Kenny, Stephen - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, we're rolling.

0:05

-

All right

0:06

Interviewer

Good morning.

0:07

-

Good morning.

0:08

Interviewer

We are very grateful to you

0:09

for participating in the Witness to Guantanamo Project.

0:11

We invite you to speak of your experiences and involvement

0:16

with detainees who were held in Guantanamo Bay, Cuba.

0:19

We are hoping to provide you with an opportunity

0:23

to tell you the story in your own words.

0:25

We are creating an archive of stories

0:29

so that people in America and around the world

0:31

will have a better understanding of what you and others

0:34

have observed and experienced.

0:37

Future generations must know what happened at Guantanamo

0:40

and by telling your story you're contributing to history.

0:43

And we are very grateful to you

0:47

and appreciate you willingness to speak with us today.

0:48

If anytime during the interview you'd like to take a break,

0:51

just let us know.

0:55

And if there's anything you say you'd like to remove

0:56

then let us know and we can always remove it.

0:58

And I like to begin by asking you your name,

1:00

and birthday, and age, and your residence.

1:02

You can start with that name.

1:07

-

All right, my name is Stephen Kenny.

1:08

I was born on the 17th of April, 1954,

1:11

and that makes me 57 years of age.

1:15

And I live in Adelaide.

1:18

I live at 60 Carlisle Road, Westbourne Park

1:21

in South Australia.

1:25

Interviewer

And where's your hometown?

1:26

-

Well, Adelaide is my hometown these days.

1:30

I was born in country, South Australia

1:32

near a place called Port Kenny.

1:36

It does have a historical connection.

1:39

Oh yeah.

1:41

That's where they ended up.

1:42

Interviewer

Okay.

1:43

And your marital status?

1:45

-

I'm married.

1:47

I've been married for 32 years.

1:48

Interviewer

Children?

1:51

-

I have two children and one who's died when she was 10,

1:52

and if I can just tell you that to tie I'm wearing

1:58

was the last present she gave me.

2:01

Interviewer

Oh, sweet.

2:03

-

So that's the significance

2:04

of the tie.

2:05

Interviewer

And a little bit about your education

2:07

and current occupation.

2:10

-

I was educated in high school in Adelaide

2:12

at a boarding school,

2:14

there was no high school where I grew up.

2:15

I then attended Adelaide University

2:18

completed a law degree there,

2:21

and I've been practicing law in Australia

2:23

for over 30 years.

2:25

Interviewer

And I guess we could begin then

2:29

by telling us how it was that you became involved

2:31

in Guantanamo issues.

2:33

Unless you wanna tell a little background before that

2:36

if you think that helps,

2:39

but otherwise we can go right into that.

2:39

-

Yes, there is a little bit of background

2:42

in terms of my positioning of it.

2:44

About a year before, I had assisted a family

2:47

whose son had been shot by the police

2:51

and I read it on the front page of the paper

2:53

one Sunday morning and realized that the father

2:55

actually had an office in the same floor

2:59

of the building I worked in.

3:02

And although I didn't know him well,

3:03

I was certainly, I knew him

3:05

and realized what trauma that could create

3:06

and immediately contacted him and said, can I help?

3:10

And realized that there was a great deal of assistance

3:12

I could give to the family.

3:15

And so with that in mind, in the summer of 2002

3:18

I was on the beach in Kangaroo Island reading the newspapers

3:25

and read about taking this Australian

3:29

to Guantanamo Bay in Cuba,

3:32

and, of course, like everyone else had no idea

3:35

that Americans had any interest in Cuba.

3:38

But what really caught my eye was this issue,

3:40

they were taking them there deliberately

3:42

to get him beyond the law and felt that that, as a lawyer,

3:44

that was an incredibly serious matter.

3:49

But I also recognize that in the publicity,

3:52

which there was a lot at that stage,

3:56

the family came from a suburb of Salisbury in Adelaide

3:58

which is not one of the highest socioeconomic areas.

4:01

And I noted that there was no response anywhere in the paper

4:04

from the family.

4:07

And I realized that the family probably

4:08

were having a fairly hard time of it.

4:11

And so when I came back from holidays,

4:14

I contacted some people I had previously worked with

4:16

who I knew had some expertise in the area

4:20

and obviously interest in such a matter,

4:23

and asked whether they would assist.

4:26

They included Professor Diane Bell,

4:28

who at that stage was the Head of Women's Studies

4:31

at George Washington University in the U.S.

4:34

George Williams, the University of New South Wales,

4:39

(indistinct) who was a QC and now a judge.

4:41

And we had a discussion about what we should do

4:45

and it was decided that we would offer to assist the family

4:48

if they wanted any assistance.

4:51

Interviewer

How much did you know about Guantanamo

4:54

than reading that one article at that point?

4:55

-

Oh, well, I did start then doing some reading

4:58

on Guantanamo Bay to find out what it was

5:00

and how it came about that America seemed to own

5:03

a piece of land down there.

5:07

And I must say at that stage

5:08

there was still some fair bit of information

5:10

on the internet, lots of photos of the various places

5:12

from people who had served down there.

5:16

And I noted also that that soon disappeared as well

5:19

off the internet as they gradually worked their way

5:23

through the archive and started removing things.

5:25

But apart from that, not a lot and certainly not a lot

5:30

about what they ultimately did down there

5:34

because at that stages there was no information

5:36

about the actual prison itself.

5:39

Interviewer

And you spoke to these experts

5:42

before you contacted the family, or?

5:44

-

Yes, I called contacted these other people.

5:46

I knew that in a case like this, I didn't have any expertise

5:50

in international war crimes, terrorism.

5:53

I was merely really an Adelaide solicitor,

5:55

but I knew that these people had contacts

6:00

and that we would find people who had expertise.

6:04

And one of the people that I contacted very shortly after

6:07

was a guy called Grant Neiman

6:10

who's at Flinders University.

6:13

And Grant had previously been employed

6:15

as a prosecutor here in Adelaide for the Commonwealth,

6:19

and had a period of about, I think about six or seven years

6:22

as a war crimes prosecutor at the Hague

6:27

on the former Yugoslavia.

6:29

So he knew everything there was really to know

6:31

about war crimes.

6:33

Although I didn't contact,

6:35

he wasn't one of the ones I initially contacted.

6:36

I contacted him very shortly after we started.

6:38

Interviewer

Did you think there was a problem?

6:42

Can you explain what problem you thought was happening,

6:44

why you felt the need for you to get involved

6:46

the way you did.

6:49

What were you thinking at that time?

6:50

-

Well, I've been involved in a Council for Civil Liberties

6:53

here in south Australia.

6:55

I've been an ex chairperson for the association,

6:56

small as it is,

7:00

and was concerned about those sorts of matters

7:01

that a person from Adelaide would be taken and placed

7:04

in a position that they were beyond the law.

7:08

And taking people and treating them in that manner

7:11

by a country such as America was quite a shocking thing.

7:14

And I knew that I was in a position to assist the family.

7:19

I knew I had contacts in the United States

7:22

that could do something about it.

7:24

And that's what motivated me.

7:26

But I also bore a mind my previous experience

7:28

of working with families in traumatic cases,

7:31

and I know the effect that it has on people.

7:34

Interviewer

Think you'd tell us which family this is

7:37

and when you called them, how that went about?

7:39

-

It was the family of David Hicks,

7:41

a young Australian who'd been taken to Guantanamo Bay,

7:44

and I contacted Terry Hicks and his wife, Bev

7:47

and I basically rang them up and explained who I was

7:54

and inquired about whether they like

7:58

to talk to somebody about it.

8:01

And they said that, yes, but they didn't have any money

8:02

for lawyers.

8:05

So I said, look, I understand that's the case,

8:06

but it's not about money and I don't expect

8:09

there'll be any money in this case,

8:11

but I was still very happy to talk to you and to assist you.

8:13

So I made an appointment to go out and see them

8:17

and meet with them.

8:19

Interviewer

Had they thought about contacting lawyers?

8:21

Do you know or?

8:24

-

I don't know.

8:25

I think they might have, but again,

8:26

it was the issue of funding.

8:27

Lawyers are not for people who are anything

8:29

other than wealthy or influential, really.

8:33

Interviewer

Could you tell us about the meeting

8:35

you had with them?

8:37

-

Yes, it was very pleasant, though, very lovely couple.

8:39

They live in a modest suburban house in Adelaide,

8:42

and they were very welcoming.

8:47

The concern that they had was that

8:49

they really felt that they were on their own,

8:52

that everybody was attacking them.

8:53

And at this stage, the papers were running stories

8:55

about David Hicks in very negative ways

8:58

as you could well imagine in those days.

9:02

And so they were really under siege.

9:05

But worse than that,

9:08

they had been told by the Australian Federal Police

9:09

not to talk to the press, don't talk to anyone.

9:11

And so they they really couldn't answer anything

9:14

that was being written on in the paper

9:18

even though they knew some was plainly untrue.

9:19

Interviewer

Did you give them advice

9:22

on how to cope with the media?

9:23

-

We had a lot of discussions about coping with the media

9:26

and a lot of planning

9:29

about whether we would deal with the media,

9:31

how we would deal with it, what we would do.

9:33

It wasn't that we launched into a media campaign.

9:35

It was more that we needed to think about

9:39

how we would frame the strategy

9:41

in what we were trying to do.

9:43

We quickly realized that that there was just

9:46

an all out assault on David,

9:48

particularly in a town where we have one newspaper

9:52

and it's owned by the News Corporation.

9:56

In fact, the News Corporation started here in Adelaide,

9:59

in fact, across the road here with one newspaper

10:03

called "The News."

10:05

But the local paper now is called "The Advertiser,"

10:07

and it was just running article after article about David.

10:09

I mean, they interviewed everybody they could find,

10:13

they got every scrap of paper they could find.

10:16

They ran stories that he once went

10:18

to a paint ball shooting thing up in the Adelaide Hills

10:20

and it became written up as a terrorist training activity,

10:26

an attempt to recruit others.

10:29

It was just farcical, but it was relentless.

10:30

Interviewer

So what did you decide to do next

10:36

after you met with them?

10:39

What was the strategy (indistinct)?

10:40

-

Well the strategy was really twofold.

10:41

The first one was to take some legal action

10:44

and the second one was to try and deal with the media.

10:46

And I might say Terry became an excellent media personality,

10:49

I suppose, for lack of a better word.

10:55

He really learned to understand and to speak well on media.

10:57

And if you ever see some of the shots that he did,

11:02

he was very impressive.

11:07

And he was very well-regarded across Australia

11:07

for standing by his son.

11:12

So he had a lot of admirers,

11:14

even of people who really didn't support his son at all

11:16

at least recognize that his father was doing

11:18

a fantastic job.

11:21

Interviewer

Did you also address the media in your role?

11:22

-

Yes, the media were a constant.

11:26

It was an endless media circus, really,

11:30

because in many ways it was very simple

11:33

because there would be some new revelation

11:36

would come out of the United States

11:38

and the media would just descend on it.

11:40

And it felt like that most of the time.

11:43

Interviewer

Did it overtake your work?

11:47

Were you able to do other work at this time?

11:48

-

Well, I work in a partnership of other lawyers

11:51

and I have a requirement of earning my way and yes, it did.

11:54

It did impact on my work quite significantly,

11:58

but a lot of it, because it was dealing with stuff

12:01

in the United States I could do at night at home,

12:04

but it certainly did interfere with my other work.

12:07

Interviewer

So can you tell us what happened next

12:12

after you met with David?

12:13

-

Well, the other one was the legal strategy

12:14

and what we would do.

12:17

And it was pretty obvious that the thing to do

12:18

was to either take out a writ of habeas Corpus

12:21

and sue George Bush, because he seemed to be the bloke

12:24

that was holding him.

12:26

And the U.S. Military had named them all

12:27

and demand that he'd be brought before a court.

12:30

And that's what we did.

12:35

But firstly, I had to find lawyers in the United States

12:37

who were willing to sue George Bush and the U.S. military,

12:40

and in January, 2002, it was a little difficult.

12:43

But through my contacts with Diane Burl,

12:48

I contacted her and I knew she'd been working

12:50

with the law school to George Washington University.

12:52

And I contacted one of the people there.

12:56

And to be quite honest, he was not terribly helpful

12:59

nor terribly interested.

13:02

I think he just thought it was a bit farcical

13:03

and fence what we would be trying to do this.

13:05

Interviewer

What?

13:08

Suing George Bush or that (indistinct)?

13:09

What did they think was farcical?

13:11

-

Well, no.

13:12

That was my feelings about their reaction

13:13

I would've expected.

13:15

If that had happened in Australia,

13:16

I know people in the universities

13:19

that would have been very interested in the matter,

13:20

really very willing to be involved and to assist.

13:22

And I felt the interest was not great

13:25

but I realized it was a major court case.

13:28

It was not ever going to be easy.

13:32

And I needed some people with some real backups,

13:34

some real expertise and knowledge

13:36

and the capacity to do a lot of work.

13:38

And I didn't know anybody.

13:43

I figured we would need to issue in Washington

13:45

which is the court nearest where George Bush is.

13:48

And finding somebody there, it was quite a challenge.

13:52

So through the law school, I got a list of major law firms

13:56

with a pro bono section and I started contacting them.

14:01

And of course, I would ring up and basically say,

14:05

look, I'm a block from Australia

14:07

and I'd like to see George Bush and the U.S. Military

14:10

on behalf of a terrorist in Guantanamo Bay

14:14

and I want you to do it for free

14:17

'cause I haven't got any money. (chuckles)

14:18

I was a little more polite than that,

14:22

but that was the basic story.

14:23

Interviewer

Is it humbling?

14:26

-

They were very busy.

14:27

Everybody seemed to be very busy over there

14:28

and in Washington at that time of year,

14:30

obviously, they must do a lot of pro bono work,

14:32

but no one could help at all.

