:36:20.830 --> 00:36:22.230
and presented before a General
824
00:36:22.230 --> 00:36:25.150
and provided with essentially a contract
825
00:36:25.150 --> 00:36:29.800
I needed to sign if I was to go to Guantanamo Bay,
826
00:36:29.800 --> 00:36:31.610
that had a whole list of conditions.
827
00:36:31.610 --> 00:36:33.850
Some of those conditions were that I would not talk
828
00:36:33.850 --> 00:36:35.520
to the media about any subject
829
00:36:35.520 --> 00:36:37.510
without their express permission,
830
00:36:37.510 --> 00:36:39.453
which of course I objected to.
831
00:36:40.300 --> 00:36:44.960
There was another one that I would remain in Guantanamo Bay
832
00:36:44.960 --> 00:36:47.480
at the direction of who was in charge of Guantanamo Bay
833
00:36:47.480 --> 00:36:48.790
for the duration of the court case
834
00:36:48.790 --> 00:36:50.860
and not leave without their permission.
835
00:36:50.860 --> 00:36:51.823
And I pointed out to the General.
836
00:36:51.823 --> 00:36:54.520
I said, General have a family in Australia.
837
00:36:54.520 --> 00:36:57.720
I have a small business I run in Australia.
838
00:36:57.720 --> 00:36:59.080
I don't wanna stay in Guantanamo Bay
839
00:36:59.080 --> 00:37:01.310
a minute longer than I need to,
840
00:37:01.310 --> 00:37:04.270
and so I'm not signing that one either.
841
00:37:04.270 --> 00:37:05.740
And the other one that really concerned me
842
00:37:05.740 --> 00:37:08.840
was that if they decided I'd committed some offense
843
00:37:08.840 --> 00:37:11.283
in which to extradite me from Australia,
844
00:37:12.459 --> 00:37:16.370
I would not resist the extradition at all.
845
00:37:16.370 --> 00:37:20.030
And I explained to the General that I had really no faith
846
00:37:20.030 --> 00:37:22.500
in their system of justice, considering what they were doing
847
00:37:22.500 --> 00:37:23.810
in Guantanamo Bay.
848
00:37:23.810 --> 00:37:26.330
And that if he wished to extract me from Australia
849
00:37:26.330 --> 00:37:27.970
I would fight him all the way,
850
00:37:27.970 --> 00:37:30.670
and I wouldn't be signing that either.
851
00:37:30.670 --> 00:37:32.140
And so we had a little standoff.
852
00:37:32.140 --> 00:37:34.230
I left without signing the paper
853
00:37:34.230 --> 00:37:37.490
and went back to meet the other defense lawyers.
854
00:37:37.490 --> 00:37:40.357
And I had the Australian counsel ringing me up saying,
855
00:37:40.357 --> 00:37:42.850
"Look if you don't sign that you'll have to pay back
856
00:37:42.850 --> 00:37:44.830
the airfare we just paid to fly over,"
857
00:37:44.830 --> 00:37:46.560
which was a business class airfare
858
00:37:46.560 --> 00:37:48.380
which is not cheap from Australia.
859
00:37:48.380 --> 00:37:50.420
I went well, whatever. (chuckles)
860
00:37:50.420 --> 00:37:51.535
We'll see what happens.
861
00:37:51.535 --> 00:37:52.473
So you signed dit?
862
00:37:52.473 --> 00:37:54.339
No, no, they dropped the clauses.
863
00:37:54.339 --> 00:37:55.720
But they dropped-
Except the one
864
00:37:55.720 --> 00:37:56.553
about the media.
865
00:37:56.553 --> 00:37:59.130
That I thought, well, we'll deal with that one later.
866
00:37:59.130 --> 00:38:02.657
I can live with that for the moment and we'll see.
867
00:38:02.657 --> 00:38:05.933
And ultimately, I'll just digress onto the media one,
868
00:38:07.140 --> 00:38:09.960
we, actually, there's another little story
869
00:38:09.960 --> 00:38:11.150
in there on the media.
870
00:38:11.150 --> 00:38:13.240
Because I was the first one in there at this stage
871
00:38:13.240 --> 00:38:14.770
we'd not been given, you know,
872
00:38:14.770 --> 00:38:16.280
we'd requested permission for media
873
00:38:16.280 --> 00:38:19.920
to talk about various things, sorry, from the General,
874
00:38:19.920 --> 00:38:20.930
but hadn't had an answer.
875
00:38:20.930 --> 00:38:23.100
So we had no permission to talk to the media.
876
00:38:23.100 --> 00:38:24.210
And I think it was about the second day
877
00:38:24.210 --> 00:38:29.210
I was in Guantanamo Bay, staying at the Naval block of flats
878
00:38:30.220 --> 00:38:32.960
on the, what was it called?
879
00:38:32.960 --> 00:38:35.610
The Leeward Side on the Guantanamo Bay proper side,
880
00:38:35.610 --> 00:38:37.780
not where all the others ended up staying later.
881
00:38:37.780 --> 00:38:39.420
I was actually right in town
882
00:38:39.420 --> 00:38:41.410
and was free to walk around by myself,
883
00:38:41.410 --> 00:38:42.450
which I duly did.
884
00:38:42.450 --> 00:38:44.320
I'd get up in the morning and go from my usual walk
885
00:38:44.320 --> 00:38:47.470
and wonder around, take photos of the gundam placements
886
00:38:47.470 --> 00:38:50.190
and all these sorts of things while I was there.
887
00:38:50.190 --> 00:38:51.283
simply as a tourist.
888
00:38:53.090 --> 00:38:54.860
And people would salute me because I had no idea
889
00:38:54.860 --> 00:38:56.173
I had gray hair and they thought
890
00:38:56.173 --> 00:38:57.520
I was obviously someone senior.
891
00:38:57.520 --> 00:39:01.090
All these people, morning and keep walking.
892
00:39:01.090 --> 00:39:03.013
I would go down to the, what is it?
893
00:39:04.360 --> 00:39:05.324
The PX or whatever
894
00:39:05.324 --> 00:39:06.410
they called it.
You were in no escort?
895
00:39:06.410 --> 00:39:09.140
No, escort. No, no.
896
00:39:09.140 --> 00:39:11.210
Mori was staying somewhere completely different
897
00:39:11.210 --> 00:39:12.580
with the Marines.
898
00:39:12.580 --> 00:39:16.393
And so I was just free to come and go as I pleased.
899
00:39:17.970 --> 00:39:20.620
But the second night I was there.
900
00:39:20.620 --> 00:39:23.240
I had a phone call, which if you've ever been,
901
00:39:23.240 --> 00:39:25.490
at that stage I hadn't worked out the phone system.
902
00:39:25.490 --> 00:39:27.540
I couldn't ring anybody from Guantanamo Bay.
903
00:39:27.540 --> 00:39:31.420
And I'm in this 50s motel unit on the hill,
904
00:39:31.420 --> 00:39:35.590
just up from the store and the phone rings.
905
00:39:35.590 --> 00:39:37.350
That's unusual and I don't even know
906
00:39:37.350 --> 00:39:38.890
what the number is myself.
907
00:39:38.890 --> 00:39:42.250
And it was a journalist who wanted to talk to me
908
00:39:42.250 --> 00:39:43.083
about the whole thing.
909
00:39:43.083 --> 00:39:45.160
And I went, well, mate, look, I'm really sorry
910
00:39:45.160 --> 00:39:46.420
but I've had to sign an agreement
911
00:39:46.420 --> 00:39:48.520
that I can't talk to the media.
912
00:39:48.520 --> 00:39:51.280
I need permission and I can't.
913
00:39:51.280 --> 00:39:52.840
He was very persistent
914
00:39:54.694 --> 00:39:58.920
and then I thought, no, no, no mate.
915
00:39:58.920 --> 00:40:01.110
This is, you know, firstly he's American
916
00:40:02.030 --> 00:40:05.150
and I didn't have a great deal of trust of anyone American
917
00:40:05.150 --> 00:40:05.983
at that time.
918
00:40:07.420 --> 00:40:08.900
And so I kept refusing
919
00:40:08.900 --> 00:40:12.380
and then he wanted to discuss things with me off the record.
920
00:40:12.380 --> 00:40:13.940
That would be fine to talk to me off the record,
921
00:40:13.940 --> 00:40:15.310
wouldn't repeat anything.
922
00:40:15.310 --> 00:40:16.790
And mate, I don't know what you don't understand
923
00:40:16.790 --> 00:40:19.230
but I can't talk to you.
924
00:40:19.230 --> 00:40:21.330
And eventually I hung up on him.
925
00:40:21.330 --> 00:40:23.850
And of course, the phone call caused me some concern.
926
00:40:23.850 --> 00:40:27.770
So the next day we were somewhere getting lunch
927
00:40:27.770 --> 00:40:29.730
and realized there was a media contingent.
928
00:40:29.730 --> 00:40:33.430
Then I ran into Lee Sales, an Australian journalist.
929
00:40:33.430 --> 00:40:35.440
And I said to her, do you have block with you
930
00:40:35.440 --> 00:40:38.170
by the name of, whatever his name was?
931
00:40:38.170 --> 00:40:39.003
She goes, "Yeah."
932
00:40:39.003 --> 00:40:39.836
And I said, what's he like?
933
00:40:39.836 --> 00:40:41.616
Said, he's from some small town paper
934
00:40:41.616 --> 00:40:44.010
under the hood on the middle of the U.S.
935
00:40:44.010 --> 00:40:46.040
Anyway I went back and spoke to Mori
936
00:40:46.040 --> 00:40:48.260
and said, go and find out who that guy is
937
00:40:48.260 --> 00:40:50.130
and what's he doing down here?
938
00:40:50.130 --> 00:40:54.140
And it was interesting to know how did he know where I was?
939
00:40:54.140 --> 00:40:54.973
And nobody knew where.
940
00:40:54.973 --> 00:40:56.650
I didn't even know where I was.
941
00:40:56.650 --> 00:40:59.983
And Lee had no idea that I was even there.
942
00:41:00.820 --> 00:41:04.560
And so he went over and chatted him up
943
00:41:04.560 --> 00:41:08.800
and part of his story was that he was
944
00:41:08.800 --> 00:41:12.560
he was also a military reservist as well.
945
00:41:12.560 --> 00:41:16.020
And I have no doubt that they were just trying me on
946
00:41:16.020 --> 00:41:18.993
to see whether I would comply with their orders or not.
947
00:41:20.294 --> 00:41:22.510
(indistinct)
948
00:41:22.510 --> 00:41:26.800
It was a time of great suspicion and concern
949
00:41:26.800 --> 00:41:31.800
and one of the colonels was involved in it.
950
00:41:31.940 --> 00:41:35.210
I spoke to about whether she thought
951
00:41:35.210 --> 00:41:37.850
that they would actually be recording the conversations
952
00:41:37.850 --> 00:41:39.280
with David Hicks.
953
00:41:39.280 --> 00:41:41.980
And she'd said, "I think it's probably highly likely."
954
00:41:43.769 --> 00:41:47.710
And that whole thing of tapping of telephones
955
00:41:47.710 --> 00:41:50.890
and perusing of people's emails.
956
00:41:50.890 --> 00:41:53.460
I know that all phone calls in and out of Australia
957
00:41:53.460 --> 00:41:56.830
or emails are actually recorded in Australia.
958
00:41:56.830 --> 00:41:59.293
I knew that before any of this occurred.
959
00:42:00.220 --> 00:42:04.760
And so they are capable of getting a complete transcript
960
00:42:04.760 --> 00:42:06.890
of everything I said and every email I sent
961
00:42:06.890 --> 00:42:08.160
and everything else.
962
00:42:08.160 --> 00:42:12.910
So it was a time of of great suspicion
963
00:42:12.910 --> 00:42:16.710
and, of course, required great caution on our part.
964
00:42:16.710 --> 00:42:19.250
So can you tell us about your first meeting
965
00:42:19.250 --> 00:42:21.050
with David Hicks?
966
00:42:21.050 --> 00:42:22.133
Yes, I can.
967
00:42:23.396 --> 00:42:25.580
He was at Camp Echo,
968
00:42:25.580 --> 00:42:29.130
which was reasonably newly built, I suspect.
969
00:42:29.130 --> 00:42:34.020
It was a compound surrounded by
970
00:42:34.958 --> 00:42:36.800
what we call cyclone fence.
971
00:42:36.800 --> 00:42:39.080
Quite high, topped with barbed wire,
972
00:42:39.080 --> 00:42:44.080
and covered with a hash and ore bagging,
973
00:42:44.730 --> 00:42:45.737
I suppose you would call it.
974
00:42:45.737 --> 00:42:48.370
So you couldn't actually see in or out.
975
00:42:48.370 --> 00:42:52.597
And you had to go in through two perimeters, I suppose,
976
00:42:54.390 --> 00:42:57.113
and through a little locked gateway.
977
00:42:59.070 --> 00:43:01.790
And you then enter into a yard that was blindingly white.
978
00:43:01.790 --> 00:43:03.703
This was a very bright, hot day.
979
00:43:06.005 --> 00:43:08.420
And there was the neatly raked gravel,
980
00:43:08.420 --> 00:43:12.120
I can still see it with a small central command post
981
00:43:12.120 --> 00:43:14.399
in the center of the field.
982
00:43:14.399 --> 00:43:17.080
And a small square,
983
00:43:17.080 --> 00:43:21.120
not much bigger than a hotel bedroom size
984
00:43:21.120 --> 00:43:24.500
with a wire mesh around it
985
00:43:24.500 --> 00:43:27.790
and a flat roof on it and it had a cement floor.
986
00:43:27.790 --> 00:43:30.433
That turned out to be the exercise cage.
987
00:43:31.644 --> 00:43:35.970
And around it were tattered, all of these plywood huts
988
00:43:35.970 --> 00:43:40.970
that had been set up and all painted a uniform dark green.
989
00:43:42.420 --> 00:43:43.940
And I looked at them
990
00:43:43.940 --> 00:43:46.150
and I thought there's something funny about this.
991
00:43:46.150 --> 00:43:49.110
It's just something a bit weird.
992
00:43:49.110 --> 00:43:51.840
And then I realized that none of them had any windows.
993
00:43:51.840 --> 00:43:53.393
None of these huts had windows.
994
00:43:54.610 --> 00:43:59.493
And it was like they were sheds, and they were.
995
00:43:59.493 --> 00:44:02.343
They were very, very basic and they were made of plywood.
996
00:44:03.660 --> 00:44:08.490
And so they they escorted us in to meet David.
997
00:44:08.490 --> 00:44:11.370
And as I walked in, David was sitting
998
00:44:11.370 --> 00:44:14.040
in front of a small table in a very small area.
999
00:44:14.040 --> 00:44:16.900
And I mean, people have now seen the size of those places.
1000
00:44:16.900 --> 00:44:18.740
You could reach out and touch the walls.
1001
00:44:18.740 --> 00:44:22.410
And there was a smaller area where the prisoners lived.
1002
00:44:22.410 --> 00:44:25.410
But I remember, usually, here's a lawyer,
1003
00:44:25.410 --> 00:44:27.060
he knew I was coming
1004
00:44:27.060 --> 00:44:30.970
and people usually stand up to greet you and he didn't.
1005
00:44:30.970 --> 00:44:32.730
Now, I didn't think anything of the time
1006
00:44:32.730 --> 00:44:36.200
So I reached over and shook his hands.
1007
00:44:36.200 --> 00:44:38.610
But then later I realized they'd actually chained him
1008
00:44:38.610 --> 00:44:39.700
to the floor.
1009
00:44:39.700 --> 00:44:41.040
He was shackled to the floor.
1010
00:44:41.040 --> 00:44:43.201
He couldn't stand up, he couldn't move.
1011
00:44:43.201 --> 00:44:44.330
They had unshackled, his hands.
1012
00:44:44.330 --> 00:44:47.970
They had done that just before we walked in,
1013
00:44:47.970 --> 00:44:50.550
but his feet were shackled on the floor
1014
00:44:50.550 --> 00:44:53.026
and his waist was shackled so he couldn't stand.
1015
00:44:53.026 --> 00:44:54.320
Who's we?
1016
00:44:54.320 --> 00:44:56.883
Major Mori was with me at that time.
1017
00:44:57.934 --> 00:45:00.650
And there was also the people
1018
00:45:00.650 --> 00:45:04.338
from the military side escorting us in.
1019
00:45:04.338 --> 00:45:08.770
And how did David Hicks appear to you?
1020
00:45:08.770 --> 00:45:11.240
Well, I actually later said that I thought
1021
00:45:11.240 --> 00:45:13.880
that he'd faired pretty well.
1022
00:45:13.880 --> 00:45:15.750
He wasn't doing too badly
1023
00:45:15.750 --> 00:45:18.110
considering what had happened to him.
1024
00:45:18.110 --> 00:45:20.550
He had a by, you know, when I came out
1025
00:45:20.550 --> 00:45:25.310
I knew he'd been mistreated in Afghanistan
1026
00:45:26.198 --> 00:45:28.040
and I knew the way he'd been treated.
1027
00:45:28.040 --> 00:45:32.010
So I thought mentally he'd actually stood
1028
00:45:32.010 --> 00:45:37.010
a great deal of punishment reasonably well.
1029
00:45:37.890 --> 00:45:40.780
I don't think I would have done quite as well as he had.
1030
00:45:40.780 --> 00:45:45.780
So he was certainly showing the effects of it,
1031
00:45:48.040 --> 00:45:52.010
but I was reasonably pleasantly surprised
1032
00:45:52.010 --> 00:45:54.830
to see that he had survived as well as he had
1033
00:45:54.830 --> 00:45:55.780
a lot of violence.
