Two days before David Hicks arrived at Guantanamo Bay in Cuba on January 11, 2002, flown there in a military transport from Afghanistan where he had been captured by Northern Alliance forces and sold to the US military for $US1000, lawyers at the US Justice Department drafted a memo on how the US should fight the war on terrorism.The memo went to Alberto Gonzales, then the White House legal counsel and the man who now, as the US Attorney-General, is under fierce pressure to resign after he apparently misled Congress about the reasons for the sackings of eight US attorneys last December.
Gonzales used that memo as the basis for his advice to the US President, George Bush, that in the war on terrorism, the Geneva Conventions designed to protect prisoners of war did not apply to Taliban fighters and al-Qaeda members captured in Afghanistan.
The Gonzales memo was one of a number of "torture memos" drafted in the Justice Department and the White House in those six months after September 11, 2001, when there was a widespread view about the inevitability of another terrorist attack. Gonzales argued the war on terrorism was a new kind of war that placed "a high premium on factors such as the ability to quickly obtain information from captured terrorists" and that this meant the Geneva Conventions, when it came to the questioning of alleged terrorists, were "obsolete".
By then, the White House had set up the military commissions under which Taliban and al-Qaeda members in Guantanamo would be tried, military commissions that were a long way from normal court martial proceedings, the rules of which were laid out in the US Military Code of Justice.
Whether Hicks was subjected to treatment outside of the limits imposed by the Geneva Conventions because the US military considered it necessary to do so may never now be clearly established. Hicks has sworn that his guilty plea was not coerced and it is clear that he was not just a young Australian looking for meaning in his life who happened to fall in with some particularly bad people.
The debate over his detention and trial before the controversial military commissions system has seen the usual suspects take predictable sides. Opponents of Australia's commitment to the war on terrorism - many believe this a phoney war - and the war in Iraq have used the Hicks case to attack the Government. In the process, they have transformed Hicks into a martyr, an innocent victim of a lawless and cynical Bush and his good mate John Howard.
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Supporters of the war on terrorism and the war in Iraq have defended the Howard Government's decision to support the military commissions, and Hicks's five-year incarceration, on the basis that Hicks is a terrorist and the military commissions offered him all the justice that terrorists deserve.
This debate is dispiriting. The fact is the "torture memos" advice was accepted by Bush and the US Vice-President, Dick Cheney. They signed on to the use of torture in the war on terrorism. They gave the green light for military commanders and their underlings to torture detainees. These commanders told those under them that "vigorous" interrogation techniques were lawful. These techniques were then widely used in Afghanistan, Iraq and Guantanamo Bay.
That remains the Bush and Cheney view of the way the war on terrorism needs to be fought, even though Robert Gates, the new US Defence Secretary, has urged the closure of Guantanamo Bay, a move supported by the US Secretary of State, Condoleezza Rice. They want Guantanamo closed because it has come to symbolise the way this Administration has waged the war on terrorism, sanctioning torture and abuse of detainees in the name of fighting a war against enemies who despise American "values". Values such as the rule of law and a commitment to human rights.
It is incumbent on those who do believe the war on terrorism is not some cynical political ploy by Bush and Howard but a real battle against a real threat to liberal democracies and to moderate Islam, to robustly and unequivocally condemn the methods that have been used to wage this war. It is the least that we are obliged to do.
Michael Gawenda is the Herald's Washington correspondent.
© 2007 The Sydney Morning Herald