14:34

And I was really starting to get a little desperate

14:37

in terms of finding somebody

14:40

when I eventually found Michael Ratner

14:43

(indistinct)

14:45

Look, I'm not sure now, I've forgotten.

14:47

And Michael and I have discussed this

14:49

whether he sent me an email because he'd got word

14:51

that I've now been in the media

14:55

saying we are going to sue George Bush and the U.S. Military

14:57

if you don't charge him or release him.

15:00

That's the rule.

15:03

He's an Australian citizen

15:03

and he deserves to have a fair go.

15:05

And so I can't remember whether he sent me an email

15:09

or somebody put me onto him,

15:11

but by this stage I'd become wary about other people.

15:13

There've been others saying

15:17

that we're going to act for David.

15:18

And that was the usual I don't know whether the suspect's

15:19

coming out of the woodwork.

15:23

So I realized I needed to find out whether these people

15:24

were the right people to go with.

15:27

And there was another Australian,

15:29

Professor Hillary Charlseworth, who was from Canberra,

15:32

sorry, the Australian National University,

15:39

who I knew was working in New York.

15:41

So I got in touch with her and said,

15:42

hey, look, can you find out who these people are

15:44

and whether they're any good

15:46

and whether I should go with them.

15:48

And she sent back and email saying,

15:49

"Look, these are the right people.

15:51

You've found the right people, go with them."

15:52

And that was very reassuring for me.

15:54

I mean, that's what I try to do is to,

15:56

and I'm now backing a serious policy

15:59

that if I'm dealing with people overseas,

16:01

I find an Australian that I trust

16:02

and then ask them to find somebody else that can fit them in

16:05

and to a larger picture to see

16:09

if they really are the right people

16:11

we should be dealing with.

16:12

Interviewer

And can you tell us what step

16:14

came after you finally contacted Michael Ratner.

16:16

-

And well, we agreed.

16:18

He brought in Joe Margulies into assist as well

16:21

from the University of Chicago,

16:24

I think he was at that stage.

16:26

And we had a series of phone link ups

16:28

to discuss the strategy that we had.

16:31

That strategy at that time was to actually challenge

16:34

the findings of the military commissions in Guantanamo Bay.

16:37

And I said, no, I'm not interested in waiting.

16:41

I remember at that time, I said that could be years.

16:44

I never thought it would be quite as long

16:47

as what it turned out to be,

16:48

but I said, no, look, I think we should go to court now.

16:50

And these people haven't been charged,

16:54

they've not committed any crime.

16:56

We're not aware that this guy

16:58

has actually done anything wrong

16:59

and he shouldn't be detained.

17:00

And so we developed a strategy of issuing proceedings

17:02

and they all agreed to that,

17:09

that we would issue in Hicks's name.

17:10

Interviewer

Hicks was the first plaintiff

17:13

or the first?

17:15

-

Hicks was to be the only plaintiff at that stage.

17:16

And we then wrote to George Bush and the U.S. Military

17:18

and said to them, you know, give them due warning

17:23

that if they didn't charge him, or bringing before a court,

17:24

or release him we would issue these proceedings.

17:28

And to my real surprise at that time, (coughs)

17:31

pardon me, they came out of the United States,

17:34

State Department or some spokesman,

17:39

started issuing press releases

17:42

saying that David Hicks was a dangerous criminal.

17:43

That he had threatened to kill an American serviceman.

17:47

That he'd escaped out of his handcuffs

17:51

on the way to Guantanamo Bay.

17:53

That he'd attempted to chew through the wires

17:54

on the aircraft.

17:56

How do I...

17:58

What?

17:59

What is this?

18:00

And I can understand that the way we had seen

18:02

by that stage the photos of the way these people

18:05

were being treated,

18:07

and quite frankly I have been treated like that.

18:08

And being a young Australian,

18:11

I could, well, imagine him saying,

18:12

"Listen, you bastard, I'll kill you and get out of here."

18:13

So I wasn't terribly worried about that sort of stuff,

18:16

but the other stuff was completely strange.

18:18

The American lawyers then felt that

18:22

we should try and find others to join in

18:24

on the action, and particularly others who weren't involved

18:28

with the Taliban.

18:33

I mean the reports were that David had been associated

18:34

with the Taliban at that time.

18:37

And so they found the boys from Tipton

18:40

and we actually made Rasul, the lead plaintiff,

18:45

which from our point of view in Australia

18:49

was probably a mistake

18:52

because he was a complete unknown out here.

18:53

And if Hicks had been the lead plaintiff in that case,

18:55

it would have had a lot more impact

18:59

in terms of his release, ultimately back into Australia.

19:01

Interviewer

Do you believe that or?

19:05

-

Look, I firmly believe that

19:07

because that was actually a very significant court case.

19:08

We ultimately lost all the way

19:12

through the United States court system.

19:15

And I think we got to,

19:18

when we got to the Supreme court,

19:22

I was told that we would lose there as well.

19:24

But at that stage, I'd actually contacted the Cuban Embassy

19:27

and had made arrangements to go to Cuba to get a court order

19:32

from the Cuban court.

19:34

Because, obviously, if the United States court

19:35

didn't have jurisdiction,

19:37

then the Cuban court had jurisdiction.

19:38

I'm a little, sorry they decided to go ahead,

19:41

I was looking forward to a trip to Cuba.

19:44

I would've thought, I mean,

19:46

admittedly it would have been largely a publicity stunt,

19:47

but I think it would have highlighted

19:49

the hypocrisy of the American legal system

19:52

if the Supreme Court had not taken responsibility for it.

19:54

And then Rasul made a finding that it was within

19:58

the jurisdiction of the court.

20:02

Interviewer

That's so interesting.

20:04

I hadn't heard that, that you were plain to them

20:05

asked the Cuban courts to intervene in Guantanamo

20:07

if the US claimed they didn't have jurisdiction

20:12

in Guantanamo.

20:14

-

Well, the question is everywhere

20:15

is on to somebody's jurisdiction.

20:17

And if the American courts had said,

20:20

"Look, not our jurisdiction," then obviously it's on Cuba.

20:21

It's land that is leased from the Cuban Government.

20:25

In Australia, the American government leased land

20:30

from the Australian for their military installations,

20:33

but that land's still Australian land

20:36

and still under Australian law,

20:38

and very clearly it would have been under Cuban law.

20:40

The Cubans were very interested in that

20:42

as you could well imagine.

20:45

Interviewer

You had actually filed papers at that point?

20:46

-

No, no, no.

20:49

Interviewer

Waiting to see?

20:50

-

Yeah, but I had made some inquiries

20:51

to the Cuban representatives in Sydney

20:53

and they did show some interest in that matter.

20:55

Would have been interesting.

20:58

Interviewer

So going back, can you explain to us

20:59

why you think if David Hicks was the lead

21:01

petitioner or plaintiff that would have made a difference

21:05

for you and you would've got (indistinct) said earlier.

21:07

-

The court case was in legal terms very significant.

21:10

And it established for the first time,

21:15

because up until then, we'd essentially lost every round,

21:17

it established that the courts would hear

21:20

about what was going on in Guantanamo Bay

21:23

and would challenge it.

21:25

I'd actually hope that the court would make some direction.

21:27

I was probably a little naive in terms of expecting them

21:29

to take some responsibility and ownership

21:32

as an Australian court certainly I believe would have.

21:35

But all they did was to acknowledge

21:38

that was within the jurisdiction

21:40

and then sent the case back to the lowest level

21:42

of the American jurisdiction.

21:44

We were then facing another three or four years

21:46

to get back to the Supreme Court again.

21:48

So they didn't deal with the problem as I saw it at all

21:50

and that was disappointing.

21:54

Interviewer

Had you flown to the U.S. during this time

21:57

to meet with the people you were working with?

21:59

-

By the time it got to the Supreme Court, yes.

22:02

I had been in the U.S. and had managed to meet

22:05

Michael Ratner and Joe Margulies and Elis.

22:09

Interviewer

And did you offer advice on the papers

22:12

that the lawyers filed?

22:16

Were you involved in that to or was that-

22:18

-

Really only on the original drafting

22:20

of the first application.

22:23

I certainly saw all the drafts that went through,

22:25

but we're now talking some very specialist American law

22:27

I'd had no expertise in it,

22:34

and was dependent on the elders to draft it.

22:35

But I certainly read all the submissions and the papers

22:39

and the decisions along the way and the broader decisions.

22:44

Interviewer

And can you tell us how Clive Stafford Smith

22:49

came into this?

22:51

Interviewer

Clive came in very early after the issue

22:53

with the Americans reporting David Hicks.

22:56

There was also one way one of the Congresswoman

23:00

went down and did a tour of Guantanamo Bay

23:05

and added to this whole thing of the attack on David Hicks

23:08

about who threatened to kill an American citizen.

23:11

I can remember on TV watching and saying

23:14

and she gave him the evil eye.

23:16

I don't know whether David could remember anything about it.

23:19

When I later spoke to him he had no idea

23:21

it was coming and going down there.

23:23

Interviewer

Were you able to speak to David Hicks

23:25

during this time at all?

23:27

-

Not at all.

23:28

We were not able to have any contact with him.

23:29

The family were getting letters through the Red Cross.

23:33

I was pushing here politically in Australia

23:36

for access to David in Guantanamo Bay

23:40

and making quite an issue of the fact

23:43

that we were not getting any access at all.

23:45

And I had sort of lowered the request

23:50

to simply being able to visit him,

23:52

and the lowest level of requests that I could make.

23:56

And the Australian government were very reluctant

24:00

to allow us to do that.

24:03

Interviewer

It was Australia that blocked

24:04

your visiting David Hicks?

24:06

It wasn't the U.S.?

24:07

-

Well, it wasn't a question

24:09

of the Australian government blocking me,

24:10

but the Australian government at this stage

24:13

were exercising a lot of influence over what was happening

24:15

in Guantanamo Bay,

24:19

and their position was very strongly in favor of George Bush

24:21

and what was happening there.

24:27

I'm aware that there was a lot of communication

24:30

between Australia and the United States.

24:32

I made an application for freedom information

24:34

that disclosed a very long list

24:38

of cables and and some headings

24:42

that indicated that there was a coordinated approach

24:44

between the Australian and the U.S. government.

24:47

Although, it did appear to me that really

24:49

it was the American government

24:51

was telling the Australian government

24:52

what they should be saying and what was happening,

24:54

but I haven't been able to get those cables

24:56

we lost on our application.

24:58

Interviewer

Because it was state secrets?

25:01

-

Oh yeah. Yeah.

25:03

-

So-

25:05

-

And were you able

to send David Hicks a letter, you personally,

25:06

as his attorney?

25:08

Were you and his counsel, were you?

25:09

-

Well, in effect I was and the position that I took

25:12

I was acting for him

25:15

by what we call his next friend, his father,

25:17

because no one was able to get access to him.

25:20

And until that time

25:24

in the habeas corpus jurisdiction particularly,

25:25

somebody can stand up on your behalf.

25:28

An appropriate party would be his father

25:30

to instruct me to take that action.

25:34

So from a legal point of view,

25:36

my instructions were from his father,

25:37

but on behalf of David.

25:41

Interviewer

And were you able to send him

25:43

any correspondence?

25:45

-

Not in those early days?

25:46

No, there was no correspondence

25:48

and no contact with David at all.

25:50

Ultimately they were able to exchange letters

25:55

with the family through the Red Cross,

25:57

and they advised David that I'd been instructed

26:00

and that I was acting.

26:04

And so he was aware that it was trying to assist.

26:06

And at one stage, a little further down the track,

26:11

I managed to organize a phone call

26:13

from his parents to David, which was very tightly monitored

26:18

and by then started conversation.

26:22

Interviewer

Was that pre or post the Rasul decision,

26:24

that phone call?

26:27

-

I've forgotten, to be honest,

26:28

I can't remember exactly when that was.

26:29

I mean, this was all.

26:32

I mean the Rasul stuff took a number of years.

26:33

I believe it was probably pre the Rasul decision.

26:36

In fact, I'm not even sure.

26:40

I think we had actually got to Guantanamo Bay

26:41

before the ultimate Rasul decision in the Supreme Court.

26:44

Interviewer

You personally got to Guantanamo.

26:48

-

Yes, I did.

26:51

I was the first lawyer into Guantanamo Bay.

26:53

Interviewer

Do you have any idea when that might be

26:57

and how that happened?

26:59

-

It was in November, December.

27:00

If I have to remember the date,

27:04

it must've been about 2004

27:05

or 2005.

27:09

-

Oh, Rasul was decided

in '04.

27:11

-

Okay, there was '03.

27:13

Interviewer

Before Rasul was decided

27:15

when it was just up on (indistinct).

27:16

-

Yes.

27:19

In the Supreme court.

27:21

Interviewer

But (indistinct)?

27:22

-

I think I had been to Guantanamo Bay by the time-

27:24

-

The decision came.

27:28

-

The decision came out.

Because I remember I didn't go back to the United States

27:30

for that hearing, but I'm sure I'd been there before.

27:33

Interviewer

Can you explain your first visit

27:37

to Guantanamo.

27:38

-

Probably to explain how it came about,

27:39

my understanding was that they had convinced David Hicks

27:42

that he should plead to something

27:45

and that David was prepared to do that.

27:48

And that as a result,

27:51

he would then be coming home shortly thereafter.

27:53

And so I had been pushing the Australian government

27:57

for years and years and years

28:00

to be able to have access to David

28:01

for him to be charged or brought before a court.

28:04

And then all of a sudden they were prepared to facilitate

28:07

my travel to Guantanamo Bay.

28:12

Interviewer

They meaning?

28:14

-

The Australian and American governments.