1034
00:45:55.780 --> 00:45:58.380
Certainly we now know hadn't survived
1035
00:45:58.380 --> 00:46:02.799
but I think that was just part of his own capacity to cope.
1036
00:46:02.799 --> 00:46:04.400
And what were you interested in
1037
00:46:04.400 --> 00:46:06.223
in that first day when you met him?
1038
00:46:07.550 --> 00:46:10.101
Kinds of questions that you want to know from him?
1039
00:46:10.101 --> 00:46:13.110
Well, the first thing I wanted to do was to find out
1040
00:46:13.110 --> 00:46:16.310
and as a lawyer, is to gather evidence
1041
00:46:16.310 --> 00:46:17.460
and information from him.
1042
00:46:17.460 --> 00:46:20.460
I really want to know what had happened to him,
1043
00:46:20.460 --> 00:46:22.560
where he had been in particular,
1044
00:46:22.560 --> 00:46:25.140
what the allegations against him were
1045
00:46:25.140 --> 00:46:27.360
and whether there was any substance to it.
1046
00:46:27.360 --> 00:46:29.210
I spent most of that first trip,
1047
00:46:29.210 --> 00:46:31.110
and I think we were there two or three days
1048
00:46:31.110 --> 00:46:36.110
taking a statement from him so that we could have
1049
00:46:36.150 --> 00:46:39.660
some information later to be able to compare
1050
00:46:39.660 --> 00:46:42.400
to what was being said about him.
1051
00:46:42.400 --> 00:46:44.520
So really, from my point of view,
1052
00:46:44.520 --> 00:46:46.040
it was to gather as much information
1053
00:46:46.040 --> 00:46:49.190
in the time we could as possible.
1054
00:46:49.190 --> 00:46:53.309
So did you feel like you accomplished
1055
00:46:53.309 --> 00:46:55.607
what you wanted to when you were down there?
1056
00:46:55.607 --> 00:46:57.810
Was it worth the trip?
1057
00:46:57.810 --> 00:46:59.170
Well, it was certainly worth the trip.
1058
00:46:59.170 --> 00:47:01.670
Firstly, I hope from David's point of view.
1059
00:47:01.670 --> 00:47:05.480
That was the first time he'd had any outside contact
1060
00:47:05.480 --> 00:47:07.770
with anybody else in the world,
1061
00:47:07.770 --> 00:47:11.740
other than red cross people who had been there.
1062
00:47:11.740 --> 00:47:16.740
So I think just getting there was a significant factor.
1063
00:47:17.690 --> 00:47:21.010
It meant that the process, whatever it was going to be
1064
00:47:21.010 --> 00:47:22.760
was about to start.
1065
00:47:22.760 --> 00:47:25.890
And at that stage they were certainly talking about
1066
00:47:25.890 --> 00:47:29.560
a guilty plea and some arrangement.
1067
00:47:29.560 --> 00:47:32.370
But the problem was that I wasn't convinced
1068
00:47:32.370 --> 00:47:36.580
about the charges of that they were touting
1069
00:47:36.580 --> 00:47:38.900
and nor was I convinced about the outcome
1070
00:47:38.900 --> 00:47:41.113
that the American government was seeking.
1071
00:47:44.460 --> 00:47:47.270
We could actually go back in terms of my first meeting
1072
00:47:47.270 --> 00:47:50.890
with the defense counsel to try and fill you in.
1073
00:47:50.890 --> 00:47:54.363
Mori was a very keen and enthusiastic person,
1074
00:47:55.380 --> 00:47:57.400
but a person who, in my opinion,
1075
00:47:57.400 --> 00:47:59.740
didn't appear to have terribly much experience
1076
00:48:00.700 --> 00:48:04.483
and not a lot of understanding of what was going on.
1077
00:48:05.680 --> 00:48:08.130
And I found that, I remember the first meeting
1078
00:48:08.130 --> 00:48:09.590
after I'd gone back from the Pentagon,
1079
00:48:09.590 --> 00:48:12.330
I met all of the defense lawyers who were there.
1080
00:48:12.330 --> 00:48:16.090
There was about five of them headed by Colonel Gunn.
1081
00:48:16.090 --> 00:48:17.670
And so after sort of a bit of a chat
1082
00:48:17.670 --> 00:48:18.820
it was about lunchtime and I said,
1083
00:48:18.820 --> 00:48:20.290
well, why don't we sort of all get together
1084
00:48:20.290 --> 00:48:21.790
and you can tell me what you've been doing
1085
00:48:21.790 --> 00:48:22.820
for the last six months.
1086
00:48:22.820 --> 00:48:24.810
You've all been here for six months.
1087
00:48:24.810 --> 00:48:26.880
And at that stage, Colonel Gunn excused himself
1088
00:48:26.880 --> 00:48:29.820
and explained that he was a head of the organization,
1089
00:48:29.820 --> 00:48:32.670
but there may be some conflicts of interest
1090
00:48:32.670 --> 00:48:34.910
and that he would excuse himself.
1091
00:48:34.910 --> 00:48:37.210
But if I needed anything I could ask him
1092
00:48:37.210 --> 00:48:39.460
and I needed a plane flight somewhere,
1093
00:48:39.460 --> 00:48:42.970
a hotel booking he would organize it, things happened,
1094
00:48:42.970 --> 00:48:43.803
and I thanked him for that.
1095
00:48:43.803 --> 00:48:45.670
But I found that a little unusual.
1096
00:48:45.670 --> 00:48:47.700
I worked as a prosecutor in Australia
1097
00:48:47.700 --> 00:48:49.550
and defense counsel, of course.
1098
00:48:49.550 --> 00:48:53.530
And even the person who's head of your department
1099
00:48:53.530 --> 00:48:54.750
is the most critical person there.
1100
00:48:54.750 --> 00:48:57.410
They are the ones that are either most experienced,
1101
00:48:57.410 --> 00:49:00.990
the most knowledgeable, the one who makes decisions
1102
00:49:00.990 --> 00:49:03.570
about if you're other prosecutor who we're gonna prosecute
1103
00:49:03.570 --> 00:49:04.403
what are you gonna prosecute.
1104
00:49:04.403 --> 00:49:07.390
You go to them, go, okay, this is what we're doing,
1105
00:49:07.390 --> 00:49:09.829
but no he was like, "No, no, no, no, no.
1106
00:49:09.829 --> 00:49:11.670
I don't want to be involved."
1107
00:49:11.670 --> 00:49:13.610
And I felt that these people had not,
1108
00:49:13.610 --> 00:49:16.460
in six months, had really any plan or any idea
1109
00:49:16.460 --> 00:49:18.043
of where they were going to go.
1110
00:49:18.043 --> 00:49:20.260
That was probably also a product of the fact
1111
00:49:20.260 --> 00:49:22.370
they had no idea what the hell was happening
1112
00:49:22.370 --> 00:49:23.770
and what was going to happen.
1113
00:49:23.770 --> 00:49:26.710
And I really didn't have any guidelines.
1114
00:49:26.710 --> 00:49:29.230
They had been assigned particular clients,
1115
00:49:29.230 --> 00:49:31.410
but they hadn't been able to go down and see them.
1116
00:49:31.410 --> 00:49:33.123
They had had no contact with them.
1117
00:49:34.340 --> 00:49:36.530
They were really probably just sitting in limbo
1118
00:49:36.530 --> 00:49:39.163
to be honest, with not much to do.
1119
00:49:40.789 --> 00:49:42.083
Did you get to meet the prosecutors too
1120
00:49:42.083 --> 00:49:44.510
when you went down there?
1121
00:49:44.510 --> 00:49:45.530
Yes, I did.
1122
00:49:45.530 --> 00:49:47.900
On various times, I did meet the prosecutors
1123
00:49:47.900 --> 00:49:50.530
and ultimately I was present
1124
00:49:50.530 --> 00:49:54.337
during some of the early Hicks hearings in Guantanamo Bay.
1125
00:49:54.337 --> 00:49:55.670
And of course, he was the first person
1126
00:49:55.670 --> 00:49:58.950
to be brought before one of the military commissions.
1127
00:49:58.950 --> 00:50:02.867
So there was a great deal of press interest
1128
00:50:02.867 --> 00:50:05.220
and a great deal of interest in Australia.
1129
00:50:05.220 --> 00:50:08.017
And that's why I say that if the Rasul case at that time
1130
00:50:08.017 --> 00:50:09.580
had also been the Hicks case.
1131
00:50:09.580 --> 00:50:10.560
I think it would have,
1132
00:50:10.560 --> 00:50:11.827
I mean, the profile was very large in Australia.
1133
00:50:11.827 --> 00:50:14.290
There was no one in Australia that hasn't heard
1134
00:50:14.290 --> 00:50:17.120
of David Hicks and Guantanamo Bay.
1135
00:50:17.120 --> 00:50:20.853
And that's been the case some very very early days.
1136
00:50:22.540 --> 00:50:24.160
One question about David,
1137
00:50:24.160 --> 00:50:26.250
do you know if he was in isolation
1138
00:50:26.250 --> 00:50:27.664
while he was in Guantanamo?
1139
00:50:27.664 --> 00:50:32.620
He was in isolation and that was his greatest concern
1140
00:50:32.620 --> 00:50:34.870
and obviously my greatest is concern as well.
1141
00:50:35.860 --> 00:50:38.740
It was okay when we first started, it wasn't so bad
1142
00:50:38.740 --> 00:50:41.780
because they hadn't introduced the video surveillance.
1143
00:50:41.780 --> 00:50:46.770
And so there was a person in his room at all times,
1144
00:50:46.770 --> 00:50:48.370
and David's not a bad person.
1145
00:50:48.370 --> 00:50:52.560
And he was quite friendly and had a lot of things in common
1146
00:50:52.560 --> 00:50:55.497
that he liked with the people who were guarding him.
1147
00:50:55.497 --> 00:50:58.940
And I think he established some reasonable relationships.
1148
00:50:58.940 --> 00:51:00.040
He could speak their language.
1149
00:51:00.040 --> 00:51:02.540
He liked hunting and fishing and things like that
1150
00:51:02.540 --> 00:51:04.780
that these people in the military did as well.
1151
00:51:04.780 --> 00:51:06.900
So they had things in common to talk about.
1152
00:51:06.900 --> 00:51:10.780
So his days of being in isolation weren't so bad
1153
00:51:10.780 --> 00:51:12.090
because there were people coming in
1154
00:51:12.090 --> 00:51:14.140
and sitting in the cell alongside him
1155
00:51:14.140 --> 00:51:16.950
on a single plastic chair and he sat on his bed
1156
00:51:16.950 --> 00:51:18.760
and they obviously talked.
1157
00:51:18.760 --> 00:51:20.240
When it became really concerning
1158
00:51:20.240 --> 00:51:22.100
was when they took that person out
1159
00:51:22.100 --> 00:51:24.010
and put in video surveillance.
1160
00:51:24.010 --> 00:51:27.393
And at that stage, he was in complete isolation.
1161
00:51:28.340 --> 00:51:31.270
And to counter that we organized for Mori to go down there
1162
00:51:31.270 --> 00:51:34.793
on a regular basis and just really go and keep him company.
1163
00:51:35.820 --> 00:51:38.650
And there was a great deal of desperation
1164
00:51:40.461 --> 00:51:43.380
in the thought that you will be left there
1165
00:51:43.380 --> 00:51:46.950
for weeks or months at a time with only people coming in
1166
00:51:46.950 --> 00:51:48.500
and putting food in and walking out again
1167
00:51:48.500 --> 00:51:49.770
and not talking to you.
1168
00:51:49.770 --> 00:51:52.970
I think that was probably the cruelest thing that they did.
1169
00:51:52.970 --> 00:51:54.460
Was that your concern
1170
00:51:54.460 --> 00:51:56.109
or did David express that concern to you?
1171
00:51:56.109 --> 00:51:58.050
David certainly expressed that concern.
1172
00:51:58.050 --> 00:52:00.840
And over the time I could see the deterioration
1173
00:52:00.840 --> 00:52:05.840
in his mental state being caused by that isolation.
1174
00:52:06.680 --> 00:52:08.900
And it was obviously impacting on others
1175
00:52:08.900 --> 00:52:12.590
because each of these huts had two cells in them.
1176
00:52:12.590 --> 00:52:14.850
And occasionally I would hear while I was there
1177
00:52:14.850 --> 00:52:18.460
very strange animal noises and banging coming from next door
1178
00:52:19.480 --> 00:52:21.910
that were certainly the sounds
1179
00:52:21.910 --> 00:52:23.823
of a very mentally disturbed person.
1180
00:52:25.690 --> 00:52:27.640
So after you met David the first time
1181
00:52:27.640 --> 00:52:29.720
can you tell us what happened?
1182
00:52:29.720 --> 00:52:33.530
We then went back to New York
1183
00:52:33.530 --> 00:52:38.530
and at this stage the Rasul case must have been proceeding.
1184
00:52:39.670 --> 00:52:44.470
And the problem I had was that Margulies and Ratner
1185
00:52:44.470 --> 00:52:49.470
on the Rasul case had decided ultimately
1186
00:52:49.570 --> 00:52:52.810
in the Supreme Court to act for all the parties
1187
00:52:52.810 --> 00:52:54.480
that were there.
1188
00:52:54.480 --> 00:52:58.107
And originally they had discussed doing that
1189
00:52:58.107 --> 00:52:59.380
and I said, no, no, no.
1190
00:52:59.380 --> 00:53:02.530
You let Clive act for the rest of them you act for David
1191
00:53:02.530 --> 00:53:04.750
because there'll be a problem.
1192
00:53:04.750 --> 00:53:08.050
And they'd forgotten that some year or two later
1193
00:53:08.050 --> 00:53:11.370
and had signed as acting for all of these people.
1194
00:53:11.370 --> 00:53:13.610
And of course, when we got to Guantanamo Bay
1195
00:53:13.610 --> 00:53:16.700
we then had access to some of the interrogation materials
1196
00:53:17.670 --> 00:53:22.260
which were quite interesting in a number ways.
1197
00:53:22.260 --> 00:53:25.240
The first one was that clearly they were being interrogated
1198
00:53:25.240 --> 00:53:28.590
by people who had no idea what they were talking about.
1199
00:53:28.590 --> 00:53:31.060
If these were high value prisoners,
1200
00:53:31.060 --> 00:53:33.350
the people interrogating and probably should have known
1201
00:53:33.350 --> 00:53:36.900
where the towns in Afghanistan were or Pakistan
1202
00:53:36.900 --> 00:53:39.710
or how to spell them, or have some basic knowledge.
1203
00:53:39.710 --> 00:53:43.060
It seemed to me that there seemed to be
1204
00:53:43.060 --> 00:53:47.760
endless repetitive interrogations that advanced nothing,
1205
00:53:47.760 --> 00:53:49.710
provided no new information,
1206
00:53:49.710 --> 00:53:51.380
had no new angles of questioning,
1207
00:53:51.380 --> 00:53:54.250
but merely questioning for questioning sake.
1208
00:53:54.250 --> 00:53:57.070
And I looked in one record,
1209
00:53:57.070 --> 00:54:00.690
I saw showing the number of interrogations
1210
00:54:00.690 --> 00:54:01.523
that took place there
1211
00:54:01.523 --> 00:54:03.510
multiplied by the number of people there.
1212
00:54:03.510 --> 00:54:06.330
It showed there had been at that time
1213
00:54:06.330 --> 00:54:08.693
40 interrogations for each person.
1214
00:54:09.943 --> 00:54:13.770
And certainly the ones I saw from David and others,
1215
00:54:13.770 --> 00:54:16.070
because what they would do is they were trying
1216
00:54:16.070 --> 00:54:18.420
to get the people in Guantanamo Bay
1217
00:54:18.420 --> 00:54:20.610
to essentially dob in each other.
1218
00:54:20.610 --> 00:54:21.510
What about you?
1219
00:54:21.510 --> 00:54:22.460
What about...
1220
00:54:22.460 --> 00:54:25.070
And the experience of the Tipton boys
1221
00:54:25.070 --> 00:54:26.990
was a product of that.
1222
00:54:26.990 --> 00:54:28.763
I'm sure you've read their story,
1223
00:54:29.720 --> 00:54:32.190
and that's exactly what was happening.
1224
00:54:32.190 --> 00:54:33.610
So there was this cross-linking
1225
00:54:33.610 --> 00:54:36.210
because David and these other guys could all speak English.
1226
00:54:36.210 --> 00:54:37.770
They had obviously spoken.
1227
00:54:37.770 --> 00:54:40.280
And so there was various comments.
1228
00:54:40.280 --> 00:54:44.650
And so it was decided that Michael,
1229
00:54:44.650 --> 00:54:48.240
it was decided I needed to find another U.S. council
1230
00:54:48.240 --> 00:54:53.240
to act for David and they recommended Josh Trytell.
1231
00:54:54.217 --> 00:54:56.940
And so I went back to New York at that stage
1232
00:54:56.940 --> 00:55:00.133
to sort that problem out and to meet Trytell.
1233
00:55:01.570 --> 00:55:04.780
And then after you met with him,
1234
00:55:04.780 --> 00:55:05.850
you went back to Australia?
1235
00:55:05.850 --> 00:55:07.700
Then we came back to Australia.
1236
00:55:07.700 --> 00:55:09.640
At that stage, there was still discussions
1237
00:55:09.640 --> 00:55:13.970
about whether David would enter a,
1238
00:55:13.970 --> 00:55:15.270
plead guilty to something.
