Freedom of speech is fundamental to every other freedom

Freedom of thought and freedom of speech are closely related. Thought without information is pointless. The right to form and hold opinions depends crucially on access to information. Access to information is impracticable unless those with information or opinions are free to speak. Since it is difficult to monitor a person’s thoughts, it is more effective to inhibit the act of communicating information.

In law-enforcement, terrorism is the new black. The world’s response to September 11 explains this. The reaction of governments to September 11 might lead you to think that terrorism sprang forth fully-formed on that day. Recent anxiety about terrorism and reactions to the threat of terrorism, are a reminder of the importance and the fragility of the freedom to speak and the freedom to hold unpopular opinions.

Anti-terror legislation criminalizes actions by reference to ideology. This directly calls into play the beliefs of the accused. An act which would be an ordinary criminal act becomes dramatically more serious if done for a prohibited ideological purpose.

Last Monday, the Federal Parliament amended the definition of ‘terrorist act’. They side-stepped the opportunity to remove its plain overtones of ideology. We find that there are a string of terrorist offences all created by reference to the notion of a terrorist act. I should stress that I am not advocating terrorism: if I were, the fact that you are here might make us a terrorist organisation, and you would all have to run for the exits to avoid prosecution. I deplore the idea of flying planes into buildings, or letting off bombs in the Underground. The terrorist acts we all fear are also orthodox criminal offences. The important question is whether it is a good idea to create a range of offences which depend on a definition based on an ideological purpose, and which casts such a wide net using that definition as the starting point. It is a truism to say that one person’s terrorist is another person’s freedom fighter. It is self-evident that Nelson Mandela’s ideological purpose converted his conduct into terrorist offences, but we judge him kindly because his ideology aligns with our own. It is equally clear that, by today’s definition, Ned Kelly was a terrorist, as were the rebels of the Eureka Stockade. We hesitate to criticise them because, as in Mandela’s case, we do not disapprove of the ideology which guided their actions.

This is not just a lawyer’s quibble: it cuts to the heart of the right to free thought and free expression. It shows that the legal notion of terrorism depends not so much on social norms as on political orthodoxy.

The political focus on terrorism and the extraordinarily harsh penalties attached to terrorist offences, creates the climate for another, more insidious, means by which free though and free expression are curbed. I want to look at this aspect in a little more detail.

In the aftermath of September 11, the Australian Government introduced the anti-terror legislation which I have discussed, and it joined with the United States of America in invading Afghanistan, and later Iraq, in order to oust the Government of those countries. (Ironically, both invasions meet exactly the definition of terrorist act).

It is well-known that during the Afghan invasion the Americans bought a number of prisoners from the Northern Alliance troops. One of them was David Hicks, an Australian citizen. He was sold to the US for $5,000.00. Along with others, Hicks was taken to Guantanamo Bay in early 2002. Fairly soon, credible reports began to emerge from Guantanamo Bay about the way detainees were being treated. It was notorious that they were all being held without charge, and were accorded neither the protections allowed to Prisoners of War under the Geneva Conventions, nor the protections afforded to ordinary criminal suspects.

The Government of John Howard knew in some detail what was happening to Hicks. He was interviewed several times in Guantanamo Bay by Australian officials, including a consular official and ASIO officers. He told them what had happened to him. The Government of John Howard did nothing. They put forward the rather bizarre explanation that since Hicks had not broken any Australian law, they could not bring him back to Australia.

For the first five years of his incarceration, Australia abandoned Hicks to be held in a concentration camp run by our ally the United States. Australia’s indifference to Hicks continued until the public mood swung in late 2006.

The Australian public was, by and large, unconcerned. Hicks had been publicly branded a terrorist by George W. Bush, and was said to be among the “worst of the worst” by Donald Rumsfeld. When Hicks pleaded guilty, part of the deal was that he could serve seven months of his nine month sentence in an Australian jail. He was brought back to Australia in April 2007. It was a condition of his plea bargain that he remain silent about Guantanamo Bay for at least 12 months. Presumably this was to make sure that John Howard could go to the election at the end of 2007 without the embarrassment of the public understanding how Hicks had been tortured by our ally and had been knowingly abandoned by his country.

In 2004, Hicks had been charged with conspiracy, attempted murder and aiding the enemy. But the charges did not allege that Hicks killed or even harmed anyone. The charges were later dropped, because there was no evidence to support them. He was later charged with “Providing material support for terrorism”, an offence created while he was in Guantanamo. Whatever he had done, it was not an offence against any law at the time he did it.

Now David Hicks has written a book about his experiences. The book is quite well written, and the story it tells is pretty disturbing. Public reaction to the book is what I want to discuss, because it illustrates the new censorship.

In our tightly held media, only a limited range of views can ever be heard in the mainstream. Several commentators have reviewed Hicks’s book and have been extremely critical of it. This will doubtless have been one of the forces which have reduced the sales of the book well below expectations. Miranda Devine wrote about Hicks’ book in the Australian. She seems intent on demonizing Hicks and misrepresenting what is in the book. What is completely absent from her poisonous little diatribe is any reference to the second half of the book, in which Hicks describes the treatment he received at the hands of the Americans. He was beaten, starved, stripped; he was hooded whenever he was moved from place to place. He was short-shackled for interrogations, held in solitary confinement for months on end, kept awake for days at a time, and sprayed with pepper spray. He was interrogated in ways which are outlawed by the Geneva Convention. And he was tortured. About these things, Miranda Devine is entirely silent. The tenor of her piece is that he deserved what he got.

The message in Howard’s answer to David Hicks on Q and A recently was that torture is OK, as long as it protects us from terrorists. The message in Howard’s answer was that anyone involved in or suspected of terrorist activity is beyond ordinary legal norms or standards of treatment. Howard has never expressed regret or concern for the behaviour of the Americans at Guantanamo Bay, let alone their conduct at Bagram Airbase and their programme of secret rendition. He had a chance to express regret on Q and A, but he avoided it.

In his book Hicks quotes a US interrogator at Guantanamo Bay who said:

“There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your country, because you will not leave this place innocent”

That is the attitude which informed Howard’s response to Hicks on Q and A; it is the attitude which informed Australia’s response to Hicks’ incarceration in Guantanamo Bay.

It is the attitude which makes it possible to shut down debate about terrorism, by imprisoning writers who express dissident views. It is the attitude which makes it possible to abandon David Hicks to American torture, and to ignore him when he speaks about it.

In this supposed new age of terror, it is more important than ever to remember that freedom of thought and expression are fundamental to every other freedom we seek to protect.

BY JULIAN BURNSIDE