28:15

I needed a security clearance,

28:19

which they gave me in about a week,

28:21

which was most unusual.

28:23

They organized my flights over there.

28:25

The Australian government, granted some legal aid funding

28:27

for me to travel there,

28:33

which they had been refusing all the way along

28:35

and denied that they would ever do that.

28:37

And suddenly everything was facilitated.

28:40

Within sort of a week I was heading for Guantanamo Bay.

28:43

And I believe the the reason for it

28:47

was that the Americans had decided

28:49

that David would plead guilty to something

28:51

and they could then have their first show trial.

28:52

And look, here was his Australian lawyer

28:55

and he's getting good legal representation .

28:57

And in a sense we knew we were being used and for that,

29:02

but we decided that we weren't going to stand

29:05

on a matter of principle.

29:08

We thought it was more important

29:09

that we actually go and see David and talk to him

29:10

even though we knew that we would be used

29:13

as supporting the system.

29:19

And so quite literally within about a week,

29:23

I was on my way to the U.S.

29:26

I had had some contact with the Major Mori at this stage.

29:28

The defense lawyers for the military had at that time

29:32

been set up and had been there for about six months.

29:35

But we'd had...

29:40

It was while we were running the Rasul case and these guys,

29:43

this is another little side story

29:46

that occasionally or constantly happened in this case.

29:49

And Joe Margulies had been contacted

29:52

by a professor of law,

29:55

and I won't name him because I'm defaming for it,

29:58

but he had contacted my Margulies

30:01

and advised Margulies that we now had a conflict of interest

30:06

and could no longer act for David,

30:09

and that he should kind of commence acting for David.

30:11

Interviewer

Who's we had a conflict of interest?

30:13

-

Margulies and myself.

30:15

And I never quite understood the basis

30:18

of what his claim was.

30:19

Well, I think the conflict was because we were purporting

30:20

to act in a civil suit and we couldn't run

30:23

the military tribunal as well.

30:26

And that the U.S. defense lawyers

30:28

and this particular professor

30:31

would then take over running the...

30:33

Well, actually they were going to take over

30:37

the U.S. Supreme Court action as well.

30:38

And Joe dutifully reported it to me in a phone call,

30:41

and I said to him, so did you tell him to fuck off?

30:45

(interviewer laughs)

30:49

(chuckles)

And Joe spluttered politely on the other end of the phone.

30:51

I said, well, Joe, I think you better ring him back

30:55

and just tell him to fuck off.

30:56

And if you don't want to do it,

30:58

I'm happy to do that. (laughs)

31:00

And he agreed that he would have,

31:02

this stage I was getting a little sick

31:05

of some of these interferences that were occurring

31:06

from time to time.

31:09

But Joe had agreed that he would very politely

31:12

inquire of what he thought the problem was

31:15

and then he would consider it and then he'd make a decision

31:18

in a very rational firm manner,

31:21

which Joe was a very good lawyer

31:23

and he was obviously the perfect man.

31:25

And I could clearly say those sorts of things to him

31:27

and get away with it. (chuckles)

31:31

Interviewer

And then this is around the time

31:33

when you then went Guantanamo?

31:36

-

This was just before I went to Guantanamo Bay

31:37

because I hadn't met them,

31:39

and that, to be honest, did put me a little off side.

31:41

The military lawyers, I thought, well, firstly

31:44

they are the military lawyers

31:47

they are not some independent party,

31:48

they're appointed by the military.

31:51

And I understand the jag system over there,

31:54

I know how that works,

31:56

but I still had, after that conversation,

31:57

some reservations about them.

32:01

Interviewer

What was your expectations

32:03

going to Guantanamo?

32:05

-

That's very, the expectations, probably not a lot.

32:09

I had no idea what was likely to happen.

32:13

I had not been at that stage given the information

32:17

that they'd been priming David Hicks for a guilty plea

32:19

in those very early days.

32:22

When I left here I didn't know any of that

32:24

and suddenly it had suddenly all happened

32:26

and I had no indication as to why

32:28

that had suddenly happened,

32:32

because it was a complete about face

32:34

to what I'd faced for the last two or three years

32:37

of (indistinct).

32:41

-

Did you really sense

and what you would see down there?

32:43

Did you know what you would see?

32:45

Were you afraid?

32:46

-

No I was never afraid.

32:48

Maybe I'm just a little foolish,

32:51

but I'm prepared to take risks on matters like that.

32:52

But I have very strong faith in the Australian government.

32:57

I think the Australian government has quite high standards

33:03

in the ultimate righteousness of things

33:06

that they will always generally do the right thing.

33:09

And even though I was in very bitter and acrimonious dispute

33:13

with the Australian government at the time,

33:19

I didn't believe that that would have hang me out to dry

33:21

unless they could really get me for something.

33:23

If they could have shafted me they would have.

33:27

I was very careful about what I said and what I did,

33:29

and I didn't have any skeletons in the closet

33:32

that I was concerned about.

33:34

But I believed if I essentially kept my nose clean,

33:37

did the right thing that ultimately the publicity

33:39

of me being imprisoned, or held,

33:44

or running into trouble in Guantanamo Bay

33:46

would protect me essentially.

33:49

So I didn't have any doubt about that.

33:51

Interviewer

Why was it...

33:53

Before I go back to Guantanamo,

33:55

why was this Australian government so unhappy with you

33:56

or difficult, find you difficult, or concerned about you?

34:00

-

Well, it's simply because I was constantly attacking them

34:05

and I was trying to do it on a very basic level.

34:10

I would say that Mr. Howard

34:11

was the Prime Minister of Australia.

34:13

He's allowing an Australian citizen

34:15

to be held by a close ally

34:17

in a position where he has never been charged

34:20

with any crime.

34:23

I mean, he's never been brought before a proper court

34:23

and try to explain it.

34:27

And there was a shift in the publicity here in Australia

34:28

that it started out, you know, David Hicks is a terrorist

34:32

and they're all terrorists and they should all be shot.

34:35

But gradually we explained in the media constantly

34:38

that if, and and his father was very good.

34:44

He would say, "Look, if he's done something wrong,

34:47

I don't mind charge him.

34:50

We'll organize to defend him in the normal manner.

34:51

But you can't hold him there without charging him.

34:54

He hasn't done anything wrong."

34:55

And so it was ultimately that message

34:58

of what Australians would call a fair go that got through.

35:04

I think that, and the government realized it

35:08

and they were tracking it in the opinion polls.

35:10

And it was starting to become an issue

35:13

and having someone constantly criticized them

35:18

for their failures,

35:21

attacking the Attorney General for his failure

35:22

to uphold the law, as I saw, it didn't win many friends.

35:25

So, no.

35:30

And I'd had a little history

35:31

with some of the government ministers before

35:33

on a previous court case I'd done.

35:37

So I wasn't liked.

35:38

And they would say some very nasty things and criticize me.

35:40

Interviewer

And so when you arrived in Guantanamo

35:44

what you did see?

35:45

-

Well, can I just go back

35:47

in terms of getting to Guantanamo Bay.

35:49

I flew from Adelaide and nearly 24 hours later

35:52

I was in Washington late at night.

35:55

And at 9:00 AM the next morning,

35:57

Major Mori, actually, met me at the airport

36:02

the night before.

36:04

And the next morning we went over to see a General Hemingway

36:05

at the Pentagon.

36:09

And that stage was still showing the scars of September 11.

36:10

And it was a very surreal experience, I suppose,

36:14

to be sort of marched into the Pentagon

36:18

and presented before a General

36:20

and provided with essentially a contract

36:22

I needed to sign if I was to go to Guantanamo Bay,

36:25

that had a whole list of conditions.

36:29

Some of those conditions were that I would not talk

36:31

to the media about any subject

36:33

without their express permission,

36:35

which of course I objected to.

36:37

There was another one that I would remain in Guantanamo Bay

36:40

at the direction of who was in charge of Guantanamo Bay

36:44

for the duration of the court case

36:47

and not leave without their permission.

36:48

And I pointed out to the General.

36:50

I said, General have a family in Australia.

36:51

I have a small business I run in Australia.

36:54

I don't wanna stay in Guantanamo Bay

36:57

a minute longer than I need to,

36:59

and so I'm not signing that one either.

37:01

And the other one that really concerned me

37:04

was that if they decided I'd committed some offense

37:05

in which to extradite me from Australia,

37:08

I would not resist the extradition at all.

37:12

And I explained to the General that I had really no faith

37:16

in their system of justice, considering what they were doing

37:20

in Guantanamo Bay.

37:22

And that if he wished to extract me from Australia

37:23

I would fight him all the way,

37:26

and I wouldn't be signing that either.

37:27

And so we had a little standoff.

37:30

I left without signing the paper

37:32

and went back to meet the other defense lawyers.

37:34

And I had the Australian counsel ringing me up saying,

37:37

"Look if you don't sign that you'll have to pay back

37:40

the airfare we just paid to fly over,"

37:42

which was a business class airfare

37:44

which is not cheap from Australia.

37:46

I went well, whatever. (chuckles)

37:48

We'll see what happens.

37:50

Interviewer

So you signed dit?

37:51

-

No, no, they dropped the clauses.

37:52

-

But they dropped-

37:54

-

Except the one

about the media.

37:55

That I thought, well, we'll deal with that one later.

37:56

I can live with that for the moment and we'll see.

37:59

And ultimately, I'll just digress onto the media one,

38:02

we, actually, there's another little story

38:07

in there on the media.

38:09

Because I was the first one in there at this stage

38:11

we'd not been given, you know,

38:13

we'd requested permission for media

38:14

to talk about various things, sorry, from the General,

38:16

but hadn't had an answer.

38:19

So we had no permission to talk to the media.

38:20

And I think it was about the second day

38:23

I was in Guantanamo Bay, staying at the Naval block of flats

38:24

on the, what was it called?

38:30

The Leeward Side on the Guantanamo Bay proper side,

38:32

not where all the others ended up staying later.

38:35

I was actually right in town

38:37

and was free to walk around by myself,

38:39

which I duly did.

38:41

I'd get up in the morning and go from my usual walk

38:42

and wonder around, take photos of the gundam placements

38:44

and all these sorts of things while I was there.

38:47

simply as a tourist.

38:50

And people would salute me because I had no idea

38:53

I had gray hair and they thought

38:54

I was obviously someone senior.

38:56

All these people, morning and keep walking.

38:57

I would go down to the, what is it?

39:01

The PX or whatever

39:04

they called it.

39:05

-

You were in no escort?

No, escort. No, no.

39:06

Mori was staying somewhere completely different

39:09

with the Marines.

39:11

And so I was just free to come and go as I pleased.

39:12

But the second night I was there.

39:17

I had a phone call, which if you've ever been,

39:20

at that stage I hadn't worked out the phone system.

39:23

I couldn't ring anybody from Guantanamo Bay.

39:25

And I'm in this 50s motel unit on the hill,

39:27

just up from the store and the phone rings.

39:31

That's unusual and I don't even know

39:35

what the number is myself.

39:37

And it was a journalist who wanted to talk to me

39:38

about the whole thing.

39:42

And I went, well, mate, look, I'm really sorry

39:43

but I've had to sign an agreement

39:45

that I can't talk to the media.

39:46

I need permission and I can't.

39:48

He was very persistent

39:51

and then I thought, no, no, no mate.

39:54

This is, you know, firstly he's American

39:58

and I didn't have a great deal of trust of anyone American

40:02

at that time.

40:05

And so I kept refusing

40:07

and then he wanted to discuss things with me off the record.

40:08

That would be fine to talk to me off the record,

40:12

wouldn't repeat anything.

40:13

And mate, I don't know what you don't understand

40:15

but I can't talk to you.

40:16

And eventually I hung up on him.

40:19

And of course, the phone call caused me some concern.

40:21

So the next day we were somewhere getting lunch

40:23

and realized there was a media contingent.

40:27

Then I ran into Lee Sales, an Australian journalist.

40:29

And I said to her, do you have block with you

40:33

by the name of, whatever his name was?

40:35

She goes, "Yeah."

40:38

And I said, what's he like?

40:39

Said, he's from some small town paper

40:39

under the hood on the middle of the U.S.

40:41

Anyway I went back and spoke to Mori

40:44

and said, go and find out who that guy is

40:46

and what's he doing down here?

40:48

And it was interesting to know how did he know where I was?

40:50

And nobody knew where.

40:54

I didn't even know where I was.

40:54

And Lee had no idea that I was even there.

40:56

And so he went over and chatted him up

41:00

and part of his story was that he was

41:04

he was also a military reservist as well.

41:08

And I have no doubt that they were just trying me on

41:12

to see whether I would comply with their orders or not.

41:16

(indistinct)

41:20

It was a time of great suspicion and concern

41:22

and one of the colonels was involved in it.

41:26

I spoke to about whether she thought

41:31

that they would actually be recording the conversations

41:35

with David Hicks.

41:37

And she'd said, "I think it's probably highly likely."

41:39

And that whole thing of tapping of telephones

41:43

and perusing of people's emails.

41:47

I know that all phone calls in and out of Australia

41:50

or emails are actually recorded in Australia.

41:53

I knew that before any of this occurred.

41:56

And so they are capable of getting a complete transcript

42:00

of everything I said and every email I sent

42:04

and everything else.

42:06

So it was a time of of great suspicion

42:08

and, of course, required great caution on our part.

42:12

Interviewer

So can you tell us about your first meeting

42:16

with David Hicks?

42:19

-

Yes, I can.

42:21

He was at Camp Echo,

42:23

which was reasonably newly built, I suspect.

42:25

It was a compound surrounded by

42:29

what we call cyclone fence.

42:34

Quite high, topped with barbed wire,

42:36

and covered with a hash and ore bagging,

42:39

I suppose you would call it.

42:44

So you couldn't actually see in or out.