1239
00:55:16.680 --> 00:55:19.260
I can remember at that time I was still quite suspicious
1240
00:55:19.260 --> 00:55:21.090
of Major Mori
1241
00:55:21.090 --> 00:55:23.967
who seemed to be quite enthusiastic about a guilty plea
1242
00:55:23.967 --> 00:55:28.820
And I think that was probably more within his expectations,
1243
00:55:28.820 --> 00:55:32.890
but certainly wasn't within mine because I talked to people
1244
00:55:32.890 --> 00:55:36.470
about war crimes and the charges were just complete rubbish
1245
00:55:36.470 --> 00:55:37.520
as far as I was concerned.
Why did he want
1246
00:55:37.520 --> 00:55:39.063
a guilty plea, do you think?
1247
00:55:40.440 --> 00:55:41.740
Look, I'm not sure.
1248
00:55:41.740 --> 00:55:43.810
I don't know whether that was, you know,
1249
00:55:43.810 --> 00:55:45.007
but certainly at that stage,
1250
00:55:45.007 --> 00:55:47.930
and I can remember sitting with David on the very last day,
1251
00:55:47.930 --> 00:55:50.000
I said to him, look, you know, this bloke's gonna come down
1252
00:55:50.000 --> 00:55:51.600
and I'm not gonna be here.
1253
00:55:51.600 --> 00:55:53.460
I said, don't do any deals with him
1254
00:55:53.460 --> 00:55:56.189
unless I'm sitting here alongside you.
1255
00:55:56.189 --> 00:55:58.958
And I understand you might plead guilty to get out of here,
1256
00:55:58.958 --> 00:56:02.908
but be careful.
1257
00:56:02.908 --> 00:56:05.344
So did you go back to Guantanamo
1258
00:56:05.344 --> 00:56:06.380
several times?
1259
00:56:06.380 --> 00:56:09.053
I ultimately did five trips to Guantanamo Bay
1260
00:56:10.158 --> 00:56:15.158
and during that period there was a court hearing.
1261
00:56:15.460 --> 00:56:19.660
And on one occasion I was able to take his father
1262
00:56:22.640 --> 00:56:24.650
and Bev Hicks with me.
1263
00:56:24.650 --> 00:56:28.820
And on another occasion I took his sister as well.
1264
00:56:28.820 --> 00:56:31.850
So his system managed to visit him there.
1265
00:56:31.850 --> 00:56:32.730
And how did that happen
1266
00:56:32.730 --> 00:56:34.980
that you were able to bring family members to David?
1267
00:56:34.980 --> 00:56:37.730
Well, I'd pressed the Australian government
1268
00:56:37.730 --> 00:56:40.000
that they should be allowed to attend.
1269
00:56:40.000 --> 00:56:41.380
And obviously the Australian government
1270
00:56:41.380 --> 00:56:44.893
put the pressure on the Americans to facilitate it.
1271
00:56:45.850 --> 00:56:49.790
And I found a person from Sydney who was willing to fund it
1272
00:56:49.790 --> 00:56:51.990
because they obviously didn't have the money
1273
00:56:53.450 --> 00:56:54.410
to fly over there,
1274
00:56:54.410 --> 00:56:58.040
but I was lucky enough that a person came forward
1275
00:56:58.040 --> 00:57:00.603
and offered some money to do that.
1276
00:57:01.510 --> 00:57:04.090
And so we were able to do it.
1277
00:57:04.090 --> 00:57:06.300
And during the five visits
1278
00:57:06.300 --> 00:57:08.280
did you council David not to plea,
1279
00:57:08.280 --> 00:57:10.643
or were you involved in the plea agreement or?
1280
00:57:11.950 --> 00:57:14.170
No, I was involved in the plea discussions
1281
00:57:14.170 --> 00:57:17.580
at various times but none of them came near
1282
00:57:17.580 --> 00:57:20.540
what I thought was a reasonable deal to plea
1283
00:57:20.540 --> 00:57:21.820
to get out of Guantanamo Bay,
1284
00:57:21.820 --> 00:57:23.200
because, really, that's how I saw it.
1285
00:57:23.200 --> 00:57:25.880
The only reason you would plead guilty to the charges
1286
00:57:26.730 --> 00:57:29.483
would be to escape the imprisonment.
1287
00:57:30.450 --> 00:57:33.120
And I can tell you that one of the things I did do,
1288
00:57:33.120 --> 00:57:35.400
and this is not widely known,
1289
00:57:35.400 --> 00:57:37.800
it's not publicly known at all,
1290
00:57:37.800 --> 00:57:40.810
is I gathered all of the information I had
1291
00:57:40.810 --> 00:57:42.550
about what the Americans said David did,
1292
00:57:42.550 --> 00:57:43.853
what the Australians did.
1293
00:57:44.784 --> 00:57:46.950
The Australian Federal Police had also investigated
1294
00:57:46.950 --> 00:57:49.010
everything David did during his entire life
1295
00:57:49.010 --> 00:57:50.360
as far as I could see.
1296
00:57:50.360 --> 00:57:51.740
And they did a very good job.
1297
00:57:51.740 --> 00:57:54.920
Those boys were very thorough, very professional,
1298
00:57:54.920 --> 00:57:57.948
and their material was probably the most damaging of all
1299
00:57:57.948 --> 00:57:59.400
(chuckles) in terms of what time of what David,
1300
00:57:59.400 --> 00:58:01.100
because they had everything and everybody
1301
00:58:01.100 --> 00:58:04.823
and I went there and they had the lot.
1302
00:58:06.449 --> 00:58:07.857
So I took all the material we had
1303
00:58:07.857 --> 00:58:10.030
and I went and saw Grant Neiman at Flinders University
1304
00:58:10.030 --> 00:58:13.763
and went, okay, Grant, this is everything that we've got.
1305
00:58:15.200 --> 00:58:18.760
What I'd like to do is for you to find a crime
1306
00:58:18.760 --> 00:58:20.720
that David Hicks has committed
1307
00:58:20.720 --> 00:58:23.200
and then I'd like to charge him in Australia
1308
00:58:23.200 --> 00:58:25.430
with that crime and apply for his extradition
1309
00:58:25.430 --> 00:58:26.330
back to Australia.
1310
00:58:27.740 --> 00:58:29.417
The reason being the Australian government was saying,
1311
00:58:29.417 --> 00:58:30.830
"Oh no, we can't bring him back here
1312
00:58:30.830 --> 00:58:32.400
because he's not committed any offense
1313
00:58:32.400 --> 00:58:34.030
known to Australian law"
1314
00:58:34.030 --> 00:58:35.430
Okay, well that's right 'cause he hasn't committed
1315
00:58:35.430 --> 00:58:36.770
any offense.
1316
00:58:36.770 --> 00:58:39.820
And then I thought, well, why don't we see
1317
00:58:39.820 --> 00:58:41.970
if there is something that we could charge him with?
1318
00:58:41.970 --> 00:58:45.583
And Grant is a very, very serious man.
1319
00:58:46.522 --> 00:58:48.680
He said, "Okay, I'll look at this.
1320
00:58:48.680 --> 00:58:51.259
And if there is something I'll assist you,"
1321
00:58:51.259 --> 00:58:54.270
in essentially would have been a private prosecution.
1322
00:58:54.270 --> 00:58:58.720
But if it was launched in Grant's name, as the complainant,
1323
00:58:58.720 --> 00:59:01.210
he's a lawyer of very high standing.
1324
00:59:01.210 --> 00:59:03.880
I mean, at this stage I'm the terrorist lawyer.
1325
00:59:03.880 --> 00:59:05.560
In fact I got an email,
1326
00:59:05.560 --> 00:59:07.350
I got a letter address to me one day,
1327
00:59:07.350 --> 00:59:10.449
Stephen Kenny, terrorist lawyer, Australia. (laughs)
1328
00:59:10.449 --> 00:59:12.010
From in Australia or from in America?
1329
00:59:12.010 --> 00:59:14.390
No, that was from Australia. (laughs)
1330
00:59:14.390 --> 00:59:15.970
But it did arrive on my desk
1331
00:59:15.970 --> 00:59:17.487
with the amusement of the staff, you know,
1332
00:59:17.487 --> 00:59:19.237
here you are, you terrorist lawyer.
1333
00:59:22.720 --> 00:59:27.720
But Grant had been sort of a chief Commonwealth prosecutor
1334
00:59:30.525 --> 00:59:32.380
and had a great deal of respect with the courts.
1335
00:59:32.380 --> 00:59:36.370
And the court, if he turned up there with a valid complaint,
1336
00:59:36.370 --> 00:59:38.580
the court would have taken that incredibly seriously.
1337
00:59:38.580 --> 00:59:40.613
It would not have been a stunt.
1338
00:59:41.629 --> 00:59:43.800
And they might've thought that I might pull
1339
00:59:43.800 --> 00:59:45.820
a stunt like that because by this stage
1340
00:59:45.820 --> 00:59:48.590
I'd pulled so many media stunts.
1341
00:59:48.590 --> 00:59:52.440
Like one Sunday I'd gone out when I knew the Prime Minister
1342
00:59:52.440 --> 00:59:55.680
was going to be in Adelaide down here on the plaza.
1343
00:59:55.680 --> 01:00:00.477
I got one of my friends who I knew had worked in a factory
1344
01:00:00.477 --> 01:00:01.950
and said, mate, I need a cage.
1345
01:00:01.950 --> 01:00:03.850
And he's, "What do you want a cage for?"
1346
01:00:03.850 --> 01:00:05.467
I go, come on, I know you got the gear out there.
1347
01:00:05.467 --> 01:00:07.250
Can we come out and can I gonna borrow your welder
1348
01:00:07.250 --> 01:00:08.340
we make a cage?
1349
01:00:08.340 --> 01:00:10.020
And I explained to him that what we were going to do
1350
01:00:10.020 --> 01:00:15.020
is set up a protest out here with Terry in a cage
1351
01:00:15.420 --> 01:00:18.160
out in front of the then ruling Liberal Party
1352
01:00:18.160 --> 01:00:21.570
convention that was being held at the plaza next door.
1353
01:00:21.570 --> 01:00:26.103
And so I went out there and I cut up this galvanized iron
1354
01:00:27.100 --> 01:00:30.020
and welded up a cage, and I then bought it on the trailer
1355
01:00:30.020 --> 01:00:32.830
down to the front out here and carried it up.
1356
01:00:32.830 --> 01:00:34.560
We didn't have a permit for anything.
1357
01:00:34.560 --> 01:00:35.530
I was like, forget it.
1358
01:00:35.530 --> 01:00:36.920
Just let's get there.
1359
01:00:36.920 --> 01:00:41.350
And so John Howard, and all the members of the government,
1360
01:00:41.350 --> 01:00:43.740
had to walk past it while I've got all the media there
1361
01:00:43.740 --> 01:00:48.740
and I've got Terry dressed in orange in the cage. (laughs)
1362
01:00:49.470 --> 01:00:50.303
How did that work?
1363
01:00:50.303 --> 01:00:51.940
How did that?
It generated a lot.
1364
01:00:51.940 --> 01:00:54.790
It actually generated a lot of publicity
1365
01:00:54.790 --> 01:00:56.280
and created copies.
1366
01:00:56.280 --> 01:00:58.450
There was a guy in Sweden that then set up a cage.
1367
01:00:58.450 --> 01:01:03.210
And I think this guy his son was in Guantanamo Bay,
1368
01:01:03.210 --> 01:01:06.610
He lived in the cage in the middle of town for ages.
1369
01:01:06.610 --> 01:01:11.610
We recreated it in New York and others did that as well.
1370
01:01:11.830 --> 01:01:15.720
So it became a very powerful tool that people could then see
1371
01:01:15.720 --> 01:01:16.853
what was going on.
1372
01:01:19.366 --> 01:01:21.110
And that was purely a media stunt
1373
01:01:21.110 --> 01:01:24.250
but it was designed to put pressure on the government
1374
01:01:24.250 --> 01:01:28.520
and that sort of stuff ultimately worked.
1375
01:01:28.520 --> 01:01:30.083
So can you go back to-
1376
01:01:30.083 --> 01:01:31.440
Go back to Grant?
1377
01:01:31.440 --> 01:01:32.720
Yeah.
Yeah, I know, I guess
1378
01:01:32.720 --> 01:01:33.870
there were so many stories in this.
1379
01:01:33.870 --> 01:01:35.163
I apologize.
1380
01:01:36.210 --> 01:01:38.160
So Grant went through it very carefully.
1381
01:01:38.160 --> 01:01:40.330
So we had everything I had from David,
1382
01:01:40.330 --> 01:01:42.760
everything from the Australian Federal Police,
1383
01:01:42.760 --> 01:01:45.490
which was a lot, and everything the Americans had,
1384
01:01:45.490 --> 01:01:49.350
which was so confusing and just so all over the place.
1385
01:01:49.350 --> 01:01:50.357
And with Grant (indistinct), he said,
1386
01:01:50.357 --> 01:01:52.840
"Look, there's not a crime known to Australian law
1387
01:01:52.840 --> 01:01:54.000
this man's committed.
1388
01:01:54.000 --> 01:01:55.250
He said, there's nothing in it.
1389
01:01:55.250 --> 01:01:57.633
So I can't prosecute him 'cause there's no crime.
1390
01:01:58.810 --> 01:02:00.420
I went, oh, that's bad luck, (chuckles)
1391
01:02:00.420 --> 01:02:03.583
because it would have been, again, a very powerful thing.
1392
01:02:04.740 --> 01:02:08.730
If he had actually been extradited back to Australia,
1393
01:02:08.730 --> 01:02:09.847
we would have just dropped the prosecution like,
1394
01:02:09.847 --> 01:02:11.850
thank you very much, we don't wish to do anything
1395
01:02:11.850 --> 01:02:13.020
about it anymore.
1396
01:02:13.020 --> 01:02:14.700
And he had been back in Australia
1397
01:02:15.950 --> 01:02:17.610
then they would have to try and extradite him
1398
01:02:17.610 --> 01:02:19.210
back to the United States, but.
1399
01:02:19.210 --> 01:02:20.240
But wouldn't it be powerful
1400
01:02:20.240 --> 01:02:23.000
just to have him say you can't find a crime
1401
01:02:23.000 --> 01:02:24.510
in all the evidence?
1402
01:02:24.510 --> 01:02:27.390
Yeah, it was, but it wasn't in a sense
1403
01:02:27.390 --> 01:02:30.060
because the Australian government were already saying that.
1404
01:02:30.060 --> 01:02:31.550
So no one was particularly interested
1405
01:02:31.550 --> 01:02:34.400
because they all assumed that that was actually the case.
1406
01:02:35.560 --> 01:02:37.870
But what I was particularly looking at was,
1407
01:02:37.870 --> 01:02:40.390
has David Hicks committed a war crime?
1408
01:02:40.390 --> 01:02:45.390
And the war crimes are an international common law
1409
01:02:46.780 --> 01:02:47.613
set of values.
1410
01:02:47.613 --> 01:02:48.600
They're the same crimes.
1411
01:02:48.600 --> 01:02:50.140
War crimes are the same in the United States
1412
01:02:50.140 --> 01:02:52.440
as they are in Australia as they are anywhere.
1413
01:02:52.440 --> 01:02:54.050
And well, they used to be.
1414
01:02:54.050 --> 01:02:56.023
I think the Americans are now different.
1415
01:02:57.128 --> 01:03:01.537
So that's why I wasn't terribly keen on an issue
1416
01:03:03.020 --> 01:03:06.290
of David pleading to something.
1417
01:03:06.290 --> 01:03:08.710
And in fact, I had a major falling out
1418
01:03:08.710 --> 01:03:10.290
with the American lawyers,
1419
01:03:10.290 --> 01:03:15.223
Josh Trytell and Mori over that whole issue.
1420
01:03:16.120 --> 01:03:19.760
And in fact, after his sister came back
1421
01:03:19.760 --> 01:03:21.280
and we'd had the discussion over there
1422
01:03:21.280 --> 01:03:22.850
about David pleading guilty
1423
01:03:22.850 --> 01:03:25.080
and (indistinct) was well, "I it anything wrong?"
1424
01:03:25.080 --> 01:03:28.130
And I mean, at this stage, I'd done the exercise with Grant.
1425
01:03:28.130 --> 01:03:31.530
So I knew that, although I'm not a war crimes expert
1426
01:03:31.530 --> 01:03:33.810
and I don't ever pretend to be,
1427
01:03:33.810 --> 01:03:35.940
I knew somebody who was, who had looked at the evidence
1428
01:03:35.940 --> 01:03:38.240
and I'd sought his advice and assistance
1429
01:03:38.240 --> 01:03:42.950
It was very clear that there was no crime
1430
01:03:42.950 --> 01:03:44.603
that he had actually committed.
1431
01:03:45.590 --> 01:03:48.700
So I was quite confident of my position.
1432
01:03:48.700 --> 01:03:52.380
And I had this argument about whether David
1433
01:03:52.380 --> 01:03:54.030
should plead to something or not.
1434
01:03:55.260 --> 01:03:56.887
And David himself had said,
1435
01:03:56.887 --> 01:03:59.463
"Look, I'm prepared to stick this out.
1436
01:04:00.720 --> 01:04:02.020
I don't want to plead to something
1437
01:04:02.020 --> 01:04:04.980
and at this stage. I can cope with what's going on.
1438
01:04:04.980 --> 01:04:09.980
And I'll stay here until my name's cleared."
