Like Peter denying Jesus after the arrest, as dawn was breaking and the cock was getting ready to crow, Australia is given a third chance to acknowledge its inconvenient associations. Will we, like Peter, deny any association with or responsibility with the wars in Iraq and Afghanistan and the detainees in Guantanamo? We probably will. We denied our own citizens in Guantanamo until the opinion polls started to turn dirty.
Australia, through the support of the Howard government for the actions of the Bush Administration’s war on terror, has as much responsibility for the Uighurs, who were found to have been wrongly detained, as does the US and the Bush Administration.
We should accept the Uighurs as refugees and permanent residents. If they are returned to China, they face certain persecution and, possibly, death. To do otherwise would display a flaw in our national character.
Meanwhile, the detention of other detainees is also turning out to be baseless, a house of cards built on uninformed suspicions.
On 5 May 2009, Judge Gladys Kessler dealt with the facts concerning the detention of one detainee. Judge Kessler ordered the release of detainee, Alla Ali Bin Ali Ahmed, a citizen of Yemen, who had been detained at Guantanamo since 2002 when he was a mere teenager. (A report and the full judgment can be found here.)
Judge Kessler said the US Government had to prove detention was justified, and that this must be achieved by “a preponderance of the evidence”.
She found many of the documents before her were disputed they contained second and third hand hearsay; a number of the statements were alleged to have been obtained by torture; and none of the statements were actually recorded verbatim. The Federal Rules of Evidence provided, however, that all relevant evidence is admissible. They require that even second or third hand accounts be received and evaluated for credibility.
Judge Kessler said “at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of evidence that the Petitioner is justifiably detained”.
She evaluated the evidence of various witnesses whose identities were kept secret. Most appear to have been past or present Guantanamo detainees. The judge commented adversely on the credibility of the witnesses; the fact that much of the information was imprecise; that versions had been stated, recanted and re-stated; that torture or fear of torture was relevant to the statements relied on; that the question whether the applicant was properly identified as the person identified who was the subject of the dispute was often unclear; and much of the information was, itself, second or third hand hearsay.
Judge Kessler was not satisfied that Ali Ahmed had ever been in Afghanistan. She concluded any contact with others alleged to be Taliban fighters had not been proved to be anything other than incidental.
None of the allegations against the detainee were found to be proved. Judge Kessler said: “When taken all together as facts which comprise a mosaic theory, the evidence does not satisfy the Government’s burden of proof: ie, the Government’s picture does not establish that it is more likely than not that [Mr. Ali Ahmed] fought for the Taliban … “.
As well as granting the writ of habeas corpus, she ordered that “the Government … take all necessary and appropriate diplomatic steps to facilitate [Mr. Ali Ahmed’s] release forthwith, and to report back to the Court no later than June as to the status of [his] release”.
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