42:45

And you had to go in through two perimeters, I suppose,

42:48

and through a little locked gateway.

42:54

And you then enter into a yard that was blindingly white.

42:59

This was a very bright, hot day.

43:01

And there was the neatly raked gravel,

43:06

I can still see it with a small central command post

43:08

in the center of the field.

43:12

And a small square,

43:14

not much bigger than a hotel bedroom size

43:17

with a wire mesh around it

43:21

and a flat roof on it and it had a cement floor.

43:24

That turned out to be the exercise cage.

43:27

And around it were tattered, all of these plywood huts

43:31

that had been set up and all painted a uniform dark green.

43:35

And I looked at them

43:42

and I thought there's something funny about this.

43:43

It's just something a bit weird.

43:46

And then I realized that none of them had any windows.

43:49

None of these huts had windows.

43:51

And it was like they were sheds, and they were.

43:54

They were very, very basic and they were made of plywood.

43:59

And so they they escorted us in to meet David.

44:03

And as I walked in, David was sitting

44:08

in front of a small table in a very small area.

44:11

And I mean, people have now seen the size of those places.

44:14

You could reach out and touch the walls.

44:16

And there was a smaller area where the prisoners lived.

44:18

But I remember, usually, here's a lawyer,

44:22

he knew I was coming

44:25

and people usually stand up to greet you and he didn't.

44:27

Now, I didn't think anything of the time

44:30

So I reached over and shook his hands.

44:32

But then later I realized they'd actually chained him

44:36

to the floor.

44:38

He was shackled to the floor.

44:39

He couldn't stand up, he couldn't move.

44:41

They had unshackled, his hands.

44:43

They had done that just before we walked in,

44:44

but his feet were shackled on the floor

44:47

and his waist was shackled so he couldn't stand.

44:50

Interviewer

Who's we?

44:53

-

Major Mori was with me at that time.

44:54

And there was also the people

44:57

from the military side escorting us in.

45:00

Interviewer

And how did David Hicks appear to you?

45:04

-

Well, I actually later said that I thought

45:08

that he'd faired pretty well.

45:11

He wasn't doing too badly

45:13

considering what had happened to him.

45:15

He had a by, you know, when I came out

45:18

I knew he'd been mistreated in Afghanistan

45:20

and I knew the way he'd been treated.

45:26

So I thought mentally he'd actually stood

45:28

a great deal of punishment reasonably well.

45:32

I don't think I would have done quite as well as he had.

45:37

So he was certainly showing the effects of it,

45:40

but I was reasonably pleasantly surprised

45:48

to see that he had survived as well as he had

45:52

a lot of violence.

45:54

Certainly we now know hadn't survived

45:55

but I think that was just part of his own capacity to cope.

45:58

Interviewer

And what were you interested in

46:02

in that first day when you met him?

46:04

Kinds of questions that you want to know from him?

46:07

-

Well, the first thing I wanted to do was to find out

46:10

and as a lawyer, is to gather evidence

46:13

and information from him.

46:16

I really want to know what had happened to him,

46:17

where he had been in particular,

46:20

what the allegations against him were

46:22

and whether there was any substance to it.

46:25

I spent most of that first trip,

46:27

and I think we were there two or three days

46:29

taking a statement from him so that we could have

46:31

some information later to be able to compare

46:36

to what was being said about him.

46:39

So really, from my point of view,

46:42

it was to gather as much information

46:44

in the time we could as possible.

46:46

Interviewer

So did you feel like you accomplished

46:49

what you wanted to when you were down there?

46:53

Was it worth the trip?

46:55

-

Well, it was certainly worth the trip.

46:57

Firstly, I hope from David's point of view.

46:59

That was the first time he'd had any outside contact

47:01

with anybody else in the world,

47:05

other than red cross people who had been there.

47:07

So I think just getting there was a significant factor.

47:11

It meant that the process, whatever it was going to be

47:17

was about to start.

47:21

And at that stage they were certainly talking about

47:22

a guilty plea and some arrangement.

47:25

But the problem was that I wasn't convinced

47:29

about the charges of that they were touting

47:32

and nor was I convinced about the outcome

47:36

that the American government was seeking.

47:38

We could actually go back in terms of my first meeting

47:44

with the defense counsel to try and fill you in.

47:47

Mori was a very keen and enthusiastic person,

47:50

but a person who, in my opinion,

47:55

didn't appear to have terribly much experience

47:57

and not a lot of understanding of what was going on.

48:00

And I found that, I remember the first meeting

48:05

after I'd gone back from the Pentagon,

48:08

I met all of the defense lawyers who were there.

48:09

There was about five of them headed by Colonel Gunn.

48:12

And so after sort of a bit of a chat

48:16

it was about lunchtime and I said,

48:17

well, why don't we sort of all get together

48:18

and you can tell me what you've been doing

48:20

for the last six months.

48:21

You've all been here for six months.

48:22

And at that stage, Colonel Gunn excused himself

48:24

and explained that he was a head of the organization,

48:26

but there may be some conflicts of interest

48:29

and that he would excuse himself.

48:32

But if I needed anything I could ask him

48:34

and I needed a plane flight somewhere,

48:37

a hotel booking he would organize it, things happened,

48:39

and I thanked him for that.

48:42

But I found that a little unusual.

48:43

I worked as a prosecutor in Australia

48:45

and defense counsel, of course.

48:47

And even the person who's head of your department

48:49

is the most critical person there.

48:53

They are the ones that are either most experienced,

48:54

the most knowledgeable, the one who makes decisions

48:57

about if you're other prosecutor who we're gonna prosecute

49:00

what are you gonna prosecute.

49:03

You go to them, go, okay, this is what we're doing,

49:04

but no he was like, "No, no, no, no, no.

49:07

I don't want to be involved."

49:09

And I felt that these people had not,

49:11

in six months, had really any plan or any idea

49:13

of where they were going to go.

49:16

That was probably also a product of the fact

49:18

they had no idea what the hell was happening

49:20

and what was going to happen.

49:22

And I really didn't have any guidelines.

49:23

They had been assigned particular clients,

49:26

but they hadn't been able to go down and see them.

49:29

They had had no contact with them.

49:31

They were really probably just sitting in limbo

49:34

to be honest, with not much to do.

49:36

Interviewer

Did you get to meet the prosecutors too

49:40

when you went down there?

49:42

-

Yes, I did.

49:44

On various times, I did meet the prosecutors

49:45

and ultimately I was present

49:47

during some of the early Hicks hearings in Guantanamo Bay.

49:50

And of course, he was the first person

49:54

to be brought before one of the military commissions.

49:55

So there was a great deal of press interest

49:58

and a great deal of interest in Australia.

50:02

And that's why I say that if the Rasul case at that time

50:05

had also been the Hicks case.

50:08

I think it would have,

50:09

I mean, the profile was very large in Australia.

50:10

There was no one in Australia that hasn't heard

50:11

of David Hicks and Guantanamo Bay.

50:14

And that's been the case some very very early days.

50:17

Interviewer

One question about David,

50:22

do you know if he was in isolation

50:24

while he was in Guantanamo?

50:26

-

He was in isolation and that was his greatest concern

50:27

and obviously my greatest is concern as well.

50:32

It was okay when we first started, it wasn't so bad

50:35

because they hadn't introduced the video surveillance.

50:38

And so there was a person in his room at all times,

50:41

and David's not a bad person.

50:46

And he was quite friendly and had a lot of things in common

50:48

that he liked with the people who were guarding him.

50:52

And I think he established some reasonable relationships.

50:55

He could speak their language.

50:58

He liked hunting and fishing and things like that

51:00

that these people in the military did as well.

51:02

So they had things in common to talk about.

51:04

So his days of being in isolation weren't so bad

51:06

because there were people coming in

51:10

and sitting in the cell alongside him

51:12

on a single plastic chair and he sat on his bed

51:14

and they obviously talked.

51:16

When it became really concerning

51:18

was when they took that person out

51:20

and put in video surveillance.

51:22

And at that stage, he was in complete isolation.

51:24

And to counter that we organized for Mori to go down there

51:28

on a regular basis and just really go and keep him company.

51:31

And there was a great deal of desperation

51:35

in the thought that you will be left there

51:40

for weeks or months at a time with only people coming in

51:43

and putting food in and walking out again

51:46

and not talking to you.

51:48

I think that was probably the cruelest thing that they did.

51:49

Interviewer

Was that your concern

51:52

or did David express that concern to you?

51:54

-

David certainly expressed that concern.

51:56

And over the time I could see the deterioration

51:58

in his mental state being caused by that isolation.

52:00

And it was obviously impacting on others

52:06

because each of these huts had two cells in them.

52:08

And occasionally I would hear while I was there

52:12

very strange animal noises and banging coming from next door

52:14

that were certainly the sounds

52:19

of a very mentally disturbed person.

52:21

Interviewer

So after you met David the first time

52:25

can you tell us what happened?

52:27

-

We then went back to New York

52:29

and at this stage the Rasul case must have been proceeding.

52:33

And the problem I had was that Margulies and Ratner

52:39

on the Rasul case had decided ultimately

52:44

in the Supreme Court to act for all the parties

52:49

that were there.

52:52

And originally they had discussed doing that

52:54

and I said, no, no, no.

52:58

You let Clive act for the rest of them you act for David

52:59

because there'll be a problem.

53:02

And they'd forgotten that some year or two later

53:04

and had signed as acting for all of these people.

53:08

And of course, when we got to Guantanamo Bay

53:11

we then had access to some of the interrogation materials

53:13

which were quite interesting in a number ways.

53:17

The first one was that clearly they were being interrogated

53:22

by people who had no idea what they were talking about.

53:25

If these were high value prisoners,

53:28

the people interrogating and probably should have known

53:31

where the towns in Afghanistan were or Pakistan

53:33

or how to spell them, or have some basic knowledge.

53:36

It seemed to me that there seemed to be

53:39

endless repetitive interrogations that advanced nothing,

53:43

provided no new information,

53:47

had no new angles of questioning,

53:49

but merely questioning for questioning sake.

53:51

And I looked in one record,

53:54

I saw showing the number of interrogations

53:57

that took place there

54:00

multiplied by the number of people there.

54:01

It showed there had been at that time

54:03

40 interrogations for each person.

54:06

And certainly the ones I saw from David and others,

54:09

because what they would do is they were trying

54:13

to get the people in Guantanamo Bay

54:16

to essentially dob in each other.

54:18

What about you?

54:20

What about...

54:21

And the experience of the Tipton boys

54:22

was a product of that.

54:25

I'm sure you've read their story,

54:26

and that's exactly what was happening.

54:29

So there was this cross-linking

54:32

because David and these other guys could all speak English.

54:33

They had obviously spoken.

54:36

And so there was various comments.

54:37

And so it was decided that Michael,

54:40

it was decided I needed to find another U.S. council

54:44

to act for David and they recommended Josh Trytell.

54:48

And so I went back to New York at that stage

54:54

to sort that problem out and to meet Trytell.

54:56

Interviewer

And then after you met with him,

55:01

you went back to Australia?

55:04

-

Then we came back to Australia.

55:05

At that stage, there was still discussions

55:07

about whether David would enter a,

55:09

plead guilty to something.

55:13

I can remember at that time I was still quite suspicious

55:16

of Major Mori

55:19

who seemed to be quite enthusiastic about a guilty plea

55:21

And I think that was probably more within his expectations,

55:23

but certainly wasn't within mine because I talked to people

55:28

about war crimes and the charges were just complete rubbish

55:32

as far as I was concerned.

55:36

-

Why did he want

a guilty plea, do you think?

55:37

-

Look, I'm not sure.

55:40

I don't know whether that was, you know,

55:41

but certainly at that stage,

55:43

and I can remember sitting with David on the very last day,

55:45

I said to him, look, you know, this bloke's gonna come down

55:47

and I'm not gonna be here.

55:50

I said, don't do any deals with him

55:51

unless I'm sitting here alongside you.

55:53

And I understand you might plead guilty to get out of here,

55:56

but be careful.

55:58

Interviewer

So did you go back to Guantanamo

56:02

several times?

56:05

-

I ultimately did five trips to Guantanamo Bay

56:06

and during that period there was a court hearing.

56:10

And on one occasion I was able to take his father

56:15

and Bev Hicks with me.

56:22

And on another occasion I took his sister as well.

56:24

So his system managed to visit him there.

56:28

Interviewer

And how did that happen

56:31

that you were able to bring family members to David?

56:32

-

Well, I'd pressed the Australian government

56:34

that they should be allowed to attend.

56:37

And obviously the Australian government

56:40

put the pressure on the Americans to facilitate it.

56:41

And I found a person from Sydney who was willing to fund it

56:45

because they obviously didn't have the money

56:49

to fly over there,

56:53

but I was lucky enough that a person came forward

56:54

and offered some money to do that.

56:58

And so we were able to do it.

57:01

Interviewer

And during the five visits

57:04

did you council David not to plea,

57:06

or were you involved in the plea agreement or?

57:08

-

No, I was involved in the plea discussions

57:11

at various times but none of them came near

57:14

what I thought was a reasonable deal to plea

57:17

to get out of Guantanamo Bay,

57:20

because, really, that's how I saw it.

57:21

The only reason you would plead guilty to the charges

57:23

would be to escape the imprisonment.

57:26

And I can tell you that one of the things I did do,

57:30

and this is not widely known,

57:33

it's not publicly known at all,

57:35

is I gathered all of the information I had

57:37

about what the Americans said David did,

57:40

what the Australians did.

57:42

The Australian Federal Police had also investigated

57:44

everything David did during his entire life

57:46

as far as I could see.

57:49

And they did a very good job.

57:50

Those boys were very thorough, very professional,

57:51

and their material was probably the most damaging of all

57:54

(chuckles) in terms of what time of what David,

57:57

because they had everything and everybody

57:59

and I went there and they had the lot.