1439
01:04:10.660 --> 01:04:12.293
Mori was of the line that,
1440
01:04:12.293 --> 01:04:15.100
"Oh, look, just plead to something and go back to Australia
1441
01:04:15.100 --> 01:04:17.000
and people will forget all about it."
1442
01:04:17.000 --> 01:04:20.066
And I went, mate, you have got no idea.
1443
01:04:20.066 --> 01:04:21.560
You have got no idea at all.
1444
01:04:21.560 --> 01:04:24.760
This is not something that anyone's gonna forget about.
1445
01:04:24.760 --> 01:04:26.250
I said, look, David is gonna have to wear this,
1446
01:04:26.250 --> 01:04:28.810
whatever happens, for the rest of his life.
1447
01:04:28.810 --> 01:04:31.400
And it's better to spend a bit more time now
1448
01:04:31.400 --> 01:04:35.443
and fight it than to carry it for the rest of his life.
1449
01:04:36.280 --> 01:04:40.310
And that's essentially what's happened now.
1450
01:04:40.310 --> 01:04:45.310
He's been labeled as a convicted terrorism supporter,
1451
01:04:45.680 --> 01:04:47.030
because he was charged with
1452
01:04:47.920 --> 01:04:50.033
supporting a terrorist organization,
1453
01:04:51.000 --> 01:04:54.483
which, as you know, is a war crime that does not exist.
1454
01:04:55.960 --> 01:05:00.650
But when I came back, I got an email from Mori
1455
01:05:00.650 --> 01:05:04.930
that has now disturbed me in a number ways
1456
01:05:04.930 --> 01:05:08.120
about accusing me of attempting to manipulate David
1457
01:05:08.120 --> 01:05:09.690
using his family,
1458
01:05:09.690 --> 01:05:13.450
and I had no idea what he was talking about.
1459
01:05:13.450 --> 01:05:15.910
So I contacted David's sister and said,
1460
01:05:15.910 --> 01:05:18.000
have you been in touch with Mori?
1461
01:05:18.000 --> 01:05:18.833
What have you been doing?
1462
01:05:18.833 --> 01:05:21.600
She just went, "Ah, I sent him an email last week
1463
01:05:21.600 --> 01:05:23.260
to send on to David."
1464
01:05:23.260 --> 01:05:24.910
I said, what did he say in that email?
1465
01:05:24.910 --> 01:05:28.200
She said, "Well, I just said that I supported his position.
1466
01:05:28.200 --> 01:05:30.900
That if he didn't want to plead to something
1467
01:05:30.900 --> 01:05:34.217
just to get out of there that we would support him in that."
1468
01:05:35.122 --> 01:05:37.247
And I went, well, that's fine.
1469
01:05:39.250 --> 01:05:42.170
And so that was part of a larger rift
1470
01:05:42.170 --> 01:05:44.580
that I was having with Mori.
1471
01:05:44.580 --> 01:05:48.180
And just to fill in some of that history,
1472
01:05:48.180 --> 01:05:51.250
and where I think the American system let David down,
1473
01:05:51.250 --> 01:05:55.490
when I read the rules in relation to the commissions,
1474
01:05:55.490 --> 01:05:59.630
it enabled the secondment of my second military person
1475
01:05:59.630 --> 01:06:02.390
to assist in the defense.
1476
01:06:02.390 --> 01:06:04.180
And so I went to Mori and said,
1477
01:06:04.180 --> 01:06:07.360
look, I got this guy called Grant Neiman back here.
1478
01:06:07.360 --> 01:06:08.330
I went to Neiman I said,
1479
01:06:08.330 --> 01:06:10.207
listen, were their Americans with you over there?
1480
01:06:10.207 --> 01:06:11.620
And he says, "There was about a heap of them
1481
01:06:11.620 --> 01:06:13.010
working over there."
1482
01:06:13.010 --> 01:06:13.980
Okay. All right.
1483
01:06:13.980 --> 01:06:18.010
So I went to Mori and said, look, we need to find
1484
01:06:18.010 --> 01:06:20.440
an American who's been working in war crimes
1485
01:06:20.440 --> 01:06:24.107
to come and join us to act on the defense.
1486
01:06:24.107 --> 01:06:25.480
"Oh no, we don't need anyone."
1487
01:06:25.480 --> 01:06:28.440
He just refused point blank to do that.
1488
01:06:28.440 --> 01:06:29.300
And I kept pressuring him.
1489
01:06:29.300 --> 01:06:30.890
No, no, I said, look, you and I know nothing
1490
01:06:30.890 --> 01:06:32.490
about war crimes, we're useless.
1491
01:06:33.490 --> 01:06:34.323
We know nothing.
1492
01:06:34.323 --> 01:06:36.800
We need and can have somebody who really knows.
1493
01:06:36.800 --> 01:06:38.600
And he eventually asked a friend of his
1494
01:06:38.600 --> 01:06:41.160
who was a lecturer at one of the colleges
1495
01:06:41.160 --> 01:06:43.197
for the jag people to join
1496
01:06:43.197 --> 01:06:44.887
and they refused to release him.
1497
01:06:44.887 --> 01:06:47.570
And then the next time I turned up over there,
1498
01:06:47.570 --> 01:06:50.640
Mori had appointed some guy who was junior to him
1499
01:06:50.640 --> 01:06:52.300
as the second person.
1500
01:06:52.300 --> 01:06:55.150
And I was like, who is this guy?
1501
01:06:55.150 --> 01:06:56.400
What's his experience?
1502
01:06:56.400 --> 01:06:59.603
I mean, he had a law degree, but that was it.
1503
01:07:01.857 --> 01:07:06.150
I just felt that that was a real missed opportunity
1504
01:07:06.150 --> 01:07:09.953
that we could have had somebody with some serious expertise.
1505
01:07:11.790 --> 01:07:12.920
But what I'm hearing
1506
01:07:12.920 --> 01:07:17.000
is that the conflict occurred between you and Mori
1507
01:07:17.000 --> 01:07:20.180
and where was David in all this?
1508
01:07:20.180 --> 01:07:21.550
'Cause what we had read in the media
1509
01:07:21.550 --> 01:07:24.180
was David wanted to have, he was willing to sign anything
1510
01:07:24.180 --> 01:07:25.470
just to get him out.
1511
01:07:25.470 --> 01:07:28.807
At the end, David certainly was willing to sign
1512
01:07:28.807 --> 01:07:30.960
and did sign anything essentially to get out.
1513
01:07:30.960 --> 01:07:35.310
I have no doubt that by the time that he left.
1514
01:07:35.310 --> 01:07:40.310
There's a little more story in that bit.
1515
01:07:40.630 --> 01:07:42.810
And my concern was that there was this,
1516
01:07:42.810 --> 01:07:44.550
there was a lot of pressure on David.
1517
01:07:44.550 --> 01:07:48.547
The Americans wanted some success and they wanted it.
1518
01:07:48.547 --> 01:07:50.750
It was an Australian white boy.
1519
01:07:50.750 --> 01:07:52.680
It wasn't some guy from the middle east
1520
01:07:52.680 --> 01:07:53.800
that they had shafted.
1521
01:07:53.800 --> 01:07:56.933
The only guy they had was the driver for Osama Bin Laden.
1522
01:07:57.808 --> 01:08:00.141
(chuckles)
1523
01:08:02.500 --> 01:08:05.543
They didn't prosecute the drivers in Nuremberg.
1524
01:08:06.480 --> 01:08:07.950
This is just rubbish.
1525
01:08:07.950 --> 01:08:12.950
And there was obviously this attraction to David Hicks
1526
01:08:12.950 --> 01:08:16.230
essentially certifying that these were legitimate tribunals.
1527
01:08:16.230 --> 01:08:17.653
He's had proper defenses.
1528
01:08:18.939 --> 01:08:20.393
He's had proper lawyers.
1529
01:08:21.750 --> 01:08:26.750
And yeah, there was another thing I fell out with Mori over
1530
01:08:27.000 --> 01:08:30.380
because we knew that David Hicks had been taken out
1531
01:08:30.380 --> 01:08:32.270
to one of the ships out in the Indian Ocean,
1532
01:08:32.270 --> 01:08:34.550
the Pilou I think it was.
1533
01:08:34.550 --> 01:08:38.680
But then we also knew, and this is now publicly being told,
1534
01:08:38.680 --> 01:08:41.460
that he was taken off the ship, flown back onto land
1535
01:08:41.460 --> 01:08:44.790
and beaten on several occasions.
1536
01:08:44.790 --> 01:08:45.623
By Americans?
1537
01:08:45.623 --> 01:08:47.330
By Americans.
1538
01:08:47.330 --> 01:08:48.304
And this came out-
1539
01:08:48.304 --> 01:08:49.836
Before he went to Guantanamo.
1540
01:08:49.836 --> 01:08:51.950
Before he went to Guantanamo.
1541
01:08:51.950 --> 01:08:53.140
And I don't know whether you understand
1542
01:08:53.140 --> 01:08:53.973
the significance of that,
1543
01:08:53.973 --> 01:08:58.290
but the significance is an American ship is American soil.
1544
01:08:58.290 --> 01:09:00.420
And if you're assaulted on an American ship,
1545
01:09:00.420 --> 01:09:03.190
you can take action in an American court.
1546
01:09:03.190 --> 01:09:05.760
But if they fly you out of there,
1547
01:09:05.760 --> 01:09:08.310
and this stuff became more significant to me
1548
01:09:08.310 --> 01:09:10.438
after the revelations of that brigade
1549
01:09:10.438 --> 01:09:12.520
and in that brigade who got prosecuted?
1550
01:09:12.520 --> 01:09:14.220
Did they prosecute the Generals?
1551
01:09:14.220 --> 01:09:15.240
No, no.
1552
01:09:15.240 --> 01:09:17.143
The cell guard got prosecuted.
1553
01:09:18.220 --> 01:09:19.053
Were was he taken
1554
01:09:19.053 --> 01:09:20.260
when he was taken off the ship?
1555
01:09:20.260 --> 01:09:21.350
He didn't know.
1556
01:09:21.350 --> 01:09:24.170
All he could tell was probably he went to an airfield,
1557
01:09:24.170 --> 01:09:26.260
the echoes, because they were blindfolded.
1558
01:09:26.260 --> 01:09:27.183
There was a number of them
1559
01:09:27.183 --> 01:09:28.980
and I'm not sure he knew how many there were.
1560
01:09:28.980 --> 01:09:30.497
And they would be kicked and beaten
1561
01:09:30.497 --> 01:09:32.460
and those people walked up and down the line,
1562
01:09:32.460 --> 01:09:36.980
you could hear them thumping and kicking and doing that.
1563
01:09:36.980 --> 01:09:40.950
And we knew that that had happened and he had reported it
1564
01:09:40.950 --> 01:09:44.200
to the Red Cross and it would have been documented.
1565
01:09:44.200 --> 01:09:49.170
Now the significance of that was that he's on a ship.
1566
01:09:49.170 --> 01:09:52.970
The ship is headed by a captain who's quite high up
1567
01:09:52.970 --> 01:09:55.320
in the military rankings.
1568
01:09:55.320 --> 01:09:58.370
To take a prisoner, it's not like taking him out of the cell
1569
01:09:58.370 --> 01:09:59.530
beating him there.
1570
01:09:59.530 --> 01:10:02.760
To enable the transfer of a number of prisoners
1571
01:10:02.760 --> 01:10:05.840
onto a helicopter back into land to be beaten,
1572
01:10:05.840 --> 01:10:09.270
someone has given an order for that to occur
1573
01:10:09.270 --> 01:10:10.700
and there would be documents.
1574
01:10:10.700 --> 01:10:13.250
And we knew the dates because we were able to tie it
1575
01:10:13.250 --> 01:10:16.110
to when the Australians had visited him on that same ship.
1576
01:10:16.110 --> 01:10:18.070
So he knew that within, I can't remember,
1577
01:10:18.070 --> 01:10:20.520
a couple of days before the Australians turned up
1578
01:10:21.490 --> 01:10:24.880
or a couple of days after, that, so we had the date
1579
01:10:24.880 --> 01:10:28.170
and we all needed was then to look at the aircraft movement
1580
01:10:28.170 --> 01:10:31.923
of who went where and to get that documentary record,
1581
01:10:33.000 --> 01:10:35.700
which I can never get Mori to show any interest in
1582
01:10:35.700 --> 01:10:38.180
start subpoenaing those documents.
1583
01:10:38.180 --> 01:10:41.060
Because that meant that if you've got a captain of the ship,
1584
01:10:41.060 --> 01:10:43.120
obviously it wouldn't have been the captain's decision
1585
01:10:43.120 --> 01:10:44.070
to do that.
1586
01:10:44.070 --> 01:10:45.300
It would have been someone above him.
1587
01:10:45.300 --> 01:10:46.950
So now you're talking generals.
1588
01:10:46.950 --> 01:10:50.620
So some general gave that order for that to occur,
1589
01:10:50.620 --> 01:10:51.670
and that's where I was looking for.
1590
01:10:51.670 --> 01:10:53.970
I was looking for the general.
1591
01:10:53.970 --> 01:10:55.450
Why would Mori be interested
1592
01:10:55.450 --> 01:10:57.060
in that information?
1593
01:10:57.060 --> 01:10:57.910
I have no idea.
1594
01:10:59.210 --> 01:11:01.600
He wrote a couple of letters asking for the documents,
1595
01:11:01.600 --> 01:11:03.560
never got them and that was about the end of it.
1596
01:11:03.560 --> 01:11:05.960
But I always felt that that was a significant part
1597
01:11:05.960 --> 01:11:09.070
of David's defense, that we could use that
1598
01:11:09.070 --> 01:11:13.060
to, again, leverage a reasonable outcome for him
1599
01:11:13.910 --> 01:11:17.740
And so since David ultimately signed
1600
01:11:17.740 --> 01:11:18.753
to something that.
1601
01:11:19.670 --> 01:11:21.220
Well, there was a little more to it too.
1602
01:11:21.220 --> 01:11:22.590
I don't know if you know what happened to me
1603
01:11:22.590 --> 01:11:23.757
in the end of the day.
1604
01:11:24.810 --> 01:11:28.630
Sometime after I'd had all a number of arguments
1605
01:11:28.630 --> 01:11:31.370
with Trytell and Mori,
1606
01:11:31.370 --> 01:11:34.410
I mean, my relationship was quite poor with them.
1607
01:11:34.410 --> 01:11:38.760
And I had a phone call from Trytell
1608
01:11:38.760 --> 01:11:43.760
to say that the Australian government would not negotiate
1609
01:11:43.940 --> 01:11:47.290
on David Hicks's release whilst I was a member of the team
1610
01:11:47.290 --> 01:11:48.840
because they didn't respect me.
1611
01:11:49.860 --> 01:11:50.693
Could they meaning the-
1612
01:11:50.693 --> 01:11:52.190
The Australian government.
1613
01:11:52.190 --> 01:11:53.090
I said, well, no.
1614
01:11:53.090 --> 01:11:54.870
They don't respect me, they hate my guts.
1615
01:11:54.870 --> 01:11:56.093
But that's fine.
1616
01:11:57.260 --> 01:12:02.020
And so they wanted me to stand aside and I said,
1617
01:12:02.020 --> 01:12:04.770
look, you know, no, actually they didn't put it that way.
1618
01:12:04.770 --> 01:12:05.670
They didn't want me to stand aside,
1619
01:12:05.670 --> 01:12:07.960
they wanted me to find someone else to assist
1620
01:12:07.960 --> 01:12:09.960
in the negotiation for the Australian government.
1621
01:12:09.960 --> 01:12:11.420
And I was quite prepared to do that.
1622
01:12:11.420 --> 01:12:15.310
And there were some very senior well-connected people
1623
01:12:15.310 --> 01:12:18.720
on the Liberal Party side who were lawyers
1624
01:12:18.720 --> 01:12:21.030
but were seen as supporters of the Liberal Party
1625
01:12:21.030 --> 01:12:24.510
that I knew were supporters of what I was doing
1626
01:12:24.510 --> 01:12:26.300
because they realized it was wrong
1627
01:12:26.300 --> 01:12:28.220
and would have been prepared to do it.
1628
01:12:28.220 --> 01:12:31.410
And so I recommended these people,
1629
01:12:31.410 --> 01:12:34.290
but then it became clear that they wanted me to actually,
1630
01:12:34.290 --> 01:12:35.490
they were gonna sack me.
1631
01:12:36.710 --> 01:12:37.567
And I said, well, I'm not gonna do that
1632
01:12:37.567 --> 01:12:39.280
unless I talked to David.
1633
01:12:39.280 --> 01:12:40.770
And the next day they simply sent me
1634
01:12:40.770 --> 01:12:42.330
a signed authority from David,
1635
01:12:42.330 --> 01:12:46.020
which had obviously had some weeks before and saying
1636
01:12:46.020 --> 01:12:48.520
your services are no longer required.
1637
01:12:48.520 --> 01:12:49.500
And-
Do you know why David
1638
01:12:49.500 --> 01:12:50.333
signed that?
1639
01:12:51.170 --> 01:12:52.120
Yes, quite clearly.
1640
01:12:52.120 --> 01:12:55.460
They told him that he didn't need me,
1641
01:12:55.460 --> 01:12:56.780
that I wasn't doing any good.
1642
01:12:56.780 --> 01:12:58.540
I was holding up his case.
1643
01:12:58.540 --> 01:13:01.010
I'm not sure what they told him,
1644
01:13:01.010 --> 01:13:04.680
but I don't blame David for a moment on that.
