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Ruddock rejects Hicks sentence criticism -

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Ruddock rejects Hicks sentence criticism

Broadcast: 03/04/2007

Reporter: Tony Jones

The Attorney-General, Philip Ruddock, has rejected criticism of the sentence handed down to David


TONY JONES: As details have emerged about the plea bargain agreed to by David Hicks to get out of
Guantanamo Bay, there's been considerable conjecture about one key element - he's agreed not to
speak to the media for 12 months, a gag order which expires on 31 March 2008. So why was the gag
order imposed? Who asked for it and is it even enforceable in Australia? Earlier this evening David
Hicks' military defence attorney Major Michael Mori told the 7:30 Report Hicks could be hauled back
to Guantanamo Bay if he breaches the order. As you saw, Philip Ruddock doesn't agree. I spoke to
the Attorney-General in Brisbane earlier this evening.

Philip Ruddock, thanks for joining us.


TONY JONES: Has the politics of the David Hicks' case been neutralised by his guilty plea?

PHILIP RUDDOCK: Well I mean some people suggest the politics was primarily in Liberal seats and I'm
not in a position to comment about where I think people's judgment may have been. Some might say
that the fact that the Government was forcefully taking up the issue of the length of time it had
taken to resolve was sufficient to meet the public's concerns. So where it lies I don't really know
but certainly I am glad that it's out of the way.

TONY JONES: Did the Government request directly or indirectly that a gag order be placed on David
Hicks as part of his plea?

PHILIP RUDDOCK: Well, the direct answer is no. I was as surprised as most people to see it. Look,
it is quite clear that we are of the view that people who have been engaged in criminal activity
should not profit from it. But proceeds of crime legislation deals with the profiteering, not the
telling of a story. So we are not about a gag in relation to people speaking about issues that they
wish to comment on, even if they have committed criminal offences. But we are against them being
able to profit from telling that story.

TONY JONES: I'll come to that in a moment but first of all, what is the purpose of the gag order as
you understand it?

PHILIP RUDDOCK: Well, I don't understand it. I've seen it and it seems to me that it's fairly hard
to imagine the argument that it would stop somebody speaking before an election, for instance, has
any currency. Prisoners in jail serving out sentences don't hold press conferences and he won't be
released until around about New Year's Day.

TONY JONES: Yes, but the gag order, I think, goes until 31 March of 2008, so you would expect him
to be free and the gag order's still in operation. Will you enforce it?

PHILIP RUDDOCK: Well, I don't think it's a matter for us to enforce. This is an agreement between
Hicks and his counsel and the American Government and the prosecutors. It's a matter - they've
included it in their agreement and presumably they have some idea about how they would want to
press that matter, but I'm not privy to any of that.

TONY JONES: Yes, well, his US military lawyer, Major Mori, has said on the 7:30 Report tonight that
if David Hicks were to break this gag order to talk to the media in Australia, he could be sent
back to Guantanamo Bay to serve out the remainder of his sentence. Could that happen?

PHILIP RUDDOCK: Well, I think the argument runs like this, that if he breached this agreement that
had been reached with the Americans and were he to be in a position having breached that agreement
and being again regarded as an unlawful combatant, they would be able to seek to detain him and
bring him to a further trial. Now, I mean that's essentially the argument and that would really
depend upon whether he came within the reach of the United States.

TONY JONES: Well, precisely. I mean he'd be here in Australia, I mean, would this Government agree
to a deportation order if he were to break the gag order and they wanted him back in Guantanamo

PHILIP RUDDOCK: Well, Tony, we have agreements, not for deportation, but for extradition and the
extradition agreements depend on a number of factors. One, there has to be an assurance that a
death penalty won't be sought, but there also has to be that the offence for which a person is
being extradited is one for which there would be a like Australian law and I'll leave it to your
imagination as to the way in which somebody seeking extradition in relation to a party for
breaching a so-called gag order would be able to be delivered up through the judicial processes in

TONY JONES: Well, that is exactly the point, isn't it, and my imagination tells me it wouldn't
happen and therefore the gag order means nothing and he will be able to talk.

PHILIP RUDDOCK: I suspect you're probably right.

TONY JONES: So effectively the Australian Government won't be enforcing a gag order, you can
confirm this that?

PHILIP RUDDOCK: No, I'm saying in Australia we have a position about freedom of speech and proceeds
of crime legislation deals with proceeds of crime and it can include literary proceeds. It's so
people don't profit from it. It's not to stop them from telling their story. This is a clause that
was included in this plea bargain by the United States and the matter is between the United States
and Mr Hicks and his advisers.

TONY JONES: The Government has moved to stop Schapelle Corby or her family members profiting from
the sale of her story. Would the same thing apply to David Hicks?

PHILIP RUDDOCK: Look, I'm not going to offer a legal opinion about what particular circumstances
proceeds of crime legislation may or may not apply, save to say that it does apply in relation to
offences offshore and it does apply in relation to profits that people here may benefit from taken
offshore. So the Schapelle Corby matter is presently before the courts. The Australian Federal
Police had to come to a view as to whether or not there were proceeds of crime, literary proceeds
in this case, and the Director of Public Prosecutions needed to agree to that matter. These matters
are in the hands of the Australian Federal Police and the Commonwealth Director of Public
Prosecutions as to whether they're pursued and in Corby's case they are being pursued. The matter
is presently before a court.