58:01

So I took all the material we had

58:06

and I went and saw Grant Neiman at Flinders University

58:07

and went, okay, Grant, this is everything that we've got.

58:10

What I'd like to do is for you to find a crime

58:15

that David Hicks has committed

58:18

and then I'd like to charge him in Australia

58:20

with that crime and apply for his extradition

58:23

back to Australia.

58:25

The reason being the Australian government was saying,

58:27

"Oh no, we can't bring him back here

58:29

because he's not committed any offense

58:30

known to Australian law"

58:32

Okay, well that's right 'cause he hasn't committed

58:34

any offense.

58:35

And then I thought, well, why don't we see

58:36

if there is something that we could charge him with?

58:39

And Grant is a very, very serious man.

58:41

He said, "Okay, I'll look at this.

58:46

And if there is something I'll assist you,"

58:48

in essentially would have been a private prosecution.

58:51

But if it was launched in Grant's name, as the complainant,

58:54

he's a lawyer of very high standing.

58:58

I mean, at this stage I'm the terrorist lawyer.

59:01

In fact I got an email,

59:03

I got a letter address to me one day,

59:05

Stephen Kenny, terrorist lawyer, Australia. (laughs)

59:07

Interviewer

From in Australia or from in America?

59:10

-

No, that was from Australia. (laughs)

59:12

But it did arrive on my desk

59:14

with the amusement of the staff, you know,

59:15

here you are, you terrorist lawyer.

59:17

But Grant had been sort of a chief Commonwealth prosecutor

59:22

and had a great deal of respect with the courts.

59:30

And the court, if he turned up there with a valid complaint,

59:32

the court would have taken that incredibly seriously.

59:36

It would not have been a stunt.

59:38

And they might've thought that I might pull

59:41

a stunt like that because by this stage

59:43

I'd pulled so many media stunts.

59:45

Like one Sunday I'd gone out when I knew the Prime Minister

59:48

was going to be in Adelaide down here on the plaza.

59:52

I got one of my friends who I knew had worked in a factory

59:55

and said, mate, I need a cage.

1:00:00

And he's, "What do you want a cage for?"

1:00:01

I go, come on, I know you got the gear out there.

1:00:03

Can we come out and can I gonna borrow your welder

1:00:05

we make a cage?

1:00:07

And I explained to him that what we were going to do

1:00:08

is set up a protest out here with Terry in a cage

1:00:10

out in front of the then ruling Liberal Party

1:00:15

convention that was being held at the plaza next door.

1:00:18

And so I went out there and I cut up this galvanized iron

1:00:21

and welded up a cage, and I then bought it on the trailer

1:00:27

down to the front out here and carried it up.

1:00:30

We didn't have a permit for anything.

1:00:32

I was like, forget it.

1:00:34

Just let's get there.

1:00:35

And so John Howard, and all the members of the government,

1:00:36

had to walk past it while I've got all the media there

1:00:41

and I've got Terry dressed in orange in the cage. (laughs)

1:00:43

Interviewer

How did that work?

1:00:49

How did that?

1:00:50

-

It generated a lot.

It actually generated a lot of publicity

1:00:51

and created copies.

1:00:54

There was a guy in Sweden that then set up a cage.

1:00:56

And I think this guy his son was in Guantanamo Bay,

1:00:58

He lived in the cage in the middle of town for ages.

1:01:03

We recreated it in New York and others did that as well.

1:01:06

So it became a very powerful tool that people could then see

1:01:11

what was going on.

1:01:15

And that was purely a media stunt

1:01:19

but it was designed to put pressure on the government

1:01:21

and that sort of stuff ultimately worked.

1:01:24

Interviewer

So can you go back to-

1:01:28

-

Go back to Grant?

1:01:30

-

Yeah.

1:01:31

-

Yeah, I know, I guess

there were so many stories in this.

1:01:32

I apologize.

1:01:33

So Grant went through it very carefully.

1:01:36

So we had everything I had from David,

1:01:38

everything from the Australian Federal Police,

1:01:40

which was a lot, and everything the Americans had,

1:01:42

which was so confusing and just so all over the place.

1:01:45

And with Grant (indistinct), he said,

1:01:49

"Look, there's not a crime known to Australian law

1:01:50

this man's committed.

1:01:52

He said, there's nothing in it.

1:01:54

So I can't prosecute him 'cause there's no crime.

1:01:55

I went, oh, that's bad luck, (chuckles)

1:01:58

because it would have been, again, a very powerful thing.

1:02:00

If he had actually been extradited back to Australia,

1:02:04

we would have just dropped the prosecution like,

1:02:08

thank you very much, we don't wish to do anything

1:02:09

about it anymore.

1:02:11

And he had been back in Australia

1:02:13

then they would have to try and extradite him

1:02:15

back to the United States, but.

1:02:17

Interviewer

But wouldn't it be powerful

1:02:19

just to have him say you can't find a crime

1:02:20

in all the evidence?

1:02:23

-

Yeah, it was, but it wasn't in a sense

1:02:24

because the Australian government were already saying that.

1:02:27

So no one was particularly interested

1:02:30

because they all assumed that that was actually the case.

1:02:31

But what I was particularly looking at was,

1:02:35

has David Hicks committed a war crime?

1:02:37

And the war crimes are an international common law

1:02:40

set of values.

1:02:46

They're the same crimes.

1:02:47

War crimes are the same in the United States

1:02:48

as they are in Australia as they are anywhere.

1:02:50

And well, they used to be.

1:02:52

I think the Americans are now different.

1:02:54

So that's why I wasn't terribly keen on an issue

1:02:57

of David pleading to something.

1:03:03

And in fact, I had a major falling out

1:03:06

with the American lawyers,

1:03:08

Josh Trytell and Mori over that whole issue.

1:03:10

And in fact, after his sister came back

1:03:16

and we'd had the discussion over there

1:03:19

about David pleading guilty

1:03:21

and (indistinct) was well, "I it anything wrong?"

1:03:22

And I mean, at this stage, I'd done the exercise with Grant.

1:03:25

So I knew that, although I'm not a war crimes expert

1:03:28

and I don't ever pretend to be,

1:03:31

I knew somebody who was, who had looked at the evidence

1:03:33

and I'd sought his advice and assistance

1:03:35

It was very clear that there was no crime

1:03:38

that he had actually committed.

1:03:42

So I was quite confident of my position.

1:03:45

And I had this argument about whether David

1:03:48

should plead to something or not.

1:03:52

And David himself had said,

1:03:55

"Look, I'm prepared to stick this out.

1:03:56

I don't want to plead to something

1:04:00

and at this stage. I can cope with what's going on.

1:04:02

And I'll stay here until my name's cleared."

1:04:04

Mori was of the line that,

1:04:10

"Oh, look, just plead to something and go back to Australia

1:04:12

and people will forget all about it."

1:04:15

And I went, mate, you have got no idea.

1:04:17

You have got no idea at all.

1:04:20

This is not something that anyone's gonna forget about.

1:04:21

I said, look, David is gonna have to wear this,

1:04:24

whatever happens, for the rest of his life.

1:04:26

And it's better to spend a bit more time now

1:04:28

and fight it than to carry it for the rest of his life.

1:04:31

And that's essentially what's happened now.

1:04:36

He's been labeled as a convicted terrorism supporter,

1:04:40

because he was charged with

1:04:45

supporting a terrorist organization,

1:04:47

which, as you know, is a war crime that does not exist.

1:04:51

But when I came back, I got an email from Mori

1:04:55

that has now disturbed me in a number ways

1:05:00

about accusing me of attempting to manipulate David

1:05:04

using his family,

1:05:08

and I had no idea what he was talking about.

1:05:09

So I contacted David's sister and said,

1:05:13

have you been in touch with Mori?

1:05:15

What have you been doing?

1:05:18

She just went, "Ah, I sent him an email last week

1:05:18

to send on to David."

1:05:21

I said, what did he say in that email?

1:05:23

She said, "Well, I just said that I supported his position.

1:05:24

That if he didn't want to plead to something

1:05:28

just to get out of there that we would support him in that."

1:05:30

And I went, well, that's fine.

1:05:35

And so that was part of a larger rift

1:05:39

that I was having with Mori.

1:05:42

And just to fill in some of that history,

1:05:44

and where I think the American system let David down,

1:05:48

when I read the rules in relation to the commissions,

1:05:51

it enabled the secondment of my second military person

1:05:55

to assist in the defense.

1:05:59

And so I went to Mori and said,

1:06:02

look, I got this guy called Grant Neiman back here.

1:06:04

I went to Neiman I said,

1:06:07

listen, were their Americans with you over there?

1:06:08

And he says, "There was about a heap of them

1:06:10

working over there."

1:06:11

Okay. All right.

1:06:13

So I went to Mori and said, look, we need to find

1:06:13

an American who's been working in war crimes

1:06:18

to come and join us to act on the defense.

1:06:20

"Oh no, we don't need anyone."

1:06:24

He just refused point blank to do that.

1:06:25

And I kept pressuring him.

1:06:28

No, no, I said, look, you and I know nothing

1:06:29

about war crimes, we're useless.

1:06:30

We know nothing.

1:06:33

We need and can have somebody who really knows.

1:06:34

And he eventually asked a friend of his

1:06:36

who was a lecturer at one of the colleges

1:06:38

for the jag people to join

1:06:41

and they refused to release him.

1:06:43

And then the next time I turned up over there,

1:06:44

Mori had appointed some guy who was junior to him

1:06:47

as the second person.

1:06:50

And I was like, who is this guy?

1:06:52

What's his experience?

1:06:55

I mean, he had a law degree, but that was it.

1:06:56

I just felt that that was a real missed opportunity

1:07:01

that we could have had somebody with some serious expertise.

1:07:06

Interviewer

But what I'm hearing

1:07:11

is that the conflict occurred between you and Mori

1:07:12

and where was David in all this?

1:07:17

'Cause what we had read in the media

1:07:20

was David wanted to have, he was willing to sign anything

1:07:21

just to get him out.

1:07:24

-

At the end, David certainly was willing to sign

1:07:25

and did sign anything essentially to get out.

1:07:28

I have no doubt that by the time that he left.

1:07:30

There's a little more story in that bit.

1:07:35

And my concern was that there was this,

1:07:40

there was a lot of pressure on David.

1:07:42

The Americans wanted some success and they wanted it.

1:07:44

It was an Australian white boy.

1:07:48

It wasn't some guy from the middle east

1:07:50

that they had shafted.

1:07:52

The only guy they had was the driver for Osama Bin Laden.

1:07:53

(chuckles)

1:07:57

They didn't prosecute the drivers in Nuremberg.

1:08:02

This is just rubbish.

1:08:06

And there was obviously this attraction to David Hicks

1:08:07

essentially certifying that these were legitimate tribunals.

1:08:12

He's had proper defenses.

1:08:16

He's had proper lawyers.

1:08:18

And yeah, there was another thing I fell out with Mori over

1:08:21

because we knew that David Hicks had been taken out

1:08:27

to one of the ships out in the Indian Ocean,

1:08:30

the Pilou I think it was.

1:08:32

But then we also knew, and this is now publicly being told,

1:08:34

that he was taken off the ship, flown back onto land

1:08:38

and beaten on several occasions.

1:08:41

Interviewer

By Americans?

1:08:44

-

By Americans.

1:08:45

And this came out-

1:08:47

Interviewer

Before he went to Guantanamo.

1:08:48

-

Before he went to Guantanamo.

1:08:49

And I don't know whether you understand

1:08:51

the significance of that,

1:08:53

but the significance is an American ship is American soil.

1:08:53

And if you're assaulted on an American ship,

1:08:58

you can take action in an American court.

1:09:00

But if they fly you out of there,

1:09:03

and this stuff became more significant to me

1:09:05

after the revelations of that brigade

1:09:08

and in that brigade who got prosecuted?

1:09:10

Did they prosecute the Generals?

1:09:12

No, no.

1:09:14

The cell guard got prosecuted.

1:09:15

Interviewer

Were was he taken

1:09:18

when he was taken off the ship?

1:09:19

-

He didn't know.

1:09:20

All he could tell was probably he went to an airfield,

1:09:21

the echoes, because they were blindfolded.

1:09:24

There was a number of them

1:09:26

and I'm not sure he knew how many there were.

1:09:27

And they would be kicked and beaten

1:09:28

and those people walked up and down the line,

1:09:30

you could hear them thumping and kicking and doing that.

1:09:32

And we knew that that had happened and he had reported it

1:09:36

to the Red Cross and it would have been documented.

1:09:40

Now the significance of that was that he's on a ship.

1:09:44

The ship is headed by a captain who's quite high up

1:09:49

in the military rankings.

1:09:52

To take a prisoner, it's not like taking him out of the cell

1:09:55

beating him there.

1:09:58

To enable the transfer of a number of prisoners

1:09:59

onto a helicopter back into land to be beaten,

1:10:02

someone has given an order for that to occur

1:10:05

and there would be documents.

1:10:09

And we knew the dates because we were able to tie it

1:10:10

to when the Australians had visited him on that same ship.

1:10:13

So he knew that within, I can't remember,

1:10:16

a couple of days before the Australians turned up

1:10:18

or a couple of days after, that, so we had the date

1:10:21

and we all needed was then to look at the aircraft movement

1:10:24

of who went where and to get that documentary record,

1:10:28

which I can never get Mori to show any interest in

1:10:33

start subpoenaing those documents.

1:10:35

Because that meant that if you've got a captain of the ship,

1:10:38

obviously it wouldn't have been the captain's decision

1:10:41

to do that.

1:10:43

It would have been someone above him.

1:10:44

So now you're talking generals.

1:10:45

So some general gave that order for that to occur,

1:10:46

and that's where I was looking for.

