The first feature o f civil society’s approach is that it was slow to organise around the issue o f Australians at Guantanamo Bay. Activism on the issue only gathered momentum in 2006, a year after Habib had returned home and two years after the UK began repatriating its nationals. Human rights campaigners talk about the convergence o f a number o f indirectly connected issues that ultimately turned public opinion on Hicks’s situation around this time. They include two high-profile wrongful immigration
without trial (Murphy, tel. interview 31 Jan. 2013).63 Lasry says it took until Hicks had been in custody for five years without a trial, or much prospect of one, for Australians to begin thinking “whatever he’s done, this just doesn’t seem fair” (Lasry, tel. interview 8 Jan. 2013). Although individuals and organisations in civil society aired concerns over the detention of Hicks and Habib before then, media reporting of the cases in The Australian and The Sydney Morning Herald prior to 2006 makes it clear this did not
occur with any intensity. The churches, for instance, only publicly criticised Australian government policy on Hicks from late 2006 and did not touch the torture issue (Morris
17 Oct. 2006; 2 Dec. 2006; Wallace et al. 8 Feb. 2007; Stewart 10 Mar. 2007).
This delayed mobilisation is further illustrated by an examination of the more active civil society groups. Amnesty International Australia issued 19 press releases on Hicks and Habib between 2001 and 2010.64 Its main focus in Australia from 2001 to 2005 was refugees (Katie Wood, tel. interview 18 Jan. 2013). Its campaign on Hicks accelerated in 2006. Amnesty International’s tardy activism was influenced by decisions taken at the International Secretariat level, which fixed the organisation’s position on the Australians detained at Guantanamo Bay (Wood, tel. interview 18 Jan. 2013). Until 2006, that position was characterised by a reluctance to call for detainees to be brought home while the US was still making changes to the military commissions. This stance shifted with the visit of the organisation’s Secretary-General, Irene Khan, to Australia in 2006, who forced a change in Amnesty International’s policy and rhetoric. One of Amnesty International's most high-profile campaign events following this shift involved touring the eastern states of Australia with a replica of Hicks’s cell at Guantanamo Bay (Gibson 19 Mar. 2007). This tour only launched in March 2007.
The campaigns of the HRLRC and GetUp! began in late 2005, when the organisations were established. The HRLRC’s former director, Lynch, says while the Hicks case itself did not drive the establishment of the Centre, “it was a relevant factor in identifying the need for such an organisation and the kinds of strategies it might use” (Lynch, tel. interview 19 Jun. 2013). GetUp!’s decision to take up the Hicks issue was driven partly by member concerns (ascertained through surveys, emails and comments on its blog)
6' The cases involved permanent resident Cornelia Rau in 2005 and Indian national Dr Mohmaed Haneef in 2007.
64 This is based on the Amnesty International website, and the provision by Amnesty International Australia of its records of all press releases on the Hicks and Habib cases.
and because of pressure from Hicks's family and its lobby group, Fair Go For David (Solomon, tel. interview 21 Feb. 2013). In mid-2006, Solomon, GetUpFs executive director, realised the Hicks case had progressed from being a “niche” human rights issue into a mainstream political concern. That moment of realisation came when GetUp! organised a public candlelight vigil for Hicks in central Adelaide (ABC 23 Aug. 2006). It was attended by approximately 2000 people, says Solomon, “all these beautiful families - Fm not talking ratbag activists but families, mums and dads with grandmothers and kids” (Solomon, tel. interview 21 Feb. 2013).
In the legal sector, the ICJ expressed concerns about the Australians at Guantanamo Bay in 2002 (Banham and Alcorn 12 Jan. 2002; Banham et al. 19 Jan. 2002). However, the I d 's campaign over Hicks began in earnest in 2006, with the drafting of an open letter to the Prime Minister containing 76 signatories, including four former Supreme Court and Federal Court judges (Kerbaj 3 Jun. 2006). The president of the ICJ’s Australian section, John Dowd QC, says by this time Hicks’s treatment “had become a significant electoral image damaging the government, so that a number of us formed the view that we could force Howard's hand by raising the issue” (Dowd, tel. interview 20 Feb. 2013). The timing of the open letter points to the tardy response by Australia's judicial sphere to the situation of citizens at Guantanamo Bay. At least two former High Court justices had publicly criticised the treatment of detainees before 2005 - but five more former and sitting High Court justices did in 2005 and 2006 (Macfarlane 30 May 2003; Gibbs 27 Jan. 2004; Horin 1 Nov. 2004; 6 Aug. 2005; ‘Hicks Furore' 5 Aug. 2005; Pelly 4 Mar. 2006; Stephens 25 Nov. 2006; Ramsey 10 Sep. 2005; Wilkinson 7 Oct. 2006; Gleeson 6 Oct. 2006). In 2003, an editorial in The Sydney Morning Herald
criticised the failure of Australia’s judiciary to speak out earlier, drawing a contrast with the UK where Lord Steyn had publicly condemned the Guantanamo Bay military commissions. “It is a pity that in Australia, all too few jurists are speaking out in this way,” it commented (Editorial 27 Nov. 2003).
In Australia, then, public opinion, which I distinguish from civil society, appears to have led civil society activism, rather than the other way around.65 This was evident from comments by the ICJ’s president and GetUp!’s executive director. A separate
65 See Chapter Two for my definition of civil society, which was founded on Jurgen Habermas’ concept of the public sphere, a domain of social life where “public opinion can be formed” (Seidman 1989, 2005:
point is that, upon examining the role of Australia's various legal professions, it is clear that the legal complex was not, from an early stage, speaking with a unified voice on the cases of Hicks and Habib. Moreover, it was not speaking much at all on the issue of torture, a second feature of civil society’s approach to which I now turn.