1645
01:13:04.680 --> 01:13:06.457
But in fact, what actually happened,
1646
01:13:06.457 --> 01:13:09.320
I'm now told through political connections
1647
01:13:09.320 --> 01:13:12.120
is at that stage we were facing
1648
01:13:12.120 --> 01:13:14.860
a federal election in Australia.
1649
01:13:14.860 --> 01:13:17.920
The polling was showing that the David Hicks issue
1650
01:13:17.920 --> 01:13:22.413
had a 2 to 3% vote changing position.
1651
01:13:23.570 --> 01:13:26.700
And that the Howard government were under pressure
1652
01:13:26.700 --> 01:13:28.100
and looked like they might lose the election.
1653
01:13:28.100 --> 01:13:31.760
They ultimately did, but Howard knew that he needed
1654
01:13:31.760 --> 01:13:33.930
to fix the Hicks problem.
1655
01:13:33.930 --> 01:13:38.534
And I'm told that I was seen by Howard personally
1656
01:13:38.534 --> 01:13:39.420
as a problem?
1657
01:13:39.420 --> 01:13:40.970
He was quite right
1658
01:13:40.970 --> 01:13:41.803
I mean, this I doubt,
1659
01:13:41.803 --> 01:13:42.636
I was the problem.
You were the problem
1660
01:13:42.636 --> 01:13:44.360
because you wouldn't support?
1661
01:13:44.360 --> 01:13:46.480
Because I wouldn't support a guilty plea.
1662
01:13:46.480 --> 01:13:48.090
I was prepared to fight.
1663
01:13:48.090 --> 01:13:50.440
Well, David was capable of doing that.
1664
01:13:50.440 --> 01:13:54.290
I mean, every lawyer is faced many times in their career
1665
01:13:54.290 --> 01:13:56.110
with an option with their client.
1666
01:13:56.110 --> 01:13:57.480
If you're doing criminal law,
1667
01:13:57.480 --> 01:13:59.490
pleading guilty to a crime that they didn't actually do
1668
01:13:59.490 --> 01:14:02.380
because the penalty is going to be less
1669
01:14:02.380 --> 01:14:05.170
than actually fighting it and the risk is a lot less
1670
01:14:05.170 --> 01:14:06.230
of doing a deal.
1671
01:14:06.230 --> 01:14:08.270
And so you have to compromise,
1672
01:14:08.270 --> 01:14:10.290
even though occasionally you have clients
1673
01:14:10.290 --> 01:14:12.600
who actually do believe that they're totally innocent.
1674
01:14:12.600 --> 01:14:15.260
And ultimately I of course would have been sensible
1675
01:14:15.260 --> 01:14:16.093
and reasonable about it.
1676
01:14:16.093 --> 01:14:17.313
I wasn't there.
1677
01:14:17.313 --> 01:14:20.320
I was only there as long David was able to cope
1678
01:14:20.320 --> 01:14:22.300
with the pressure that was being put on,
1679
01:14:22.300 --> 01:14:23.950
because I believe ultimately they would have had
1680
01:14:23.950 --> 01:14:25.480
to release him.
1681
01:14:25.480 --> 01:14:29.500
But I'm told that Howard had issued the order
1682
01:14:29.500 --> 01:14:34.500
that they had to get him back here before the election,
1683
01:14:34.710 --> 01:14:37.590
and I was seen as a stumbling block to that.
1684
01:14:37.590 --> 01:14:39.760
And the other problem was that once he came back here,
1685
01:14:39.760 --> 01:14:42.670
that I would then of course throw a very large party
1686
01:14:42.670 --> 01:14:44.080
and there would be a lot of celebrating.
1687
01:14:44.080 --> 01:14:44.927
And it would look, you know,
1688
01:14:44.927 --> 01:14:47.590
and I would say very unkind things about Mr. Howard,
1689
01:14:47.590 --> 01:14:49.220
which of course I would have.
1690
01:14:49.220 --> 01:14:52.170
So John Howard was a very very astute politician
1691
01:14:52.170 --> 01:14:54.340
and he was right in all of those counts.
1692
01:14:54.340 --> 01:14:56.650
So I was told that.
1693
01:14:56.650 --> 01:14:58.277
I knew at the time it was political
1694
01:14:58.277 --> 01:14:59.553
of the Australian government.
1695
01:14:59.553 --> 01:15:02.020
They didn't respect me. (chuckles)
1696
01:15:02.020 --> 01:15:02.853
They hated me.
1697
01:15:02.853 --> 01:15:03.903
It wasn't a matter of respect.
1698
01:15:05.280 --> 01:15:07.270
I was actively disliked.
1699
01:15:07.270 --> 01:15:09.225
How did you feel about being removed
1700
01:15:09.225 --> 01:15:10.450
from the (indistinct)?
1701
01:15:10.450 --> 01:15:11.730
I was very concerned about it.
1702
01:15:11.730 --> 01:15:12.820
I was very upset.
1703
01:15:12.820 --> 01:15:17.730
I felt that David was then in a very risky position,
1704
01:15:17.730 --> 01:15:21.563
not having what I thought was an independent voice.
1705
01:15:23.050 --> 01:15:28.050
But they then came and appointed a guy called David McCloud
1706
01:15:28.220 --> 01:15:29.520
(cough)
1707
01:15:29.520 --> 01:15:32.200
from Adelaide to represent him.
1708
01:15:32.200 --> 01:15:34.850
Now, David McCloud,
1709
01:15:34.850 --> 01:15:36.850
so you understand the politics of Australia,
1710
01:15:36.850 --> 01:15:39.530
is a member of the Liberal Party.
1711
01:15:39.530 --> 01:15:44.040
He was a member of Downer's own political branch.
1712
01:15:44.040 --> 01:15:46.720
And Alexander Downer was the Foreign Minister at that stage
1713
01:15:46.720 --> 01:15:47.700
who particularly disliked me.
1714
01:15:47.700 --> 01:15:52.700
And people have reported back to me what he'd said about me,
1715
01:15:53.875 --> 01:15:55.912
and there was a lot of swear words in there.
1716
01:15:55.912 --> 01:15:58.183
And if somebody reported back,
1717
01:15:58.183 --> 01:16:00.963
what I'd said about Downer was probably much the same.
1718
01:16:03.263 --> 01:16:07.380
And McCloud was I a reservist.
1719
01:16:07.380 --> 01:16:10.050
And I think it was a captain in the military reserves
1720
01:16:10.050 --> 01:16:13.210
here in Australia, but he's a good lawyer.
1721
01:16:13.210 --> 01:16:15.700
And I wasn't so concerned.
1722
01:16:15.700 --> 01:16:19.560
I was quite concerned initially that they appointed him.
1723
01:16:19.560 --> 01:16:20.393
Thank you.
1724
01:16:20.393 --> 01:16:23.883
But ultimately he was, I think, a good choice.
1725
01:16:27.080 --> 01:16:29.368
Did you speak to the parents of David Hick
1726
01:16:29.368 --> 01:16:32.180
and were you willing to just, you had no choice.
1727
01:16:32.180 --> 01:16:33.703
You went to just go on?
1728
01:16:34.570 --> 01:16:37.290
Mori and Trytell told me not to talk
1729
01:16:37.290 --> 01:16:39.913
to David's parents about that.
1730
01:16:39.913 --> 01:16:41.180
I was banned from that.
1731
01:16:41.180 --> 01:16:43.160
I completely ignored that I had a very Frank
1732
01:16:43.160 --> 01:16:45.453
and open discussion with him about it.
1733
01:16:47.000 --> 01:16:51.563
But the reality was that if I made some big fuss about it,
1734
01:16:52.540 --> 01:16:56.603
that I would do more damage to David than anything.
1735
01:16:57.670 --> 01:16:59.880
And so this has been going on for a while.
1736
01:16:59.880 --> 01:17:03.040
And then one day it became public
1737
01:17:03.040 --> 01:17:06.100
because one afternoon had three journalists
1738
01:17:06.100 --> 01:17:08.157
from different outlets ring me up to say,
1739
01:17:08.157 --> 01:17:10.373
"Hey, I hear you've been sacked from the Hicks case."
1740
01:17:10.373 --> 01:17:11.383
I went, how'd you find that out?
1741
01:17:11.383 --> 01:17:15.800
They said, "Oh, Prime Minister's Office in Canberra."
1742
01:17:15.800 --> 01:17:19.180
And so they leaked the word
1743
01:17:19.180 --> 01:17:21.540
'cause it obviously wasn't happening fast enough.
1744
01:17:21.540 --> 01:17:22.890
And so I contacted Boyer,
1745
01:17:22.890 --> 01:17:25.300
I went, hey guys, this is about to become public.
1746
01:17:25.300 --> 01:17:27.330
You need to have a strategy to deal with this
1747
01:17:27.330 --> 01:17:29.636
because I'm not gonna say anything.
1748
01:17:29.636 --> 01:17:30.950
We're off the case, end of story,
1749
01:17:30.950 --> 01:17:32.490
as far as I was concerned.
1750
01:17:32.490 --> 01:17:35.010
And it was, it was a large media storm
1751
01:17:35.010 --> 01:17:39.373
generated by the the Australian government essentially.
1752
01:17:40.582 --> 01:17:43.150
And I decided that I would just not say anything.
1753
01:17:43.150 --> 01:17:46.540
I would handover files to McCloud
1754
01:17:46.540 --> 01:17:48.240
and assist him as much as I could.
1755
01:17:50.526 --> 01:17:54.980
And McCloud, I think, did a very good job for David.
1756
01:17:54.980 --> 01:17:58.918
He ran into the same difficulties I had
1757
01:17:58.918 --> 01:18:00.232
with Trytell and Mori,
1758
01:18:00.232 --> 01:18:04.320
and had some very acrimonious views.
1759
01:18:04.320 --> 01:18:05.680
And when he'd go over,
1760
01:18:05.680 --> 01:18:07.060
he'd come back and have lunch with me
1761
01:18:07.060 --> 01:18:10.800
and we'd compare stories about what they told him
1762
01:18:10.800 --> 01:18:11.900
or what had happened to me.
1763
01:18:11.900 --> 01:18:14.690
Do you ever talked to David about this
1764
01:18:14.690 --> 01:18:16.240
once he got out?
1765
01:18:16.240 --> 01:18:17.350
Not directly.
1766
01:18:17.350 --> 01:18:20.250
I's a subject, I've made it very clear to him
1767
01:18:20.250 --> 01:18:25.250
that I believe that he was in a position with no choice
1768
01:18:25.700 --> 01:18:28.870
and I think he made the right decision at the time
1769
01:18:28.870 --> 01:18:30.870
because if he needed to get rid of me to do a deal
1770
01:18:30.870 --> 01:18:31.883
to get out of there,
1771
01:18:32.760 --> 01:18:34.770
then that's an entirely reasonable thing to do.
1772
01:18:34.770 --> 01:18:36.420
I don't have a problem with that.
1773
01:18:37.650 --> 01:18:39.050
But.
1774
01:18:39.050 --> 01:18:40.850
Once you have thought about signing
1775
01:18:40.850 --> 01:18:43.740
a plea agreement under duress,
1776
01:18:43.740 --> 01:18:46.080
would you consider that under duress where you?
1777
01:18:46.080 --> 01:18:47.273
Absolutely.
1778
01:18:47.273 --> 01:18:49.127
At that stage, he's been in Guantanamo Bay for five years
1779
01:18:49.127 --> 01:18:51.900
and a lot of it in solitary confinement.
1780
01:18:51.900 --> 01:18:54.303
Out of sight for a lot longer, you know?
1781
01:18:55.190 --> 01:18:57.800
No, seriously, I mean, I say that jokingly,
1782
01:18:57.800 --> 01:19:00.170
but that was a really serious thing
1783
01:19:00.170 --> 01:19:01.770
for that man's mental health.
1784
01:19:01.770 --> 01:19:06.230
I don't believe, and I saw over the time I was there,
1785
01:19:06.230 --> 01:19:08.760
a deterioration in his mental capacity,
1786
01:19:08.760 --> 01:19:12.823
that his capacity to cope was becoming less and less.
1787
01:19:14.510 --> 01:19:17.433
And certainly with the pressure on him to plead,
1788
01:19:19.610 --> 01:19:22.400
that's duress and there's absolutely no doubt
1789
01:19:23.370 --> 01:19:25.073
that he succumbed to that duress.
1790
01:19:26.350 --> 01:19:28.530
And how did Australia react
1791
01:19:28.530 --> 01:19:30.780
when he finally came home?
1792
01:19:30.780 --> 01:19:32.740
Well, it was a bit of an anticlimax, really.
1793
01:19:32.740 --> 01:19:34.897
There was a great deal of media interest
1794
01:19:34.897 --> 01:19:38.237
and all the secrecy and general carry on to pretend
1795
01:19:38.237 --> 01:19:40.140
he was a dangerous terrorist.
1796
01:19:40.140 --> 01:19:41.300
I mean, look, if it was,
1797
01:19:41.300 --> 01:19:45.200
it was this whole thing that they did
1798
01:19:45.200 --> 01:19:48.230
with Hicks in particular.
1799
01:19:48.230 --> 01:19:51.320
For example, when new guards would come in,
1800
01:19:51.320 --> 01:19:55.867
they would be told that Hicks was a black belt in karate,
1801
01:19:56.940 --> 01:19:58.920
that he could kill you just by looking at you.
1802
01:19:58.920 --> 01:20:01.030
If you went near him, you'd be dead.
1803
01:20:01.030 --> 01:20:01.900
There was all this sort of-
1804
01:20:01.900 --> 01:20:03.990
How do you know the guards were told those?
1805
01:20:03.990 --> 01:20:06.380
Because the guards told David.
1806
01:20:06.380 --> 01:20:08.170
And so they would fear him.
1807
01:20:08.170 --> 01:20:10.317
And then after a while I realized he's just an ordinary guy
1808
01:20:10.317 --> 01:20:12.800
and actually he doesn't have a black belt in karate,
1809
01:20:12.800 --> 01:20:15.770
and no, he never killed anybody
1810
01:20:15.770 --> 01:20:17.970
and doesn't know how to kill anyone, really.
1811
01:20:19.040 --> 01:20:20.410
And it would change.
1812
01:20:20.410 --> 01:20:22.960
And it was that they did this rotation of guards
1813
01:20:22.960 --> 01:20:26.100
so that, you know, and they quite properly do it
1814
01:20:26.100 --> 01:20:28.430
so they don't ever become friendly with the prisoners,
1815
01:20:28.430 --> 01:20:29.480
do it like normal jails.
1816
01:20:29.480 --> 01:20:33.770
But they very clearly realized that David was just bored.
1817
01:20:33.770 --> 01:20:37.170
He was an ordinary bloke who was on search
1818
01:20:37.170 --> 01:20:39.830
for a bit of adventure and was certainly having
1819
01:20:39.830 --> 01:20:40.980
a very fun adventure.
1820
01:20:40.980 --> 01:20:42.150
It was a very interesting time,
1821
01:20:42.150 --> 01:20:46.760
but he was no intention of killing anyone.
1822
01:20:46.760 --> 01:20:50.060
And one of the Australian ministers came out here
1823
01:20:50.060 --> 01:20:54.090
and said that he was one of the 10 most dangerous men
1824
01:20:54.090 --> 01:20:55.490
in the world.
1825
01:20:55.490 --> 01:20:57.490
And I responded to the press by saying,
1826
01:20:57.490 --> 01:20:59.570
well, the world must be a very safe place if David Hicks
1827
01:20:59.570 --> 01:21:02.559
is in the top 10. (laughs)
1828
01:21:02.559 --> 01:21:04.630
That was the sort of atmosphere
1829
01:21:04.630 --> 01:21:06.110
the Australian government were creating.
1830
01:21:06.110 --> 01:21:07.280
I've no doubt directed from the U.S.
1831
01:21:07.280 --> 01:21:11.010
and they were very willing participants
1832
01:21:11.010 --> 01:21:12.460
in his incarceration.
1833
01:21:12.460 --> 01:21:15.020
But it does show, I mean, this whole thing just shows
1834
01:21:15.020 --> 01:21:18.870
the political nature of Guantanamo Bay that you have.
1835
01:21:18.870 --> 01:21:21.120
I mean, the British, we thought David would be going home
1836
01:21:21.120 --> 01:21:22.220
when the Brits went.
1837
01:21:22.220 --> 01:21:23.610
We thought that the Australian government
1838
01:21:23.610 --> 01:21:27.310
would no longer stand it, but we'd underestimated how
1839
01:21:27.310 --> 01:21:29.763
to capacity to suck up to George Bush,
1840
01:21:30.903 --> 01:21:33.873
and that was really disappointing, I might say that.
1841
01:21:36.280 --> 01:21:38.540
There's a few little bits in there
1842
01:21:38.540 --> 01:21:41.500
that Howard was actually in the United States
1843
01:21:41.500 --> 01:21:42.760
on September 11.
1844
01:21:42.760 --> 01:21:44.980
On that morning he was due to address
1845
01:21:44.980 --> 01:21:47.243
a joint session of the Congress.
1846
01:21:48.940 --> 01:21:51.220
And so he was across the road in a hotel
1847
01:21:51.220 --> 01:21:52.680
from the White House.
1848
01:21:52.680 --> 01:21:55.160
Now, after September 11th happened,
1849
01:21:55.160 --> 01:21:57.730
George, he had to get back to Australia.