1:10:50

I was looking for the general.

1:10:51

Interviewer

Why would Mori be interested

1:10:53

in that information?

1:10:55

-

I have no idea.

1:10:57

He wrote a couple of letters asking for the documents,

1:10:59

never got them and that was about the end of it.

1:11:01

But I always felt that that was a significant part

1:11:03

of David's defense, that we could use that

1:11:05

to, again, leverage a reasonable outcome for him

1:11:09

Interviewer

And so since David ultimately signed

1:11:13

to something that.

1:11:17

-

Well, there was a little more to it too.

1:11:19

I don't know if you know what happened to me

1:11:21

in the end of the day.

1:11:22

Sometime after I'd had all a number of arguments

1:11:24

with Trytell and Mori,

1:11:28

I mean, my relationship was quite poor with them.

1:11:31

And I had a phone call from Trytell

1:11:34

to say that the Australian government would not negotiate

1:11:38

on David Hicks's release whilst I was a member of the team

1:11:43

because they didn't respect me.

1:11:47

Interviewer

Could they meaning the-

1:11:49

-

The Australian government.

1:11:50

I said, well, no.

1:11:52

They don't respect me, they hate my guts.

1:11:53

But that's fine.

1:11:54

And so they wanted me to stand aside and I said,

1:11:57

look, you know, no, actually they didn't put it that way.

1:12:02

They didn't want me to stand aside,

1:12:04

they wanted me to find someone else to assist

1:12:05

in the negotiation for the Australian government.

1:12:07

And I was quite prepared to do that.

1:12:09

And there were some very senior well-connected people

1:12:11

on the Liberal Party side who were lawyers

1:12:15

but were seen as supporters of the Liberal Party

1:12:18

that I knew were supporters of what I was doing

1:12:21

because they realized it was wrong

1:12:24

and would have been prepared to do it.

1:12:26

And so I recommended these people,

1:12:28

but then it became clear that they wanted me to actually,

1:12:31

they were gonna sack me.

1:12:34

And I said, well, I'm not gonna do that

1:12:36

unless I talked to David.

1:12:37

And the next day they simply sent me

1:12:39

a signed authority from David,

1:12:40

which had obviously had some weeks before and saying

1:12:42

your services are no longer required.

1:12:46

And-

1:12:48

-

Do you know why David

signed that?

1:12:49

-

Yes, quite clearly.

1:12:51

They told him that he didn't need me,

1:12:52

that I wasn't doing any good.

1:12:55

I was holding up his case.

1:12:56

I'm not sure what they told him,

1:12:58

but I don't blame David for a moment on that.

1:13:01

But in fact, what actually happened,

1:13:04

I'm now told through political connections

1:13:06

is at that stage we were facing

1:13:09

a federal election in Australia.

1:13:12

The polling was showing that the David Hicks issue

1:13:14

had a 2 to 3% vote changing position.

1:13:17

And that the Howard government were under pressure

1:13:23

and looked like they might lose the election.

1:13:26

They ultimately did, but Howard knew that he needed

1:13:28

to fix the Hicks problem.

1:13:31

And I'm told that I was seen by Howard personally

1:13:33

as a problem?

1:13:38

He was quite right

1:13:39

I mean, this I doubt,

1:13:40

I was the problem.

1:13:41

-

You were the problem

because you wouldn't support?

1:13:42

Because I wouldn't support a guilty plea.

1:13:44

I was prepared to fight.

1:13:46

Well, David was capable of doing that.

1:13:48

I mean, every lawyer is faced many times in their career

1:13:50

with an option with their client.

1:13:54

If you're doing criminal law,

1:13:56

pleading guilty to a crime that they didn't actually do

1:13:57

because the penalty is going to be less

1:13:59

than actually fighting it and the risk is a lot less

1:14:02

of doing a deal.

1:14:05

And so you have to compromise,

1:14:06

even though occasionally you have clients

1:14:08

who actually do believe that they're totally innocent.

1:14:10

And ultimately I of course would have been sensible

1:14:12

and reasonable about it.

1:14:15

I wasn't there.

1:14:16

I was only there as long David was able to cope

1:14:17

with the pressure that was being put on,

1:14:20

because I believe ultimately they would have had

1:14:22

to release him.

1:14:23

But I'm told that Howard had issued the order

1:14:25

that they had to get him back here before the election,

1:14:29

and I was seen as a stumbling block to that.

1:14:34

And the other problem was that once he came back here,

1:14:37

that I would then of course throw a very large party

1:14:39

and there would be a lot of celebrating.

1:14:42

And it would look, you know,

1:14:44

and I would say very unkind things about Mr. Howard,

1:14:44

which of course I would have.

1:14:47

So John Howard was a very very astute politician

1:14:49

and he was right in all of those counts.

1:14:52

So I was told that.

1:14:54

I knew at the time it was political

1:14:56

of the Australian government.

1:14:58

They didn't respect me. (chuckles)

1:14:59

They hated me.

1:15:02

It wasn't a matter of respect.

1:15:02

I was actively disliked.

1:15:05

Interviewer

How did you feel about being removed

1:15:07

from the (indistinct)?

1:15:09

-

I was very concerned about it.

1:15:10

I was very upset.

1:15:11

I felt that David was then in a very risky position,

1:15:12

not having what I thought was an independent voice.

1:15:17

But they then came and appointed a guy called David McCloud

1:15:23

(cough)

1:15:28

from Adelaide to represent him.

1:15:29

Now, David McCloud,

1:15:32

so you understand the politics of Australia,

1:15:34

is a member of the Liberal Party.

1:15:36

He was a member of Downer's own political branch.

1:15:39

And Alexander Downer was the Foreign Minister at that stage

1:15:44

who particularly disliked me.

1:15:46

And people have reported back to me what he'd said about me,

1:15:47

and there was a lot of swear words in there.

1:15:53

And if somebody reported back,

1:15:55

what I'd said about Downer was probably much the same.

1:15:58

And McCloud was I a reservist.

1:16:03

And I think it was a captain in the military reserves

1:16:07

here in Australia, but he's a good lawyer.

1:16:10

And I wasn't so concerned.

1:16:13

I was quite concerned initially that they appointed him.

1:16:15

Thank you.

1:16:19

But ultimately he was, I think, a good choice.

1:16:20

Interviewer

Did you speak to the parents of David Hick

1:16:27

and were you willing to just, you had no choice.

1:16:29

You went to just go on?

1:16:32

-

Mori and Trytell told me not to talk

1:16:34

to David's parents about that.

1:16:37

I was banned from that.

1:16:39

I completely ignored that I had a very Frank

1:16:41

and open discussion with him about it.

1:16:43

But the reality was that if I made some big fuss about it,

1:16:47

that I would do more damage to David than anything.

1:16:52

And so this has been going on for a while.

1:16:57

And then one day it became public

1:16:59

because one afternoon had three journalists

1:17:03

from different outlets ring me up to say,

1:17:06

"Hey, I hear you've been sacked from the Hicks case."

1:17:08

I went, how'd you find that out?

1:17:10

They said, "Oh, Prime Minister's Office in Canberra."

1:17:11

And so they leaked the word

1:17:15

'cause it obviously wasn't happening fast enough.

1:17:19

And so I contacted Boyer,

1:17:21

I went, hey guys, this is about to become public.

1:17:22

You need to have a strategy to deal with this

1:17:25

because I'm not gonna say anything.

1:17:27

We're off the case, end of story,

1:17:29

as far as I was concerned.

1:17:30

And it was, it was a large media storm

1:17:32

generated by the the Australian government essentially.

1:17:35

And I decided that I would just not say anything.

1:17:40

I would handover files to McCloud

1:17:43

and assist him as much as I could.

1:17:46

And McCloud, I think, did a very good job for David.

1:17:50

He ran into the same difficulties I had

1:17:54

with Trytell and Mori,

1:17:58

and had some very acrimonious views.

1:18:00

And when he'd go over,

1:18:04

he'd come back and have lunch with me

1:18:05

and we'd compare stories about what they told him

1:18:07

or what had happened to me.

1:18:10

Interviewer

Do you ever talked to David about this

1:18:11

once he got out?

1:18:14

-

Not directly.

1:18:16

I's a subject, I've made it very clear to him

1:18:17

that I believe that he was in a position with no choice

1:18:20

and I think he made the right decision at the time

1:18:25

because if he needed to get rid of me to do a deal

1:18:28

to get out of there,

1:18:30

then that's an entirely reasonable thing to do.

1:18:32

I don't have a problem with that.

1:18:34

But.

1:18:37

Interviewer

Once you have thought about signing

1:18:39

a plea agreement under duress,

1:18:40

would you consider that under duress where you?

1:18:43

-

Absolutely.

1:18:46

At that stage, he's been in Guantanamo Bay for five years

1:18:47

and a lot of it in solitary confinement.

1:18:49

Out of sight for a lot longer, you know?

1:18:51

No, seriously, I mean, I say that jokingly,

1:18:55

but that was a really serious thing

1:18:57

for that man's mental health.

1:19:00

I don't believe, and I saw over the time I was there,

1:19:01

a deterioration in his mental capacity,

1:19:06

that his capacity to cope was becoming less and less.

1:19:08

And certainly with the pressure on him to plead,

1:19:14

that's duress and there's absolutely no doubt

1:19:19

that he succumbed to that duress.

1:19:23

Interviewer

And how did Australia react

1:19:26

when he finally came home?

1:19:28

-

Well, it was a bit of an anticlimax, really.

1:19:30

There was a great deal of media interest

1:19:32

and all the secrecy and general carry on to pretend

1:19:34

he was a dangerous terrorist.

1:19:38

I mean, look, if it was,

1:19:40

it was this whole thing that they did

1:19:41

with Hicks in particular.

1:19:45

For example, when new guards would come in,

1:19:48

they would be told that Hicks was a black belt in karate,

1:19:51

that he could kill you just by looking at you.

1:19:56

If you went near him, you'd be dead.

1:19:58

There was all this sort of-

1:20:01

Interviewer

How do you know the guards were told those?

1:20:01

-

Because the guards told David.

1:20:03

And so they would fear him.

1:20:06

And then after a while I realized he's just an ordinary guy

1:20:08

and actually he doesn't have a black belt in karate,

1:20:10

and no, he never killed anybody

1:20:12

and doesn't know how to kill anyone, really.

1:20:15

And it would change.

1:20:19

And it was that they did this rotation of guards

1:20:20

so that, you know, and they quite properly do it

1:20:22

so they don't ever become friendly with the prisoners,

1:20:26

do it like normal jails.

1:20:28

But they very clearly realized that David was just bored.

1:20:29

He was an ordinary bloke who was on search

1:20:33

for a bit of adventure and was certainly having

1:20:37

a very fun adventure.

1:20:39

It was a very interesting time,

1:20:40

but he was no intention of killing anyone.

1:20:42

And one of the Australian ministers came out here

1:20:46

and said that he was one of the 10 most dangerous men

1:20:50

in the world.

1:20:54

And I responded to the press by saying,

1:20:55

well, the world must be a very safe place if David Hicks

1:20:57

is in the top 10. (laughs)

1:20:59

That was the sort of atmosphere

1:21:02

the Australian government were creating.

1:21:04

I've no doubt directed from the U.S.

1:21:06

and they were very willing participants

1:21:07

in his incarceration.

1:21:11

But it does show, I mean, this whole thing just shows

1:21:12

the political nature of Guantanamo Bay that you have.

1:21:15

I mean, the British, we thought David would be going home

1:21:18

when the Brits went.

1:21:21

We thought that the Australian government

1:21:22

would no longer stand it, but we'd underestimated how

1:21:23

to capacity to suck up to George Bush,

1:21:27

and that was really disappointing, I might say that.

1:21:30

There's a few little bits in there

1:21:36

that Howard was actually in the United States

1:21:38

on September 11.

1:21:41

On that morning he was due to address

1:21:42

a joint session of the Congress.

1:21:44

And so he was across the road in a hotel

1:21:48

from the White House.

1:21:51

Now, after September 11th happened,

1:21:52

George, he had to get back to Australia.

1:21:55

I mean, they flew the Bin Ladens around America,

1:21:57

but Howard, the Prime Minister of Australia,

1:22:00

couldn't get on an Australian military jet

1:22:02

and fly back to Australia.

1:22:05

He was stuck in there.

1:22:06

And it wasn't until after he got back

1:22:08

and about a week later that he finally got a phone call

1:22:10

from George Bush, who's that stage

1:22:13

rounding up the coalition of the willing.

1:22:15

And Howard then really went out of his way

1:22:18

to be the number one supporter of Bush,

1:22:21

which has seen us take a lead role

1:22:24

in Afghanistan and in Iraq.

1:22:26

Places, you know, maybe Afghanistan's understandable

1:22:30

considering what happened, but Iraq?

1:22:33

Why were we there?

1:22:35

Interviewer

And you think if Howard

1:22:36

had been a different type of president

1:22:38

or a different opinion about this

1:22:40

Hicks would have been released?

1:22:42

-

Correct.

1:22:44

If he had been Blair standing up for some principle

1:22:45

and some right, and I might say it wasn't just Howard,

1:22:48

It was also Ruddock, his Attorney General

1:22:51

who was extreme right wing,

1:22:54

and it was Downer.

1:22:56

I mean, they were all hitching their wagon

1:22:57

to the U.S. star, which brought Howard lot of kudos.

1:23:00

George Bush turned out here in Australia later on

1:23:04

and addressed the joint houses of parliament

1:23:09

in which Habib was still in jail at that stage.

1:23:11

And I was there because the Greens invited myself

1:23:16

and Habib's family to be their guests for the day.

1:23:19

And Habib's son stood up and abused George Bush

1:23:22

and got carded out for it as well, so.

1:23:25

Interviewer

I think that that's crazy.

