Australian Labor leader proposes retrospective laws to prosecute Guantanamo Bay detainees

By Mike Head
26 February 2004

A controversy surrounding the continuing illegal detention of two Australians, David Hicks and Mamdouh Habib, together with more than 600 others in the US military prison on Guantanamo Bay, Cuba has underlined the lack of any support within the Australian political establishment for the most elementary legal and democratic rights.

Without any objection by the Australian Labor Party (ALP) opposition, the Howard government has permitted the Bush administration to hold the pair as alleged “enemy combatants” for more than two years without charge or trial, in flagrant violation of the Geneva Conventions.

Following an agreement last week between Washington and the Blair government for the return of five British detainees—on the condition that they be kept imprisoned and placed on trial in Britain—ALP leader Mark Latham suggested the adoption of retrospective laws to enable Hicks and Habib to be prosecuted in Australia.

After weighing up the proposal for two days, the Howard government rejected the idea, declaring that the two men would never be brought back to Australia unless a US military tribunal acquitted them. Howard reiterated that this was because they had committed no crime under Australian law. “We are not going to bring them back,” he declared. “They cannot be prosecuted under any existing offence here.”

The government insists the men be kept locked up indefinitely, deprived of fundamental legal rights, with their fate to be determined by the Pentagon and the White House. To try to justify this position, Howard and other cabinet ministers have repeatedly asserted that Hicks and Habib have committed serious but unspecified offences against the US. But they have failed to produce a shred of evidence. Moreover, their statements are highly prejudicial to the outcome of any trial, military or otherwise.

In effect, Latham wants to go one step further. By definition, his proposed retroactive legislation would create new offences designed specifically to fit whatever conduct has been alleged against the pair. Its aim is to guarantee that Hicks and Habib are convicted of serious terrorist crimes—carrying life imprisonment under the Howard government’s 2002 anti-terror laws—for activities that were completely legal at the time.

Hicks is supposed to have aided the former Taliban government of Afghanistan. This is not a crime under current domestic or international law, because the regime was recognised at the time by the UN as the legitimate administration of the country. Habib’s case is even more problematic for the government. Local police in Pakistan originally detained him before the US-led invasion of Afghanistan, in October 2001.

Back-dating laws against Hicks and Habib will establish a precedent for doing the same thing against anyone. Latham’s suggestion flouts the centuries-old principle against retrospective criminal laws, designed to protect citizens against despotic rule. In English law, the rejection of such laws as “cruel and unjust” arose out of bitter struggles against the absolutist monarchy, culminating in the Cromwellian revolution of the 1640s.

Blackstone’s Commentaries, an eighteenth and early nineteenth century summation of English common law, explained the objection as follows, after referring to Roman Emperor Caligula’s method of prescribing laws by writing them in very small characters and hanging them up on high pillars in order to ensnare the people:

“There is still a more unreasonable method than this, which is called making of laws ex post facto: when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.”

The principle was reinforced by the American Revolution of 1776 and the French Revolution of 1789. The United States Constitution explicitly prohibits ex post facto criminal laws, as did the French Declaration of the Rights of Man of 1789, which re-appeared in the French Constitution of 1791 and remains in the French Code Penal. The same rule headed the German Penal Code of 1871 and was guaranteed by the pre-Nazi Weimar Constitution.

The principle is also enshrined in those post-World War II international conventions concerned with civil and political rights, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), both ratified by Australia. Article 15 of the ICCPR states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

The Australian Constitution, however, adopted in 1901, contains no such protection against arbitrary persecution. The Australian High Court has several times upheld the validity of back-dated criminal laws, starting with the wartime case of R v Kidman in 1915. Most recently, a 5 to 2 majority confirmed Kidman’s case in the 1991 war crimes case of Polyukhovich.

The only objection raised by the High Court in Polyukhovich was to retroactive criminal laws that nominate or are designed to apply to particular individuals, rather than to the population as a whole. Such laws, the judges warned, would infringe on the separation of powers between the government and the judiciary.

It was this potential problem, not any qualms about trampling over civil liberties, that led the Howard government to pull back from trying to make its sweeping counter-terrorism legislation of 2002 retrospective. Responding to Latham’s recent call, Attorney-General Philip Ruddock confirmed that the government had considered, but ultimately rejected, retrospectivity in 2002.

After two days of discussion, Ruddock and Howard criticised Latham’s proposal as “impractical” on the grounds that it could be unconstitutional. It was also unlikely to lead to successful prosecutions, Howard observed, as criminal intent is difficult to prove if the actions in question were perfectly legal at the time.

Lawyers for Hicks and Habib condemned both Latham and the government. Hick’s lawyer, Stephen Kenny, opposed Latham’s proposal and said the government would be embarrassed by the return of Hicks and Habib, because they would be found innocent. “They really don’t want them back here,” he told journalists. “They have, by their own faults, demonised these people and now they feel like they have to justify it.”

Stephen Hopper, who represents Habib, accused Ruddock of hypocrisy, saying his client was likely to be charged under a retrospective American law. Hopper said President Bush did not sign an executive order creating military commissions to try Guantanamo Bay cases until after Habib was detained. “Mr Ruddock can’t have it both ways. He can’t say retrospective laws are inappropriate here but it’s all right for America to use retrospective laws to try these people in military commissions.”

Confronted by public opposition, Latham denied that he had proposed specific retrospective laws. Nevertheless, he pledged total support to any proposals by the government to place Hicks and Habib on trial. Shadow attorney-general Nicola Roxon suggested a modified version of Latham’s proposal, using charges under international law.

Labor is not alone in wanting to back-date criminal laws to keep Hicks and Habib behind bars. Australian Democrats Senator Brian Greig said this was a rare case when back-dated laws could be appropriate. Former Labor Attorney-General Michael Lavarch, who now heads the Australian Law Council, the legal profession’s peak body, agreed.

The continued detention of Hicks and Habib is an affront to the basic democratic right of freedom from arbitrary imprisonment. The willingness of the Australian government, aided by Labor, to leave them in an open-ended legal black hole is a chilling indication of their readiness to flout the most fundamental legal rights.

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