1850
01:21:57.730 --> 01:22:00.860
I mean, they flew the Bin Ladens around America,
1851
01:22:00.860 --> 01:22:02.950
but Howard, the Prime Minister of Australia,
1852
01:22:02.950 --> 01:22:05.550
couldn't get on an Australian military jet
1853
01:22:05.550 --> 01:22:06.710
and fly back to Australia.
1854
01:22:06.710 --> 01:22:08.460
He was stuck in there.
1855
01:22:08.460 --> 01:22:10.220
And it wasn't until after he got back
1856
01:22:10.220 --> 01:22:13.260
and about a week later that he finally got a phone call
1857
01:22:13.260 --> 01:22:15.880
from George Bush, who's that stage
1858
01:22:15.880 --> 01:22:18.030
rounding up the coalition of the willing.
1859
01:22:18.030 --> 01:22:21.060
And Howard then really went out of his way
1860
01:22:21.060 --> 01:22:24.380
to be the number one supporter of Bush,
1861
01:22:24.380 --> 01:22:26.880
which has seen us take a lead role
1862
01:22:26.880 --> 01:22:30.570
in Afghanistan and in Iraq.
1863
01:22:30.570 --> 01:22:33.640
Places, you know, maybe Afghanistan's understandable
1864
01:22:33.640 --> 01:22:35.960
considering what happened, but Iraq?
1865
01:22:35.960 --> 01:22:36.970
Why were we there?
1866
01:22:36.970 --> 01:22:38.470
And you think if Howard
1867
01:22:38.470 --> 01:22:40.370
had been a different type of president
1868
01:22:40.370 --> 01:22:42.780
or a different opinion about this
1869
01:22:42.780 --> 01:22:44.230
Hicks would have been released?
1870
01:22:44.230 --> 01:22:45.620
Correct.
1871
01:22:45.620 --> 01:22:48.360
If he had been Blair standing up for some principle
1872
01:22:48.360 --> 01:22:51.940
and some right, and I might say it wasn't just Howard,
1873
01:22:51.940 --> 01:22:54.220
It was also Ruddock, his Attorney General
1874
01:22:54.220 --> 01:22:56.750
who was extreme right wing,
1875
01:22:56.750 --> 01:22:57.720
and it was Downer.
1876
01:22:57.720 --> 01:23:00.330
I mean, they were all hitching their wagon
1877
01:23:00.330 --> 01:23:04.950
to the U.S. star, which brought Howard lot of kudos.
1878
01:23:04.950 --> 01:23:09.580
George Bush turned out here in Australia later on
1879
01:23:09.580 --> 01:23:11.860
and addressed the joint houses of parliament
1880
01:23:11.860 --> 01:23:16.540
in which Habib was still in jail at that stage.
1881
01:23:16.540 --> 01:23:19.290
And I was there because the Greens invited myself
1882
01:23:19.290 --> 01:23:22.880
and Habib's family to be their guests for the day.
1883
01:23:22.880 --> 01:23:25.510
And Habib's son stood up and abused George Bush
1884
01:23:25.510 --> 01:23:29.400
and got carded out for it as well, so.
1885
01:23:29.400 --> 01:23:30.670
I think that that's crazy.
1886
01:23:30.670 --> 01:23:31.600
I'm gonna stop.
1887
01:23:31.600 --> 01:23:33.467
Did you have any questions (indistinct)?
1888
01:23:37.718 --> 01:23:42.718
Generally most of the lawyers said that they felt
1889
01:23:43.360 --> 01:23:46.440
that they were not getting adequate information
1890
01:23:46.440 --> 01:23:48.200
from the U.S. government,
1891
01:23:48.200 --> 01:23:49.390
but I'm not hearing that.
1892
01:23:49.390 --> 01:23:50.830
Letters were redacted.
1893
01:23:50.830 --> 01:23:53.740
They had trouble acquiring information.
1894
01:23:53.740 --> 01:23:55.463
Was that also the case here?
1895
01:23:57.720 --> 01:23:58.940
The issue of getting information
1896
01:23:58.940 --> 01:24:00.760
out of the U.S. government I think is highlighted
1897
01:24:00.760 --> 01:24:04.860
by the lack of capacity to get anything about the Pilou,
1898
01:24:04.860 --> 01:24:07.090
which, I mean, the expectation of getting
1899
01:24:07.090 --> 01:24:10.170
any other information, there was just no,
1900
01:24:10.170 --> 01:24:12.410
I perhaps had no expectation because I realized
1901
01:24:12.410 --> 01:24:13.860
we were not going to get any.
1902
01:24:14.720 --> 01:24:16.600
And so it was pointless.
1903
01:24:16.600 --> 01:24:18.820
And we were very much at the forefront
1904
01:24:18.820 --> 01:24:19.720
of what was happening.
1905
01:24:19.720 --> 01:24:21.420
All the lawyers that came later,
1906
01:24:21.420 --> 01:24:23.000
there were systems in place for it.
1907
01:24:23.000 --> 01:24:26.210
There was nothing when we started, there was no system.
1908
01:24:26.210 --> 01:24:28.450
There was no escort.
1909
01:24:28.450 --> 01:24:30.830
They're all kept out on the other side of the island,
1910
01:24:30.830 --> 01:24:32.300
escorted everywhere they went to
1911
01:24:32.300 --> 01:24:33.800
within an inch of their lives.
1912
01:24:35.070 --> 01:24:38.810
But the same was with the process and procedure.
1913
01:24:38.810 --> 01:24:40.350
Quite frankly, the Americans really didn't have
1914
01:24:40.350 --> 01:24:41.380
terribly much.
1915
01:24:41.380 --> 01:24:43.250
I had no expectation of getting anything
1916
01:24:43.250 --> 01:24:45.920
because what I saw was in such poor quality
1917
01:24:45.920 --> 01:24:48.690
that I couldn't believe that they really had anything else.
1918
01:24:48.690 --> 01:24:50.440
Did the Australians share
1919
01:24:50.440 --> 01:24:51.310
what they had gotten?
1920
01:24:51.310 --> 01:24:52.900
You said that you did a very good job
1921
01:24:52.900 --> 01:24:53.960
on their own investigation.
1922
01:24:53.960 --> 01:24:55.917
They shared that with the Americans (indistinct) use it?
1923
01:24:55.917 --> 01:24:57.610
They gave it to the Americans,
1924
01:24:57.610 --> 01:24:59.760
and that's what the Americans would use to get stakes.
1925
01:24:59.760 --> 01:25:00.593
Really?
Yeah.
1926
01:25:00.593 --> 01:25:02.483
We got that stuff from the Americans.
1927
01:25:03.940 --> 01:25:06.980
Yeah, they got in there and interviewed Hicks
1928
01:25:06.980 --> 01:25:09.420
and took a very long and detailed statement from him
1929
01:25:09.420 --> 01:25:11.490
of good quality.
1930
01:25:11.490 --> 01:25:13.400
Mind you, that was after Hicks had a little treatment
1931
01:25:13.400 --> 01:25:16.400
and that was after his trips off the Pilou.
1932
01:25:16.400 --> 01:25:18.120
So he was prepared to talk.
1933
01:25:18.120 --> 01:25:19.280
Did the Australian government
1934
01:25:19.280 --> 01:25:21.450
interrogated Hicks and got better information
1935
01:25:21.450 --> 01:25:23.664
than the U.S interrogators?
1936
01:25:23.664 --> 01:25:24.760
Oh, absolutely.
1937
01:25:24.760 --> 01:25:27.919
And I think it was just a question of the quality
1938
01:25:27.919 --> 01:25:30.877
of the individuals involved in the matter.
1939
01:25:30.877 --> 01:25:33.990
The Australian Federal Police put on
1940
01:25:34.830 --> 01:25:37.420
an excellent person on it.
1941
01:25:37.420 --> 01:25:41.320
He was a person who previously worked in Adelaide
1942
01:25:41.320 --> 01:25:46.320
and was considered to be a very senior capable person.
1943
01:25:48.500 --> 01:25:49.683
Second question.
1944
01:25:50.670 --> 01:25:53.200
Did he experience any personal threats
1945
01:25:53.200 --> 01:25:57.600
or professional fallout because of his his participation
1946
01:25:59.240 --> 01:26:00.523
in the David Hicks case?
1947
01:26:01.740 --> 01:26:04.000
Only twice
1948
01:26:04.000 --> 01:26:07.910
Once when I'd made a point of pointing out
1949
01:26:07.910 --> 01:26:12.910
that I thought the military should take a greater interest
1950
01:26:14.130 --> 01:26:16.810
in the David Hicks case,
1951
01:26:16.810 --> 01:26:21.690
because they might care to realize the implications
1952
01:26:21.690 --> 01:26:23.963
for their service men and women.
1953
01:26:24.950 --> 01:26:29.950
That if this was how the Geneva Convention
1954
01:26:29.980 --> 01:26:34.480
was being treated, that they need to understand that
1955
01:26:34.480 --> 01:26:37.960
if America interprets the Geneva Convention in this way,
1956
01:26:37.960 --> 01:26:42.200
our ally of the highest standing,
1957
01:26:42.200 --> 01:26:45.180
one of the leading democratic countries in the world,
1958
01:26:45.180 --> 01:26:48.100
how did they expect other countries
1959
01:26:48.100 --> 01:26:50.810
that we may go to war with in the future?
1960
01:26:50.810 --> 01:26:51.670
What standard?
1961
01:26:51.670 --> 01:26:54.210
Did they want the Guantanamo Bay standard
1962
01:26:54.210 --> 01:26:57.690
or did they really want the Geneva Convention?
1963
01:26:57.690 --> 01:26:59.828
And some bloke rang up while and abused me
1964
01:26:59.828 --> 01:27:01.760
but I didn't know what he was talking about.
1965
01:27:01.760 --> 01:27:03.510
But there's a longer story in there.
1966
01:27:03.510 --> 01:27:06.650
I addressed a military convention
1967
01:27:07.890 --> 01:27:10.460
and copped some serious flack about why would I bother
1968
01:27:10.460 --> 01:27:14.040
about a terrorist like Hicks from a woman dressed in blue.
1969
01:27:14.040 --> 01:27:15.490
So she was obviously in the air force
1970
01:27:15.490 --> 01:27:17.560
with lots of things on her shoulder.
1971
01:27:17.560 --> 01:27:21.380
And I go, ma'am, you're in the air force aren't you?
1972
01:27:21.380 --> 01:27:22.250
She went, "Yes I am."
1973
01:27:22.250 --> 01:27:25.550
And I went, and your job is to send
1974
01:27:25.550 --> 01:27:28.660
young Australian men and women in airplanes,
1975
01:27:28.660 --> 01:27:33.660
and they go over to other countries and they drop bombs.
1976
01:27:34.010 --> 01:27:39.010
And sometimes those bombs when they fall out
1977
01:27:39.640 --> 01:27:42.837
they cause collateral damage as well.
1978
01:27:42.837 --> 01:27:44.217
"What's it going to do with it?"
1979
01:27:44.217 --> 01:27:48.010
And I went, well, sometimes when they go over
1980
01:27:48.010 --> 01:27:50.500
to these other countries and they drop bombs
1981
01:27:50.500 --> 01:27:53.280
and they cause collateral damage,
1982
01:27:53.280 --> 01:27:56.780
sometimes those other countries shoot back, don't they?
1983
01:27:56.780 --> 01:27:59.450
And sometimes those young Australian men and women
1984
01:27:59.450 --> 01:28:01.730
that you send over there to drop bombs
1985
01:28:01.730 --> 01:28:06.013
that cause collateral damage have to land in that country.
1986
01:28:06.950 --> 01:28:09.000
And when they land in that country,
1987
01:28:09.000 --> 01:28:12.460
would you like the president of that country
1988
01:28:13.350 --> 01:28:16.370
to apply the Guantanamo Bay rules
1989
01:28:16.370 --> 01:28:19.800
to those young Australian men and women
1990
01:28:19.800 --> 01:28:24.220
and have the power of life or death over them
1991
01:28:24.220 --> 01:28:27.950
irrespective of what court in that country may say,
1992
01:28:27.950 --> 01:28:30.400
or would you like the Geneva Convention to apply?
1993
01:28:31.585 --> 01:28:32.622
(laughs)
1994
01:28:32.622 --> 01:28:34.070
(indistinct)
1995
01:28:34.070 --> 01:28:37.120
Yeah, that changed the tone of the discussion
1996
01:28:37.120 --> 01:28:38.560
that went after.
1997
01:28:38.560 --> 01:28:41.180
And they started to see that this was actually
1998
01:28:41.180 --> 01:28:42.160
a bit of a problem.
1999
01:28:42.160 --> 01:28:43.342
We had heard,
2000
01:28:43.342 --> 01:28:44.530
I wonder if I can really squish,
2001
01:28:44.530 --> 01:28:48.520
we had heard there was an attorney who represented
2002
01:28:48.520 --> 01:28:51.730
some detainees very early on, who did get death threats,
2003
01:28:51.730 --> 01:28:54.750
and this is in America, but you never got any in Australia.
2004
01:28:54.750 --> 01:28:56.933
No, the only other one was quite amusing.
2005
01:28:56.933 --> 01:28:58.550
My aunt had died.
2006
01:28:58.550 --> 01:29:00.260
I had gone to church.
2007
01:29:00.260 --> 01:29:02.530
I had with my son carried her out
2008
01:29:02.530 --> 01:29:05.900
and placed her in the hearse at the end of the service.
2009
01:29:05.900 --> 01:29:07.940
And now we were just standing there and a little old lady,
2010
01:29:07.940 --> 01:29:12.700
about 85 years old, came up and gave me an absolute mouthful
2011
01:29:12.700 --> 01:29:15.420
about why I was acting for that David Hicks.
2012
01:29:15.420 --> 01:29:17.120
I shouldn't be doing that.
2013
01:29:17.120 --> 01:29:20.470
I must say my son and I stood there with our jaws open
2014
01:29:20.470 --> 01:29:23.710
and went, what? (laughs)
2015
01:29:23.710 --> 01:29:25.620
And before I could react, she turned tail
2016
01:29:25.620 --> 01:29:26.690
and just walked off.
2017
01:29:26.690 --> 01:29:29.277
I went to the rows and went, who was that little old lady?
2018
01:29:29.277 --> 01:29:31.470
(laughs)
2019
01:29:31.470 --> 01:29:35.713
But no, I'd never, certainly in Australia,
2020
01:29:35.713 --> 01:29:40.713
I never received any threats, hate mail.
2021
01:29:40.790 --> 01:29:44.580
I received a lot of mail in support
2022
01:29:44.580 --> 01:29:48.640
and a lot of people wrote in supporting.
2023
01:29:48.640 --> 01:29:51.190
Even the guy who wrote to the terrorist lawyer
2024
01:29:51.190 --> 01:29:53.370
had a suggestion that I might try
2025
01:29:53.370 --> 01:29:56.790
a particular tactic or thought.
2026
01:29:56.790 --> 01:29:58.680
So it was, you know,
2027
01:29:58.680 --> 01:30:02.550
I think that there are less nutters in Australia
2028
01:30:02.550 --> 01:30:04.760
and we've got our own, but there's less of them
2029
01:30:04.760 --> 01:30:06.540
because we're a smaller country.
2030
01:30:06.540 --> 01:30:11.540
And so there wasn't that anger.
2031
01:30:11.840 --> 01:30:13.520
And it hadn't, I mean, to be honest,
2032
01:30:13.520 --> 01:30:16.000
September 11 hadn't happened out here,
2033
01:30:16.000 --> 01:30:19.970
and there hadn't been that mass hostility
2034
01:30:19.970 --> 01:30:23.570
to people who were trying to stand up for what was right.
2035
01:30:23.570 --> 01:30:25.090
And I think we also couched out.
2036
01:30:25.090 --> 01:30:29.300
Our whole campaign was couched around this issue
2037
01:30:29.300 --> 01:30:31.640
of giving people a fair go.
2038
01:30:31.640 --> 01:30:33.330
If he's done something wrong, charge him.
2039
01:30:33.330 --> 01:30:34.490
we're happy to defend him.
2040
01:30:34.490 --> 01:30:35.890
If he's guilty, he's guilty.
2041
01:30:37.154 --> 01:30:39.120
And lift it on that level
2042
01:30:39.120 --> 01:30:40.153
that this is what we're talking about,
2043
01:30:40.153 --> 01:30:43.183
we're talking about really getting a fair go.
2044
01:30:45.900 --> 01:30:48.850
Johnny, how long have we been going?
2045
01:30:48.850 --> 01:30:50.927
One hour and 34 minutes.
2046
01:30:50.927 --> 01:30:51.760
Okay.
2047
01:30:51.760 --> 01:30:52.830
Are you okay to go on a little bit?
2048
01:30:52.830 --> 01:30:53.860
Do you wanna take a break?
Sure.
2049
01:30:53.860 --> 01:30:54.693
'Cause I-
How are you going?
2050
01:30:54.693 --> 01:30:55.790
You want a break?
2051
01:30:55.790 --> 01:30:56.623
I'm okay.
2052
01:30:56.623 --> 01:30:57.456
It's up to you.
2053
01:30:57.456 --> 01:30:58.501
You're the one talking.
2054
01:30:58.501 --> 01:30:59.767
All right, I'll have a five-minute break.
2055
01:30:59.767 --> 01:31:01.980
Okay, let's take a five-minute break, okay.
2056
01:31:01.980 --> 01:31:03.010
Rolling.
2057
01:31:03.010 --> 01:31:04.750
Okay, is there anything else
2058
01:31:04.750 --> 01:31:08.070
about the Hicks case that maybe I didn't ask
2059
01:31:08.070 --> 01:31:11.120
that you think you might wanna share with us?