1:23:29

I'm gonna stop.

1:23:30

Did you have any questions (indistinct)?

1:23:31

Woman

Generally most of the lawyers said that they felt

1:23:37

that they were not getting adequate information

1:23:43

from the U.S. government,

1:23:46

but I'm not hearing that.

1:23:48

Letters were redacted.

1:23:49

They had trouble acquiring information.

1:23:50

Was that also the case here?

1:23:53

-

The issue of getting information

1:23:57

out of the U.S. government I think is highlighted

1:23:58

by the lack of capacity to get anything about the Pilou,

1:24:00

which, I mean, the expectation of getting

1:24:04

any other information, there was just no,

1:24:07

I perhaps had no expectation because I realized

1:24:10

we were not going to get any.

1:24:12

And so it was pointless.

1:24:14

And we were very much at the forefront

1:24:16

of what was happening.

1:24:18

All the lawyers that came later,

1:24:19

there were systems in place for it.

1:24:21

There was nothing when we started, there was no system.

1:24:23

There was no escort.

1:24:26

They're all kept out on the other side of the island,

1:24:28

escorted everywhere they went to

1:24:30

within an inch of their lives.

1:24:32

But the same was with the process and procedure.

1:24:35

Quite frankly, the Americans really didn't have

1:24:38

terribly much.

1:24:40

I had no expectation of getting anything

1:24:41

because what I saw was in such poor quality

1:24:43

that I couldn't believe that they really had anything else.

1:24:45

Interviewer

Did the Australians share

1:24:48

what they had gotten?

1:24:50

You said that you did a very good job

1:24:51

on their own investigation.

1:24:52

They shared that with the Americans (indistinct) use it?

1:24:53

-

They gave it to the Americans,

1:24:55

and that's what the Americans would use to get stakes.

1:24:57

-

Really?

1:24:59

-

Yeah.

We got that stuff from the Americans.

1:25:00

Yeah, they got in there and interviewed Hicks

1:25:03

and took a very long and detailed statement from him

1:25:06

of good quality.

1:25:09

Mind you, that was after Hicks had a little treatment

1:25:11

and that was after his trips off the Pilou.

1:25:13

So he was prepared to talk.

1:25:16

Interviewer

Did the Australian government

1:25:18

interrogated Hicks and got better information

1:25:19

than the U.S interrogators?

1:25:21

-

Oh, absolutely.

1:25:23

And I think it was just a question of the quality

1:25:24

of the individuals involved in the matter.

1:25:27

The Australian Federal Police put on

1:25:30

an excellent person on it.

1:25:34

He was a person who previously worked in Adelaide

1:25:37

and was considered to be a very senior capable person.

1:25:41

Woman

Second question.

1:25:48

Did he experience any personal threats

1:25:50

or professional fallout because of his his participation

1:25:53

in the David Hicks case?

1:25:59

-

Only twice

1:26:01

Once when I'd made a point of pointing out

1:26:04

that I thought the military should take a greater interest

1:26:07

in the David Hicks case,

1:26:14

because they might care to realize the implications

1:26:16

for their service men and women.

1:26:21

That if this was how the Geneva Convention

1:26:24

was being treated, that they need to understand that

1:26:29

if America interprets the Geneva Convention in this way,

1:26:34

our ally of the highest standing,

1:26:37

one of the leading democratic countries in the world,

1:26:42

how did they expect other countries

1:26:45

that we may go to war with in the future?

1:26:48

What standard?

1:26:50

Did they want the Guantanamo Bay standard

1:26:51

or did they really want the Geneva Convention?

1:26:54

And some bloke rang up while and abused me

1:26:57

but I didn't know what he was talking about.

1:26:59

But there's a longer story in there.

1:27:01

I addressed a military convention

1:27:03

and copped some serious flack about why would I bother

1:27:07

about a terrorist like Hicks from a woman dressed in blue.

1:27:10

So she was obviously in the air force

1:27:14

with lots of things on her shoulder.

1:27:15

And I go, ma'am, you're in the air force aren't you?

1:27:17

She went, "Yes I am."

1:27:21

And I went, and your job is to send

1:27:22

young Australian men and women in airplanes,

1:27:25

and they go over to other countries and they drop bombs.

1:27:28

And sometimes those bombs when they fall out

1:27:34

they cause collateral damage as well.

1:27:39

"What's it going to do with it?"

1:27:42

And I went, well, sometimes when they go over

1:27:44

to these other countries and they drop bombs

1:27:48

and they cause collateral damage,

1:27:50

sometimes those other countries shoot back, don't they?

1:27:53

And sometimes those young Australian men and women

1:27:56

that you send over there to drop bombs

1:27:59

that cause collateral damage have to land in that country.

1:28:01

And when they land in that country,

1:28:06

would you like the president of that country

1:28:09

to apply the Guantanamo Bay rules

1:28:13

to those young Australian men and women

1:28:16

and have the power of life or death over them

1:28:19

irrespective of what court in that country may say,

1:28:24

or would you like the Geneva Convention to apply?

1:28:27

(laughs)

1:28:31

(indistinct)

1:28:32

Yeah, that changed the tone of the discussion

1:28:34

that went after.

1:28:37

And they started to see that this was actually

1:28:38

a bit of a problem.

1:28:41

Interviewer

We had heard,

1:28:42

I wonder if I can really squish,

1:28:43

we had heard there was an attorney who represented

1:28:44

some detainees very early on, who did get death threats,

1:28:48

and this is in America, but you never got any in Australia.

1:28:51

-

No, the only other one was quite amusing.

1:28:54

My aunt had died.

1:28:56

I had gone to church.

1:28:58

I had with my son carried her out

1:29:00

and placed her in the hearse at the end of the service.

1:29:02

And now we were just standing there and a little old lady,

1:29:05

about 85 years old, came up and gave me an absolute mouthful

1:29:07

about why I was acting for that David Hicks.

1:29:12

I shouldn't be doing that.

1:29:15

I must say my son and I stood there with our jaws open

1:29:17

and went, what? (laughs)

1:29:20

And before I could react, she turned tail

1:29:23

and just walked off.

1:29:25

I went to the rows and went, who was that little old lady?

1:29:26

(laughs)

1:29:29

But no, I'd never, certainly in Australia,

1:29:31

I never received any threats, hate mail.

1:29:35

I received a lot of mail in support

1:29:40

and a lot of people wrote in supporting.

1:29:44

Even the guy who wrote to the terrorist lawyer

1:29:48

had a suggestion that I might try

1:29:51

a particular tactic or thought.

1:29:53

So it was, you know,

1:29:56

I think that there are less nutters in Australia

1:29:58

and we've got our own, but there's less of them

1:30:02

because we're a smaller country.

1:30:04

And so there wasn't that anger.

1:30:06

And it hadn't, I mean, to be honest,

1:30:11

September 11 hadn't happened out here,

1:30:13

and there hadn't been that mass hostility

1:30:16

to people who were trying to stand up for what was right.

1:30:19

And I think we also couched out.

1:30:23

Our whole campaign was couched around this issue

1:30:25

of giving people a fair go.

1:30:29

If he's done something wrong, charge him.

1:30:31

we're happy to defend him.

1:30:33

If he's guilty, he's guilty.

1:30:34

And lift it on that level

1:30:37

that this is what we're talking about,

1:30:39

we're talking about really getting a fair go.

1:30:40

Interviewer

Johnny, how long have we been going?

1:30:45

Johnny

One hour and 34 minutes.

1:30:48

Interviewer

Okay.

1:30:50

Are you okay to go on a little bit?

1:30:51

Do you wanna take a break?

1:30:52

-

Sure.

-

'Cause I-

1:30:53

-

How are you going?

You want a break?

1:30:54

Interviewer

I'm okay.

1:30:55

It's up to you.

1:30:56

You're the one talking.

1:30:57

All right, I'll have a five-minute break.

1:30:58

Interviewer

Okay, let's take a five-minute break, okay.

1:30:59

Johnny

Rolling.

1:31:01

Interviewer

Okay, is there anything else

1:31:03

about the Hicks case that maybe I didn't ask

1:31:04

that you think you might wanna share with us?

1:31:08

And then I have a few more questions about Hicks as well.

1:31:11

And maybe I can ask those, but.

1:31:15

-

Yeah, I don't think.

1:31:17

I think we've covered most of it.

1:31:19

There's a probably a million other smaller stories

1:31:20

that we could fit in there.

1:31:22

One of the things was, though, that I certainly felt closer

1:31:25

to the British lawyers and their views

1:31:30

than the American lawyers.

1:31:34

I can remember I conference in New York

1:31:36

when we were there and a woman who represented

1:31:38

the Tipton boys was there as well,

1:31:42

whose name I've just forgotten.

1:31:45

Was a very delightful very restrained English lawyer

1:31:47

who was a complete delight,

1:31:50

but very much on the same page as where I was coming from

1:31:51

and Clive as well.

1:31:56

We were very different in character and style

1:31:59

to the American lawyers.

1:32:02

And I think that was just a national thing.

1:32:04

And a lot of those people really put,

1:32:06

the Americans put in a lot of effort.

1:32:09

Particularly the ones who came in on the early days

1:32:11

made a great effort at a time of great hostility.

1:32:14

And they were doing it for no real benefit to themselves,

1:32:18

but there was a great deal of resistance.

1:32:24

Even when we issued the proceedings in Rasul in Washington,

1:32:26

it took Michael Ratner a long time

1:32:31

to find anyone who was willing to simply act as agent

1:32:33

in Washington for the local filing of the documents.

1:32:37

And he was quite surprised about the resistance

1:32:41

that they struck.

1:32:44

And that resistance really continued up until

1:32:45

the time we were successful in the Rasul case.

1:32:49

And after that, it was that then they took

1:32:51

a whole heap of lawyers in to becoming involved.

1:32:54

And the attitudes were changing about Guantanamo Bay

1:32:56

at that time.

1:32:59

Interviewer

Going back to the beginning,

1:33:00

as you started in the struggle,

1:33:02

did your opinion about American legal system change?

1:33:04

Had you had a different opinion

1:33:08

of the American legal system before 9/11?

1:33:09

-

I was probably reasonably ignorant

1:33:12

to the American legal system

1:33:14

not having run up against it before.

1:33:15

And to give you some idea, on the habeas Corpus stuff,

1:33:17

I'd estimated that we would make...

1:33:20

In Australia, in such a case,

1:33:22

we would have been in our high court within three months

1:33:25

or the outside, absolutely the outside.

1:33:29

And then the U.S. it was like no one was interested

1:33:31

in fast-tracking this process at all.

1:33:34

In fact, they were deliberately delaying it, if anything,

1:33:36

and it took three years or more to get it up.

1:33:39

And I was a little surprised about what I saw

1:33:43

as a major national case being treated in such a manner.

1:33:46

So I was quite ignorant on it.

1:33:52

The other thing that that caused me concern

1:33:55

was that the American lawyers would talk about the judges

1:33:57

we were coming up and about who had appointed them.

1:34:00

And that was how that decision would run in accordance with

1:34:03

whether they were a Republican or a Democrat judge,

1:34:06

when it's very rare to do that in Australia.

1:34:10

Even conservative your Liberal Party appointed judges,

1:34:13

there's no guarantee they'll side

1:34:16

with the Liberal government if they're in.

1:34:17

And in fact, it's quite often the opposite.

1:34:19

You just can't do that.

1:34:21

One of the cases I ran involved a very strong

1:34:24

Liberal Party appointment as a judge.

1:34:30

And he often came down against the government

1:34:32

and criticized them quite robustly.

1:34:36

So it wasn't an experience I was familiar with.

1:34:39

They would look at who was on the panel

1:34:45

and say, "Oh no, Republican.

1:34:47

You'll never win."

1:34:48

And I was like, the independence of judges

1:34:50

I think is much stronger in Australia.

1:34:53

Interviewer

And did you have any encounters

1:34:56

with doctors or psychologists concerning David Hicks?

1:34:59

-

Not in the U.S.,

1:35:04

but I certainly before I left the case

1:35:06

was working to get an expert in to see David

1:35:11

to provide an expert's report.

1:35:15

Interviewer

Did you succeed?

1:35:18

-

Not before.

1:35:19

And I can't remember now

1:35:20

whether they did ultimately get one.

1:35:21

I think they did have somebody go,

1:35:23

but I've never seen the report.

1:35:24

Interviewer

I guess we can go back to David Hicks

1:35:31

and we think of something along the way,

1:35:33

but you had represented the other Australian detainee,

1:35:34

but I'm not sure to what extent,

1:35:39

and you had some interaction with Mamdouh Habib,

1:35:41

and I wondered if you could just tell us

1:35:44

your interaction with him and something about him.

1:35:46

-

Well, my original reaction was really with Stephen Hopper,

1:35:50

who acted as his lawyer and Habib's wife as well.

1:35:54

We would occasionally do things together

1:36:00

or turn up in the same place at the same time

1:36:02

and we worked together and I spoke to Steve quite a lot

1:36:04

about the media comments.

1:36:08

We were doing the lines we were taking,

1:36:11

and try to a certain degree to coordinate our activities.

1:36:13

And I got along very well with him

1:36:16

and didn't have any difficulties.

1:36:18

I did have some interaction with Habib after he came back,

1:36:20

because he had asked me to assist another family in Sydney

1:36:25

whose husband had disappeared in Egypt

1:36:30

and Habib reported that he'd seen him in prison in Egypt.

1:36:33

And so I interviewed him and spoke to him

1:36:38

about his experience in Egypt,

1:36:41

and what he'd seen and what had happened.

1:36:43

And over the years, I've kept in touch with him

1:36:47

from time to time and more recently,

1:36:50

and this is publicly known,

1:36:51

because Habib reported in the newspapers

1:36:53

that he'd asked me to assist him

1:36:55

in suing the U.S. government over his rendition to Egypt.