2060
01:31:11.120 --> 01:31:15.390
And then I have a few more questions about Hicks as well.
2061
01:31:15.390 --> 01:31:17.350
And maybe I can ask those, but.
2062
01:31:17.350 --> 01:31:19.260
Yeah, I don't think.
2063
01:31:19.260 --> 01:31:20.160
I think we've covered most of it.
2064
01:31:20.160 --> 01:31:22.290
There's a probably a million other smaller stories
2065
01:31:22.290 --> 01:31:25.180
that we could fit in there.
2066
01:31:25.180 --> 01:31:30.180
One of the things was, though, that I certainly felt closer
2067
01:31:30.740 --> 01:31:34.130
to the British lawyers and their views
2068
01:31:34.130 --> 01:31:36.440
than the American lawyers.
2069
01:31:36.440 --> 01:31:38.490
I can remember I conference in New York
2070
01:31:38.490 --> 01:31:42.730
when we were there and a woman who represented
2071
01:31:42.730 --> 01:31:45.330
the Tipton boys was there as well,
2072
01:31:45.330 --> 01:31:47.000
whose name I've just forgotten.
2073
01:31:47.000 --> 01:31:50.240
Was a very delightful very restrained English lawyer
2074
01:31:50.240 --> 01:31:51.800
who was a complete delight,
2075
01:31:51.800 --> 01:31:56.020
but very much on the same page as where I was coming from
2076
01:31:56.020 --> 01:31:58.153
and Clive as well.
2077
01:31:59.753 --> 01:32:02.760
We were very different in character and style
2078
01:32:02.760 --> 01:32:04.057
to the American lawyers.
2079
01:32:04.057 --> 01:32:06.512
And I think that was just a national thing.
2080
01:32:06.512 --> 01:32:09.260
And a lot of those people really put,
2081
01:32:09.260 --> 01:32:11.750
the Americans put in a lot of effort.
2082
01:32:11.750 --> 01:32:14.940
Particularly the ones who came in on the early days
2083
01:32:14.940 --> 01:32:18.640
made a great effort at a time of great hostility.
2084
01:32:18.640 --> 01:32:23.640
And they were doing it for no real benefit to themselves,
2085
01:32:24.410 --> 01:32:26.203
but there was a great deal of resistance.
2086
01:32:26.203 --> 01:32:31.110
Even when we issued the proceedings in Rasul in Washington,
2087
01:32:31.110 --> 01:32:33.710
it took Michael Ratner a long time
2088
01:32:33.710 --> 01:32:37.130
to find anyone who was willing to simply act as agent
2089
01:32:37.130 --> 01:32:41.180
in Washington for the local filing of the documents.
2090
01:32:41.180 --> 01:32:44.580
And he was quite surprised about the resistance
2091
01:32:44.580 --> 01:32:45.680
that they struck.
2092
01:32:45.680 --> 01:32:49.070
And that resistance really continued up until
2093
01:32:49.070 --> 01:32:51.560
the time we were successful in the Rasul case.
2094
01:32:51.560 --> 01:32:54.080
And after that, it was that then they took
2095
01:32:54.080 --> 01:32:56.322
a whole heap of lawyers in to becoming involved.
2096
01:32:56.322 --> 01:32:59.783
And the attitudes were changing about Guantanamo Bay
2097
01:32:59.783 --> 01:33:00.810
at that time.
2098
01:33:00.810 --> 01:33:02.100
Going back to the beginning,
2099
01:33:02.100 --> 01:33:04.340
as you started in the struggle,
2100
01:33:04.340 --> 01:33:08.530
did your opinion about American legal system change?
2101
01:33:08.530 --> 01:33:09.380
Had you had a different opinion
2102
01:33:09.380 --> 01:33:11.430
of the American legal system before 9/11?
2103
01:33:12.880 --> 01:33:14.220
I was probably reasonably ignorant
2104
01:33:14.220 --> 01:33:15.440
to the American legal system
2105
01:33:15.440 --> 01:33:17.877
not having run up against it before.
2106
01:33:17.877 --> 01:33:20.790
And to give you some idea, on the habeas Corpus stuff,
2107
01:33:20.790 --> 01:33:22.830
I'd estimated that we would make...
2108
01:33:22.830 --> 01:33:25.160
In Australia, in such a case,
2109
01:33:25.160 --> 01:33:29.110
we would have been in our high court within three months
2110
01:33:29.110 --> 01:33:31.563
or the outside, absolutely the outside.
2111
01:33:31.563 --> 01:33:34.080
And then the U.S. it was like no one was interested
2112
01:33:34.080 --> 01:33:36.370
in fast-tracking this process at all.
2113
01:33:36.370 --> 01:33:39.530
In fact, they were deliberately delaying it, if anything,
2114
01:33:39.530 --> 01:33:43.990
and it took three years or more to get it up.
2115
01:33:43.990 --> 01:33:46.820
And I was a little surprised about what I saw
2116
01:33:46.820 --> 01:33:51.820
as a major national case being treated in such a manner.
2117
01:33:52.620 --> 01:33:55.270
So I was quite ignorant on it.
2118
01:33:55.270 --> 01:33:57.300
The other thing that that caused me concern
2119
01:33:57.300 --> 01:34:00.960
was that the American lawyers would talk about the judges
2120
01:34:00.960 --> 01:34:03.640
we were coming up and about who had appointed them.
2121
01:34:03.640 --> 01:34:06.490
And that was how that decision would run in accordance with
2122
01:34:06.490 --> 01:34:10.540
whether they were a Republican or a Democrat judge,
2123
01:34:10.540 --> 01:34:13.110
when it's very rare to do that in Australia.
2124
01:34:13.110 --> 01:34:16.230
Even conservative your Liberal Party appointed judges,
2125
01:34:16.230 --> 01:34:17.410
there's no guarantee they'll side
2126
01:34:17.410 --> 01:34:19.560
with the Liberal government if they're in.
2127
01:34:19.560 --> 01:34:21.590
And in fact, it's quite often the opposite.
2128
01:34:21.590 --> 01:34:24.678
You just can't do that.
2129
01:34:24.678 --> 01:34:29.678
One of the cases I ran involved a very strong
2130
01:34:30.350 --> 01:34:32.673
Liberal Party appointment as a judge.
2131
01:34:32.673 --> 01:34:36.680
And he often came down against the government
2132
01:34:36.680 --> 01:34:39.160
and criticized them quite robustly.
2133
01:34:39.160 --> 01:34:43.923
So it wasn't an experience I was familiar with.
2134
01:34:45.060 --> 01:34:47.280
They would look at who was on the panel
2135
01:34:47.280 --> 01:34:48.730
and say, "Oh no, Republican.
2136
01:34:48.730 --> 01:34:50.400
You'll never win."
2137
01:34:50.400 --> 01:34:53.330
And I was like, the independence of judges
2138
01:34:53.330 --> 01:34:55.230
I think is much stronger in Australia.
2139
01:34:56.860 --> 01:34:59.710
And did you have any encounters
2140
01:34:59.710 --> 01:35:04.390
with doctors or psychologists concerning David Hicks?
2141
01:35:04.390 --> 01:35:06.900
Not in the U.S.,
2142
01:35:06.900 --> 01:35:10.440
but I certainly before I left the case
2143
01:35:11.360 --> 01:35:15.410
was working to get an expert in to see David
2144
01:35:15.410 --> 01:35:18.110
to provide an expert's report.
2145
01:35:18.110 --> 01:35:19.790
Did you succeed?
2146
01:35:19.790 --> 01:35:20.623
Not before.
2147
01:35:20.623 --> 01:35:21.470
And I can't remember now
2148
01:35:21.470 --> 01:35:23.010
whether they did ultimately get one.
2149
01:35:23.010 --> 01:35:24.860
I think they did have somebody go,
2150
01:35:24.860 --> 01:35:27.130
but I've never seen the report.
2151
01:35:31.560 --> 01:35:33.730
I guess we can go back to David Hicks
2152
01:35:33.730 --> 01:35:34.930
and we think of something along the way,
2153
01:35:34.930 --> 01:35:39.360
but you had represented the other Australian detainee,
2154
01:35:39.360 --> 01:35:41.020
but I'm not sure to what extent,
2155
01:35:41.020 --> 01:35:44.660
and you had some interaction with Mamdouh Habib,
2156
01:35:44.660 --> 01:35:46.570
and I wondered if you could just tell us
2157
01:35:46.570 --> 01:35:49.187
your interaction with him and something about him.
2158
01:35:50.200 --> 01:35:54.330
Well, my original reaction was really with Stephen Hopper,
2159
01:35:54.330 --> 01:35:59.330
who acted as his lawyer and Habib's wife as well.
2160
01:36:00.550 --> 01:36:02.420
We would occasionally do things together
2161
01:36:02.420 --> 01:36:04.610
or turn up in the same place at the same time
2162
01:36:04.610 --> 01:36:07.490
and we worked together and I spoke to Steve quite a lot
2163
01:36:08.940 --> 01:36:11.030
about the media comments.
2164
01:36:11.030 --> 01:36:13.760
We were doing the lines we were taking,
2165
01:36:13.760 --> 01:36:16.520
and try to a certain degree to coordinate our activities.
2166
01:36:16.520 --> 01:36:18.470
And I got along very well with him
2167
01:36:18.470 --> 01:36:20.780
and didn't have any difficulties.
2168
01:36:20.780 --> 01:36:25.370
I did have some interaction with Habib after he came back,
2169
01:36:25.370 --> 01:36:30.280
because he had asked me to assist another family in Sydney
2170
01:36:30.280 --> 01:36:33.350
whose husband had disappeared in Egypt
2171
01:36:33.350 --> 01:36:38.350
and Habib reported that he'd seen him in prison in Egypt.
2172
01:36:38.528 --> 01:36:41.750
And so I interviewed him and spoke to him
2173
01:36:41.750 --> 01:36:43.880
about his experience in Egypt,
2174
01:36:43.880 --> 01:36:46.553
and what he'd seen and what had happened.
2175
01:36:47.517 --> 01:36:50.140
And over the years, I've kept in touch with him
2176
01:36:50.140 --> 01:36:51.840
from time to time and more recently,
2177
01:36:51.840 --> 01:36:53.070
and this is publicly known,
2178
01:36:53.070 --> 01:36:55.070
because Habib reported in the newspapers
2179
01:36:55.070 --> 01:36:57.290
that he'd asked me to assist him
2180
01:36:57.290 --> 01:37:02.290
in suing the U.S. government over his rendition to Egypt.
2181
01:37:02.420 --> 01:37:04.050
Are you?
2182
01:37:04.050 --> 01:37:08.250
Well, I would if I could is the reality.
2183
01:37:08.250 --> 01:37:13.250
I met with Michael Ratner in New York in January, 2011,
2184
01:37:16.810 --> 01:37:20.830
but the cases that have been run have all lost
2185
01:37:20.830 --> 01:37:22.930
on national security grounds,
2186
01:37:22.930 --> 01:37:26.110
which again, I find astounding.
2187
01:37:26.110 --> 01:37:27.980
That would never happen in Australia.
2188
01:37:27.980 --> 01:37:31.290
Habib is now suing the Australian government here,
2189
01:37:31.290 --> 01:37:32.123
but they Australian government
2190
01:37:32.123 --> 01:37:34.500
are not saying national security 'cause it doesn't exist.
2191
01:37:34.500 --> 01:37:37.330
That defense for the government does not exist.
2192
01:37:37.330 --> 01:37:39.260
But it essentially gives the government
2193
01:37:39.260 --> 01:37:43.060
the capacity to commit murder and mayhem
2194
01:37:43.060 --> 01:37:44.470
with complete immunity.
2195
01:37:44.470 --> 01:37:47.220
I find that quite astounding.
2196
01:37:47.220 --> 01:37:48.853
And reading the cases,
2197
01:37:49.710 --> 01:37:54.170
the willingness of the court to give over
2198
01:37:54.170 --> 01:37:58.310
to this national security interest is, I think,
2199
01:37:58.310 --> 01:38:01.140
a matter that seriously undermines any democratic country
2200
01:38:01.140 --> 01:38:06.140
and perhaps explains why the American Secret Services
2201
01:38:08.150 --> 01:38:09.198
get away with so much
2202
01:38:09.198 --> 01:38:10.670
because they know they can cover it all up
2203
01:38:10.670 --> 01:38:12.240
with national security.
2204
01:38:12.240 --> 01:38:15.223
And I don't think that that's a good thing for democracy.
2205
01:38:16.240 --> 01:38:19.008
Did you ever talk to Stephen Hopper,
2206
01:38:19.008 --> 01:38:21.871
to other lawyers about coordinating your defense
2207
01:38:21.871 --> 01:38:23.890
or was it a deliberate decision to have
2208
01:38:25.170 --> 01:38:27.090
pretty much a separate defense
2209
01:38:27.090 --> 01:38:29.513
for the two Australian detainees?
2210
01:38:30.730 --> 01:38:32.220
Well, they were charged separately,
2211
01:38:32.220 --> 01:38:34.500
and in fact, Habib was never charged
2212
01:38:34.500 --> 01:38:37.440
and that was a real point of contention.
2213
01:38:37.440 --> 01:38:41.760
Habib turned up later than Hicks.
2214
01:38:41.760 --> 01:38:44.550
He was not picked up until much later in Afghanistan.
2215
01:38:44.550 --> 01:38:47.630
And then they had a little side trip for six months or so,
2216
01:38:47.630 --> 01:38:49.910
three months, I'm not sure how long, to Egypt.
2217
01:38:49.910 --> 01:38:52.020
And so it was a year or two into it
2218
01:38:52.020 --> 01:38:54.780
that Habib appeared on the scene.
2219
01:38:54.780 --> 01:38:58.770
And of course, initially we couldn't get any access.
2220
01:38:58.770 --> 01:39:02.020
When I went over to Guantanamo Bay
2221
01:39:02.020 --> 01:39:04.490
I sought access to Habib
2222
01:39:04.490 --> 01:39:06.330
after talking to Stephen Hopper about it.
2223
01:39:06.330 --> 01:39:08.150
I thought I was there, at least try and see him,
2224
01:39:08.150 --> 01:39:09.740
but that was just refused.
2225
01:39:09.740 --> 01:39:12.110
It was just point blankly refused.
2226
01:39:12.110 --> 01:39:14.790
And Hicks had no interest
2227
01:39:14.790 --> 01:39:17.540
in coordinating with Habib either?
2228
01:39:17.540 --> 01:39:19.810
Well, there was apart from being in the same place
2229
01:39:19.810 --> 01:39:21.650
at the same time in terms of their defense
2230
01:39:21.650 --> 01:39:23.840
to any charge in the U.S.,
2231
01:39:23.840 --> 01:39:26.563
there was really no more coordination between those two
2232
01:39:26.563 --> 01:39:27.990
than there would have been
2233
01:39:27.990 --> 01:39:30.160
between anybody else that was there.
2234
01:39:30.160 --> 01:39:34.600
There was no special connection between the two
2235
01:39:34.600 --> 01:39:36.410
that would have made it, I think, useful.
2236
01:39:36.410 --> 01:39:40.050
But certainly in terms of a common goal,
2237
01:39:40.050 --> 01:39:42.850
which was to get them out of Guantanamo Bay
2238
01:39:42.850 --> 01:39:45.417
or if they had committed some offense to have them charged
2239
01:39:45.417 --> 01:39:47.460
and have the opportunity to defend them,
2240
01:39:47.460 --> 01:39:49.610
Hopper and I were working together on that.
2241
01:39:51.030 --> 01:39:52.370
Looking back over this,
2242
01:39:52.370 --> 01:39:56.760
would you say that really it was the political part
2243
01:39:56.760 --> 01:39:59.410
that made all the difference and that the legal system
2244
01:39:59.410 --> 01:40:00.243
just broke down,
2245
01:40:00.243 --> 01:40:02.000
and I don't mean to put words in your mouth,
2246
01:40:02.000 --> 01:40:03.110
but just the way-
Oh, no, no.
2247
01:40:03.110 --> 01:40:05.470
This was never a legal case.
2248
01:40:05.470 --> 01:40:07.990
This was always a political case.
2249
01:40:07.990 --> 01:40:10.460
And we knew that fairly early on.
2250
01:40:10.460 --> 01:40:14.630
I mean, I actually believed naively that the U.S. courts
2251
01:40:14.630 --> 01:40:17.900
would take a serious interest in their government
2252
01:40:17.900 --> 01:40:19.940
taking people beyond the law.
2253
01:40:19.940 --> 01:40:24.180
I just could not believe that an Australian court
2254
01:40:24.180 --> 01:40:27.480
would allow the Australian armed services
2255
01:40:27.480 --> 01:40:29.450
to take people anywhere beyond the law.
2256
01:40:29.450 --> 01:40:31.223
It was just contrary to law.
2257
01:40:33.227 --> 01:40:35.590
And I found that the, you know,
2258
01:40:35.590 --> 01:40:38.350
I believe that the Americans ultimately
2259
01:40:38.350 --> 01:40:40.050
the courts would have to step in.
2260
01:40:40.050 --> 01:40:41.957
If the Supreme Court in Rasul had said,
2261
01:40:41.957 --> 01:40:44.630
"No, this is outside our jurisdiction,"
2262
01:40:44.630 --> 01:40:47.510
they have then handed to the government
2263
01:40:47.510 --> 01:40:50.430
the capacity to do what they like to anyone
2264
01:40:50.430 --> 01:40:52.347
anywhere in the world, and to say,
2265
01:40:52.347 --> 01:40:53.600
"Oh, we wash our hands on it."