1:36:57

Interviewer

Are you?

1:37:02

-

Well, I would if I could is the reality.

1:37:04

I met with Michael Ratner in New York in January, 2011,

1:37:08

but the cases that have been run have all lost

1:37:16

on national security grounds,

1:37:20

which again, I find astounding.

1:37:22

That would never happen in Australia.

1:37:26

Habib is now suing the Australian government here,

1:37:27

but they Australian government

1:37:31

are not saying national security 'cause it doesn't exist.

1:37:32

That defense for the government does not exist.

1:37:34

But it essentially gives the government

1:37:37

the capacity to commit murder and mayhem

1:37:39

with complete immunity.

1:37:43

I find that quite astounding.

1:37:44

And reading the cases,

1:37:47

the willingness of the court to give over

1:37:49

to this national security interest is, I think,

1:37:54

a matter that seriously undermines any democratic country

1:37:58

and perhaps explains why the American Secret Services

1:38:01

get away with so much

1:38:08

because they know they can cover it all up

1:38:09

with national security.

1:38:10

And I don't think that that's a good thing for democracy.

1:38:12

Interviewer

Did you ever talk to Stephen Hopper,

1:38:16

to other lawyers about coordinating your defense

1:38:19

or was it a deliberate decision to have

1:38:21

pretty much a separate defense

1:38:25

for the two Australian detainees?

1:38:27

-

Well, they were charged separately,

1:38:30

and in fact, Habib was never charged

1:38:32

and that was a real point of contention.

1:38:34

Habib turned up later than Hicks.

1:38:37

He was not picked up until much later in Afghanistan.

1:38:41

And then they had a little side trip for six months or so,

1:38:44

three months, I'm not sure how long, to Egypt.

1:38:47

And so it was a year or two into it

1:38:49

that Habib appeared on the scene.

1:38:52

And of course, initially we couldn't get any access.

1:38:54

When I went over to Guantanamo Bay

1:38:58

I sought access to Habib

1:39:02

after talking to Stephen Hopper about it.

1:39:04

I thought I was there, at least try and see him,

1:39:06

but that was just refused.

1:39:08

It was just point blankly refused.

1:39:09

Interviewer

And Hicks had no interest

1:39:12

in coordinating with Habib either?

1:39:14

-

Well, there was apart from being in the same place

1:39:17

at the same time in terms of their defense

1:39:19

to any charge in the U.S.,

1:39:21

there was really no more coordination between those two

1:39:23

than there would have been

1:39:26

between anybody else that was there.

1:39:27

There was no special connection between the two

1:39:30

that would have made it, I think, useful.

1:39:34

But certainly in terms of a common goal,

1:39:36

which was to get them out of Guantanamo Bay

1:39:40

or if they had committed some offense to have them charged

1:39:42

and have the opportunity to defend them,

1:39:45

Hopper and I were working together on that.

1:39:47

Interviewer

Looking back over this,

1:39:51

would you say that really it was the political part

1:39:52

that made all the difference and that the legal system

1:39:56

just broke down,

1:39:59

and I don't mean to put words in your mouth,

1:40:00

but just the way-

1:40:02

-

Oh, no, no.

-

This was never a legal case.

1:40:03

This was always a political case.

1:40:05

And we knew that fairly early on.

1:40:07

I mean, I actually believed naively that the U.S. courts

1:40:10

would take a serious interest in their government

1:40:14

taking people beyond the law.

1:40:17

I just could not believe that an Australian court

1:40:19

would allow the Australian armed services

1:40:24

to take people anywhere beyond the law.

1:40:27

It was just contrary to law.

1:40:29

And I found that the, you know,

1:40:33

I believe that the Americans ultimately

1:40:35

the courts would have to step in.

1:40:38

If the Supreme Court in Rasul had said,

1:40:40

"No, this is outside our jurisdiction,"

1:40:41

they have then handed to the government

1:40:44

the capacity to do what they like to anyone

1:40:47

anywhere in the world, and to say,

1:40:50

"Oh, we wash our hands on it."

1:40:52

And it means your government

1:40:53

is then completely unaccountable.

1:40:54

But it also meant from the Supreme Court's point of view

1:40:58

they would be seen as a joke in the rest of the world.

1:41:00

You can't, I mean, this is dictatorship country

1:41:03

that the courts are giving over.

1:41:08

And I think at the last moment the Supreme Court

1:41:10

obviously recognized that they had to take a stand.

1:41:13

As I said, if they had ruled against us

1:41:17

I was on my way to Cuba,

1:41:19

and I would be talking about freedom and court orders.

1:41:21

And I'd have been on the other side of Guantanamo Bay

1:41:24

with an order knocking on doors,

1:41:26

excuse me sir, we have a warrant for this man's arrest

1:41:27

and we'd like you to hand it over.

1:41:29

And I'm sure the Cubans would have loved

1:41:31

to been part of that exercise.

1:41:33

And it would have been a major embarrassment

1:41:37

to the Americans.

1:41:40

So I couldn't believe

1:41:41

that they would actually allow it to happen.

1:41:43

Although I must say the American lawyers

1:41:44

all believe they would.

1:41:46

I just went, I can't believe that.

1:41:47

Interviewer

So looking back now in almost 10 years

1:41:51

and Obama has taken over,

1:41:57

what do you think of the American justice system?

1:41:59

(laughs)

1:42:04

-

If the Americans were trying to extradite me

1:42:05

to face any charges in the United States,

1:42:07

I would fight them as hard as anybody

1:42:09

who's being charged with a Wikileaks leak or anybody else.

1:42:14

I find it quite astounding that the American legal system

1:42:20

has enabled them to get away with that.

1:42:25

There's been some clawring back of ground,

1:42:27

but the capacity to provide the government

1:42:32

with the freedom to treat people in the manner that they are

1:42:36

is astounding and, I think, a serious bloated democracy.

1:42:40

Interviewer

Do you think Guantanamo should be closed?

1:42:45

-

Well, absolutely.

1:42:48

There's no reason why they should have Guantanamo Bay

1:42:49

in existence.

1:42:52

It is now used and there's certainly

1:42:53

a lot of documentary evidence.

1:42:55

And in fact, I'm very fond of quoting

1:42:57

one of the generals in Iraq

1:42:59

talking about the damage that Guantanamo Bay

1:43:01

has done to America,

1:43:03

and in particular, to provide a recruiting tool

1:43:07

to every terrorist and extremist organization in the world.

1:43:12

It's an ideal recruitment tool.

1:43:15

And I think it's probably killed more Americans

1:43:18

than it's ever saved.

1:43:22

Interviewer

And were you hoping

1:43:25

for something different happening after Obama was elected

1:43:27

even though you were in Australia?

1:43:29

-

Yeah, I fully expected and believed Obama

1:43:31

would have closed Guantanamo Bay very shortly thereafter.

1:43:33

I understand the difficulties that he has

1:43:36

and the choices he has,

1:43:39

but I really see him as being a captive

1:43:40

of the U.S. Military machine

1:43:42

that have failed to allow him to do that.

1:43:46

And I believe they've now taken

1:43:48

what they call high value detainees down there.

1:43:50

And there's probably some very bad people down there

1:43:53

who are very angry about what's happened to them.

1:43:55

But I would also say that's entirely understandable.

1:43:57

You treat people like that,

1:44:00

you can't expect them to love you.

1:44:01

Interviewer

Are there some other thoughts

1:44:05

you have about the last 10 years that,

1:44:06

or a story that you'd like to share with us,

1:44:09

or looking back just-

1:44:13

-

What other things that I've done

1:44:14

or other direct involvement or carry on?

1:44:16

There's been two Australians I've acted for,

1:44:20

and one Australian from Adelaide saw George Bush

1:44:22

land on the aircraft carrier and declare operation's over

1:44:27

and Iraq is now safe.

1:44:30

And this guy was a refugee who came out to escape Sudan

1:44:32

and he saw this and went,

1:44:35

"Great, now for the first time in 10 years

1:44:37

I can go back and visit my family."

1:44:38

So he goes back there, he actually gets married

1:44:40

and he gets snatched off the street and thrown in a brigade.

1:44:43

He was in every brigade during General Miller's reign

1:44:47

in a brigade.

1:44:51

And so-

1:44:52

Interviewer

Why was he snatched from the street?

1:44:54

-

Well, because he was a foreigner there

1:44:56

and he was being interrogated on the basis

1:44:58

that he was intending to be a suicide bomber

1:45:01

come back to avenge people.

1:45:06

And he's like, "I bought a return ticket. (chuckles)

1:45:08

If I'm gonna be a suicide bomber,

1:45:14

why would I have a return air ticket?"

1:45:15

Interviewer

And you represented or?

1:45:18

-

Well, I came in, the family came too,

1:45:19

I didn't know anything about it.

1:45:21

No one had heard of this guy.

1:45:22

He'd been in prison for a year and a 1/2 or two years

1:45:23

before I'd seen him.

1:45:27

He'd basically been in a brigade with the Americans

1:45:28

or one stage with the Brits.

1:45:31

And in the end, they eventually dumped him

1:45:33

over to the Iraqi authorities.

1:45:35

And at that time, or just about that time

1:45:37

that I came on board and started speaking out about it,

1:45:40

and I think it was the time that the Americans

1:45:44

then dropped him into the Iraqis,

1:45:46

whether I had any influence in his release, I have no idea,

1:45:49

but it certainly happened very shortly after.

1:45:52

But he said he went before and a Iraqi judge

1:45:55

in the end and said,

1:45:58

"Look, here's my passport, I'm Australian.

1:45:59

Here's my return air ticket, I just got married.

1:46:02

I wanna go home."

1:46:04

And so they rang up his parents, said, "Come pick him up."

1:46:06

But then it took me another year

1:46:09

to get a passport for his wife to come out here.

1:46:14

And because he was too scared to leave her there by herself.

1:46:18

And so he stayed there unable to work,

1:46:23

unable to get any money.

1:46:25

It was very, very difficult

1:46:28

while I harass the Australian authorities here

1:46:30

to get his wife a visa to come out.

1:46:33

And the last time I saw him here in Adelaide

1:46:35

he had two very fine children and was working.

1:46:37

Although he does struggle,

1:46:41

I know with what happened to him in a brigade,

1:46:43

he's certainly trying to make a go of it.

1:46:45

Interviewer

Well, in closing, Stephen,

1:46:48

maybe you can give a closing review,

1:46:50

but I was thinking maybe you could just tell the audience

1:46:53

just obviously you've been an activist.

1:46:56

It seems like all your life and maybe what you're doing now

1:46:58

just people can appreciate that you haven't stopped.

1:47:01

(chuckles)

1:47:06

That wasn't just a short period of your life

1:47:07

representing detainees

1:47:10

-

No, no.

1:47:11

Well, it was part of my life.

1:47:13

I mean, it was, and just to tell a little story,

1:47:15

it was Joe Margulies saying to me

1:47:18

and it was one of the biggest most exciting cases

1:47:20

or interesting, I shouldn't say exciting,

1:47:23

but interesting cases have been.

1:47:24

Well, no, there's a little case down here

1:47:26

called the Hindmarsh Island bridge affair

1:47:28

that had a much greater impact on certainly my life.

1:47:31

But it involved an examination of what was called

1:47:36

the secret women's business

1:47:40

that stopped the building of a bridge to Hindmarsh Island.

1:47:41

And why you'd want to build one, that's another question,

1:47:44

but it became political because it involved

1:47:46

an attack on the Federal Government.

1:47:51

It was a state Royal Commission

1:47:54

and it went on to really be attack

1:47:57

on Aboriginal beliefs and traditions.

1:47:59

And I saw it every day.

1:48:02

We were in court for months and months.

1:48:04

I saw the effect it had on Aboriginal people

1:48:07

and their beliefs and them being called liars constantly.

1:48:10

And it ran for five or six years almost full-time.

1:48:14

And that probably hardened me to be willing to challenge

1:48:19

governments and others.

1:48:26

And since then I've had a long stream

1:48:29

of really difficult cases

1:48:32

that other people are not interested in,

1:48:34

acting for people who are not really desirable.

1:48:37

I've acted for Australians who have been detained

1:48:40

in Kuwait on terrorism charges.

1:48:44

Another one who was detained in Iraq

1:48:46

as currently I'm acting for an Australian

1:48:48

who's been on death row in Afghanistan.

1:48:50

He was a ex army security contractor.

1:48:56

His trial lasted about 20 minutes

1:49:00

and no witnesses were called and he was sentenced to death.

1:49:02

He's off death row at the moment

1:49:06

but he's still been sentenced to 20 years

1:49:07

in one of the most dangerous notorious prisons in the world,

1:49:10

and it's a very difficult matter.

1:49:14

Interviewer

Well, is there something you'd like

1:49:18

to add on (chuckles)

1:49:22

just to (indistinct)?

1:49:24

-

I don't know.

Guantanamo Bay I think is going to be seen

1:49:29

as the significant start to the fall of American democracy.

1:49:33

I think that the Americans are facing

1:49:39

a very difficult time economically

1:49:42

and I think politically as well.

1:49:44

And I think that Guantanamo Bay will stand out as a beacon

1:49:47

of when things really started to go bad.

1:49:52

I hope that never comes to pass, but I really fear it.

1:49:54

Interviewer

Well, thank you.

1:50:00

Johnny needs 20 seconds of room tone

1:50:02

where he just, everything's quiet

1:50:05

and then we'll end it.

1:50:08

-

I'll just sit quietly.

1:50:10

Interviewer

Yes.

1:50:11

-

Thank you, Johnny.

1:50:12

Johnny

Begin room tone.

1:50:14

End room tone.

1:50:30

Kenny, Stephen - Interview master file

Transcript

Item Info

Human Rights Archive

More Info & Options