2266
01:40:53.600 --> 01:40:54.970
And it means your government
2267
01:40:54.970 --> 01:40:58.120
is then completely unaccountable.
2268
01:40:58.120 --> 01:41:00.950
But it also meant from the Supreme Court's point of view
2269
01:41:00.950 --> 01:41:03.760
they would be seen as a joke in the rest of the world.
2270
01:41:03.760 --> 01:41:07.510
You can't, I mean, this is dictatorship country
2271
01:41:08.400 --> 01:41:10.320
that the courts are giving over.
2272
01:41:10.320 --> 01:41:13.030
And I think at the last moment the Supreme Court
2273
01:41:13.030 --> 01:41:17.080
obviously recognized that they had to take a stand.
2274
01:41:17.080 --> 01:41:19.910
As I said, if they had ruled against us
2275
01:41:19.910 --> 01:41:21.560
I was on my way to Cuba,
2276
01:41:21.560 --> 01:41:24.090
and I would be talking about freedom and court orders.
2277
01:41:24.090 --> 01:41:26.210
And I'd have been on the other side of Guantanamo Bay
2278
01:41:26.210 --> 01:41:27.300
with an order knocking on doors,
2279
01:41:27.300 --> 01:41:29.770
excuse me sir, we have a warrant for this man's arrest
2280
01:41:29.770 --> 01:41:31.330
and we'd like you to hand it over.
2281
01:41:31.330 --> 01:41:33.630
And I'm sure the Cubans would have loved
2282
01:41:33.630 --> 01:41:36.223
to been part of that exercise.
2283
01:41:37.735 --> 01:41:40.600
And it would have been a major embarrassment
2284
01:41:40.600 --> 01:41:41.480
to the Americans.
2285
01:41:41.480 --> 01:41:43.225
So I couldn't believe
2286
01:41:43.225 --> 01:41:44.980
that they would actually allow it to happen.
2287
01:41:44.980 --> 01:41:46.740
Although I must say the American lawyers
2288
01:41:46.740 --> 01:41:47.617
all believe they would.
2289
01:41:47.617 --> 01:41:49.513
I just went, I can't believe that.
2290
01:41:51.090 --> 01:41:55.950
So looking back now in almost 10 years
2291
01:41:57.310 --> 01:41:59.103
and Obama has taken over,
2292
01:41:59.950 --> 01:42:02.823
what do you think of the American justice system?
2293
01:42:04.048 --> 01:42:05.440
(laughs)
2294
01:42:05.440 --> 01:42:07.430
If the Americans were trying to extradite me
2295
01:42:07.430 --> 01:42:09.510
to face any charges in the United States,
2296
01:42:09.510 --> 01:42:13.577
I would fight them as hard as anybody
2297
01:42:14.530 --> 01:42:18.993
who's being charged with a Wikileaks leak or anybody else.
2298
01:42:20.230 --> 01:42:25.230
I find it quite astounding that the American legal system
2299
01:42:25.400 --> 01:42:27.033
has enabled them to get away with that.
2300
01:42:27.033 --> 01:42:32.033
There's been some clawring back of ground,
2301
01:42:32.650 --> 01:42:36.500
but the capacity to provide the government
2302
01:42:36.500 --> 01:42:40.760
with the freedom to treat people in the manner that they are
2303
01:42:40.760 --> 01:42:44.343
is astounding and, I think, a serious bloated democracy.
2304
01:42:45.290 --> 01:42:48.690
Do you think Guantanamo should be closed?
2305
01:42:48.690 --> 01:42:49.630
Well, absolutely.
2306
01:42:49.630 --> 01:42:52.760
There's no reason why they should have Guantanamo Bay
2307
01:42:52.760 --> 01:42:53.770
in existence.
2308
01:42:53.770 --> 01:42:55.550
It is now used and there's certainly
2309
01:42:55.550 --> 01:42:57.550
a lot of documentary evidence.
2310
01:42:57.550 --> 01:42:59.480
And in fact, I'm very fond of quoting
2311
01:42:59.480 --> 01:43:01.370
one of the generals in Iraq
2312
01:43:01.370 --> 01:43:03.630
talking about the damage that Guantanamo Bay
2313
01:43:03.630 --> 01:43:07.110
has done to America,
2314
01:43:07.110 --> 01:43:11.380
and in particular, to provide a recruiting tool
2315
01:43:12.390 --> 01:43:15.950
to every terrorist and extremist organization in the world.
2316
01:43:15.950 --> 01:43:18.470
It's an ideal recruitment tool.
2317
01:43:18.470 --> 01:43:22.820
And I think it's probably killed more Americans
2318
01:43:22.820 --> 01:43:23.963
than it's ever saved.
2319
01:43:25.252 --> 01:43:27.265
And were you hoping
2320
01:43:27.265 --> 01:43:29.830
for something different happening after Obama was elected
2321
01:43:29.830 --> 01:43:31.290
even though you were in Australia?
2322
01:43:31.290 --> 01:43:33.420
Yeah, I fully expected and believed Obama
2323
01:43:33.420 --> 01:43:36.720
would have closed Guantanamo Bay very shortly thereafter.
2324
01:43:36.720 --> 01:43:39.540
I understand the difficulties that he has
2325
01:43:39.540 --> 01:43:40.990
and the choices he has,
2326
01:43:40.990 --> 01:43:42.960
but I really see him as being a captive
2327
01:43:42.960 --> 01:43:46.960
of the U.S. Military machine
2328
01:43:46.960 --> 01:43:48.930
that have failed to allow him to do that.
2329
01:43:48.930 --> 01:43:50.800
And I believe they've now taken
2330
01:43:50.800 --> 01:43:53.110
what they call high value detainees down there.
2331
01:43:53.110 --> 01:43:55.490
And there's probably some very bad people down there
2332
01:43:55.490 --> 01:43:57.790
who are very angry about what's happened to them.
2333
01:43:57.790 --> 01:44:00.040
But I would also say that's entirely understandable.
2334
01:44:00.040 --> 01:44:01.470
You treat people like that,
2335
01:44:01.470 --> 01:44:03.170
you can't expect them to love you.
2336
01:44:05.260 --> 01:44:06.550
Are there some other thoughts
2337
01:44:06.550 --> 01:44:09.838
you have about the last 10 years that,
2338
01:44:09.838 --> 01:44:13.260
or a story that you'd like to share with us,
2339
01:44:13.260 --> 01:44:14.970
or looking back just-
2340
01:44:14.970 --> 01:44:16.150
What other things that I've done
2341
01:44:16.150 --> 01:44:18.963
or other direct involvement or carry on?
2342
01:44:20.066 --> 01:44:22.350
There's been two Australians I've acted for,
2343
01:44:22.350 --> 01:44:27.060
and one Australian from Adelaide saw George Bush
2344
01:44:27.060 --> 01:44:30.430
land on the aircraft carrier and declare operation's over
2345
01:44:30.430 --> 01:44:32.650
and Iraq is now safe.
2346
01:44:32.650 --> 01:44:35.920
And this guy was a refugee who came out to escape Sudan
2347
01:44:35.920 --> 01:44:37.087
and he saw this and went,
2348
01:44:37.087 --> 01:44:38.870
"Great, now for the first time in 10 years
2349
01:44:38.870 --> 01:44:40.630
I can go back and visit my family."
2350
01:44:40.630 --> 01:44:43.500
So he goes back there, he actually gets married
2351
01:44:43.500 --> 01:44:47.110
and he gets snatched off the street and thrown in a brigade.
2352
01:44:47.110 --> 01:44:51.070
He was in every brigade during General Miller's reign
2353
01:44:51.070 --> 01:44:52.677
in a brigade.
2354
01:44:52.677 --> 01:44:54.760
And so-
2355
01:44:54.760 --> 01:44:56.730
Why was he snatched from the street?
2356
01:44:56.730 --> 01:44:58.880
Well, because he was a foreigner there
2357
01:44:58.880 --> 01:45:01.890
and he was being interrogated on the basis
2358
01:45:01.890 --> 01:45:06.050
that he was intending to be a suicide bomber
2359
01:45:06.050 --> 01:45:08.270
come back to avenge people.
2360
01:45:08.270 --> 01:45:13.270
And he's like, "I bought a return ticket. (chuckles)
2361
01:45:14.140 --> 01:45:15.540
If I'm gonna be a suicide bomber,
2362
01:45:15.540 --> 01:45:18.320
why would I have a return air ticket?"
2363
01:45:18.320 --> 01:45:19.800
And you represented or?
2364
01:45:19.800 --> 01:45:21.260
Well, I came in, the family came too,
2365
01:45:21.260 --> 01:45:22.190
I didn't know anything about it.
2366
01:45:22.190 --> 01:45:23.280
No one had heard of this guy.
2367
01:45:23.280 --> 01:45:27.940
He'd been in prison for a year and a 1/2 or two years
2368
01:45:27.940 --> 01:45:28.820
before I'd seen him.
2369
01:45:28.820 --> 01:45:31.270
He'd basically been in a brigade with the Americans
2370
01:45:31.270 --> 01:45:33.030
or one stage with the Brits.
2371
01:45:33.030 --> 01:45:35.410
And in the end, they eventually dumped him
2372
01:45:35.410 --> 01:45:37.620
over to the Iraqi authorities.
2373
01:45:37.620 --> 01:45:40.290
And at that time, or just about that time
2374
01:45:40.290 --> 01:45:44.260
that I came on board and started speaking out about it,
2375
01:45:44.260 --> 01:45:46.310
and I think it was the time that the Americans
2376
01:45:46.310 --> 01:45:49.640
then dropped him into the Iraqis,
2377
01:45:49.640 --> 01:45:52.690
whether I had any influence in his release, I have no idea,
2378
01:45:52.690 --> 01:45:55.840
but it certainly happened very shortly after.
2379
01:45:55.840 --> 01:45:58.330
But he said he went before and a Iraqi judge
2380
01:45:58.330 --> 01:45:59.387
in the end and said,
2381
01:45:59.387 --> 01:46:02.260
"Look, here's my passport, I'm Australian.
2382
01:46:02.260 --> 01:46:04.550
Here's my return air ticket, I just got married.
2383
01:46:04.550 --> 01:46:06.260
I wanna go home."
2384
01:46:06.260 --> 01:46:09.580
And so they rang up his parents, said, "Come pick him up."
2385
01:46:09.580 --> 01:46:14.040
But then it took me another year
2386
01:46:14.040 --> 01:46:18.430
to get a passport for his wife to come out here.
2387
01:46:18.430 --> 01:46:23.380
And because he was too scared to leave her there by herself.
2388
01:46:23.380 --> 01:46:25.780
And so he stayed there unable to work,
2389
01:46:25.780 --> 01:46:28.800
unable to get any money.
2390
01:46:28.800 --> 01:46:30.790
It was very, very difficult
2391
01:46:30.790 --> 01:46:33.450
while I harass the Australian authorities here
2392
01:46:33.450 --> 01:46:35.600
to get his wife a visa to come out.
2393
01:46:35.600 --> 01:46:37.250
And the last time I saw him here in Adelaide
2394
01:46:37.250 --> 01:46:40.003
he had two very fine children and was working.
2395
01:46:41.420 --> 01:46:43.260
Although he does struggle,
2396
01:46:43.260 --> 01:46:45.930
I know with what happened to him in a brigade,
2397
01:46:45.930 --> 01:46:48.670
he's certainly trying to make a go of it.
2398
01:46:48.670 --> 01:46:50.540
Well, in closing, Stephen,
2399
01:46:50.540 --> 01:46:53.150
maybe you can give a closing review,
2400
01:46:53.150 --> 01:46:56.430
but I was thinking maybe you could just tell the audience
2401
01:46:56.430 --> 01:46:58.760
just obviously you've been an activist.
2402
01:46:58.760 --> 01:47:01.840
It seems like all your life and maybe what you're doing now
2403
01:47:01.840 --> 01:47:05.323
just people can appreciate that you haven't stopped.
2404
01:47:06.734 --> 01:47:07.851
(chuckles)
2405
01:47:07.851 --> 01:47:10.880
That wasn't just a short period of your life
2406
01:47:10.880 --> 01:47:11.890
representing detainees
2407
01:47:11.890 --> 01:47:13.200
No, no.
2408
01:47:13.200 --> 01:47:15.550
Well, it was part of my life.
2409
01:47:15.550 --> 01:47:18.740
I mean, it was, and just to tell a little story,
2410
01:47:18.740 --> 01:47:20.430
it was Joe Margulies saying to me
2411
01:47:20.430 --> 01:47:23.140
and it was one of the biggest most exciting cases
2412
01:47:23.140 --> 01:47:24.660
or interesting, I shouldn't say exciting,
2413
01:47:24.660 --> 01:47:26.710
but interesting cases have been.
2414
01:47:26.710 --> 01:47:28.790
Well, no, there's a little case down here
2415
01:47:28.790 --> 01:47:31.490
called the Hindmarsh Island bridge affair
2416
01:47:31.490 --> 01:47:36.250
that had a much greater impact on certainly my life.
2417
01:47:36.250 --> 01:47:40.040
But it involved an examination of what was called
2418
01:47:40.040 --> 01:47:41.290
the secret women's business
2419
01:47:41.290 --> 01:47:44.010
that stopped the building of a bridge to Hindmarsh Island.
2420
01:47:44.010 --> 01:47:46.610
And why you'd want to build one, that's another question,
2421
01:47:46.610 --> 01:47:49.820
but it became political because it involved
2422
01:47:51.280 --> 01:47:54.440
an attack on the Federal Government.
2423
01:47:54.440 --> 01:47:56.200
It was a state Royal Commission
2424
01:47:57.200 --> 01:47:59.760
and it went on to really be attack
2425
01:47:59.760 --> 01:48:02.200
on Aboriginal beliefs and traditions.
2426
01:48:02.200 --> 01:48:04.470
And I saw it every day.
2427
01:48:04.470 --> 01:48:07.710
We were in court for months and months.
2428
01:48:07.710 --> 01:48:10.007
I saw the effect it had on Aboriginal people
2429
01:48:10.007 --> 01:48:14.100
and their beliefs and them being called liars constantly.
2430
01:48:14.100 --> 01:48:18.123
And it ran for five or six years almost full-time.
2431
01:48:19.100 --> 01:48:24.100
And that probably hardened me to be willing to challenge
2432
01:48:26.210 --> 01:48:28.193
governments and others.
2433
01:48:29.240 --> 01:48:32.610
And since then I've had a long stream
2434
01:48:32.610 --> 01:48:34.943
of really difficult cases
2435
01:48:34.943 --> 01:48:37.030
that other people are not interested in,
2436
01:48:37.030 --> 01:48:39.883
acting for people who are not really desirable.
2437
01:48:40.990 --> 01:48:44.060
I've acted for Australians who have been detained
2438
01:48:44.060 --> 01:48:46.420
in Kuwait on terrorism charges.
2439
01:48:46.420 --> 01:48:48.810
Another one who was detained in Iraq
2440
01:48:48.810 --> 01:48:50.980
as currently I'm acting for an Australian
2441
01:48:50.980 --> 01:48:55.980
who's been on death row in Afghanistan.
2442
01:48:56.040 --> 01:48:58.883
He was a ex army security contractor.
2443
01:49:00.230 --> 01:49:02.120
His trial lasted about 20 minutes
2444
01:49:02.120 --> 01:49:05.043
and no witnesses were called and he was sentenced to death.
2445
01:49:06.096 --> 01:49:07.560
He's off death row at the moment
2446
01:49:07.560 --> 01:49:10.700
but he's still been sentenced to 20 years
2447
01:49:10.700 --> 01:49:14.490
in one of the most dangerous notorious prisons in the world,
2448
01:49:14.490 --> 01:49:17.053
and it's a very difficult matter.
2449
01:49:18.896 --> 01:49:22.665
Well, is there something you'd like
2450
01:49:22.665 --> 01:49:24.433
to add on (chuckles)
2451
01:49:24.433 --> 01:49:29.433
just to (indistinct)?
I don't know.
2452
01:49:29.840 --> 01:49:33.550
Guantanamo Bay I think is going to be seen
2453
01:49:33.550 --> 01:49:38.550
as the significant start to the fall of American democracy.
2454
01:49:39.640 --> 01:49:42.450
I think that the Americans are facing
2455
01:49:42.450 --> 01:49:44.700
a very difficult time economically
2456
01:49:44.700 --> 01:49:47.500
and I think politically as well.
2457
01:49:47.500 --> 01:49:52.020
And I think that Guantanamo Bay will stand out as a beacon
2458
01:49:52.020 --> 01:49:54.870
of when things really started to go bad.
2459
01:49:54.870 --> 01:49:58.233
I hope that never comes to pass, but I really fear it.
2460
01:50:00.350 --> 01:50:02.330
Well, thank you.
2461
01:50:02.330 --> 01:50:05.730
Johnny needs 20 seconds of room tone
2462
01:50:05.730 --> 01:50:08.390
where he just, everything's quiet
2463
01:50:08.390 --> 01:50:10.180
and then we'll end it.
2464
01:50:10.180 --> 01:50:11.013
I'll just sit quietly.
2465
01:50:11.013 --> 01:50:12.520
Yes.
2466
01:50:12.520 --> 01:50:13.520
Thank you, Johnny.
2467
01:50:14.640 --> 01:50:15.990
Begin room tone.
2468
01:50:30.860 --> 01:50:31.693
End room tone.