TONY JONES: I'm assuming from what you're saying the likelihood is that you would try to do the
same thing if David Hicks were to sell his story and make, for example, a million dollars from it?

PHILIP RUDDOCK: Look, if Hicks were to try and profit from telling this story, we would expect that
the Australian Federal Police would form a view that the laws dealing with proceeds of crime had
been breached and they would go to the Director of Public Prosecutions. Somebody gave me another
example, they said if David Hicks' father wanted to write a story about David and he promised to
give all of the proceeds to charity and wasn't going to profit from it, would we be able to stop it
and the answer is no.

TONY JONES: So there are ways around this, but obviously what we're wondering about is a direct
interview done on television, with magazine and book rights, etc, etc, etc, the sort of thing we
quite commonly see in this country on commercial television associated with magazines and so on.
You'd try and stop the profits going to Hicks directly but you couldn't stop them going elsewhere,
is that what you're saying?

PHILIP RUDDOCK: No, you'd stop them going to him indirectly, or to members of his family where they
would be likely to hold them for him and provide benefits to him. I mean there are a range of
circumstances in which it would happen. But if clearly he was receiving no benefit either directly
or indirectly and through his family, then it's very likely that the relevant law would not apply.
If it was for a charitable purpose and that was quite clear, it's quite unlikely that we would be
able to recoup it as proceeds of crime.

TONY JONES: What about a trust for his children, for example?

PHILIP RUDDOCK: I think that that would very likely be caught but I don't want to offer an opinion
in those matters. It's for the Australian Federal Police, the Commonwealth Director of Public
Prosecutions and ultimately a court.

TONY JONES: Four Corners last night gave us a preview of what David Hicks might say in any such
interview were he allowed to talk, it comes from an affidavit he made in an English court in
Afghanistan. He said he was punched, kicked, slapped and spat on. He heard other detainees
screaming in pain. He had a shotgun trained on him during interrogation. Does any of that give you
pause to wonder whether he was or was not abused in military custody?

PHILIP RUDDOCK: Every time issues have been raised and taken up with us, and I must say these
matters haven't been taken up with us, we've put them to the American authorities with the view to
have them properly investigated. And none of those sorts of claims have been substantiated. The
only point I'd make is that we are in a position now, he having appeared before a tribunal, having
made certain admissions as to his guilt and having done so with advice, we've also had an
opportunity to see that he has retracted claims that he was abused. I mean that's part of the plea
bargain. And we also have had a chance to see him and to form a view about whether or not he has
been in some way brought to a very precarious state of health through his ill-treatment and the
view seems to be that that does not appear to be the case. And in fact I understand he received a
separate visit to those from his family and the Australian Consulate, from a psychiatrist in the
United States to test whether or not he was fit to plead, and after an extensive consultation, I
gather the judgment was that he was sound of mind and his appearance in health terms also seemed
quite sound.

TONY JONES: But you're not at all concerned that some of what he has told interrogators in
Guantanamo Bay is evidence gained under coercion?

PHILIP RUDDOCK: Well, what I do know is that, and I caution when I spoke on the Insight program on
another television enterprise, but I said then that it's a very serious issue in relation to a plea
bargain for somebody to make admissions of guilt that go to your whole future, and I wouldn't think
one embarks upon that course lightly. He has done so, with advice from not only Major Mori but also
his civilian counsel and I suspect while they weren't directly involved, he was also separately
advised by Australian legal practitioners. He was tested before the military commission as to
whether or not he was making those admissions voluntarily and whether they were true and he
affirmed that that was the case. So you have not only Mr Hicks but also those who were advising him
asserting that he was properly advised on these matters and they were the views he'd come to in
relation to the conduct in which he engaged and has been offering a plea of guilty.

TONY JONES: Now I asked that because recently we spoke to the American bioethicist Dr Stephen Miles
on this program. He referred to interrogation techniques used at Guantanamo Bay and he had made a
study of these through 60,000 pages of declassified documents, including interrogation logs. The
techniques included, he said, prolonged sleep deprivation, prolonged stress positions, the use of
heaters and airconditioners to artificially and dramatically heat and cool detainees, sexual
harassment, religious harassment and the use of barking dogs. Now, if any of these were used
against David Hicks or people giving evidence against him in Guantanamo Bay, that would make the
whole proceedings pretty much redundant, wouldn't it?

PHILIP RUDDOCK: Well, I think in relation to any contested hearing in which evidence was adduced
that was obtained by torture and the sorts of conduct that you were speaking of might well
constitute torture, and that would bring into question the validity of the evidence and it would be
unlikely that you would be able to sustain a prosecution if that was the only evidence you were
adducing. Now, having said that, this is not a like situation. This is a plea bargain. But I would
say that I don't think the bioethicist has said in relation to Mr Hicks that he was subjected to
any of these actions.

TONY JONES: No, in fact that's actually true, Philip Ruddock. He hasn't seen the interrogation logs
of David Hicks. I'm wondering has anyone in the Government or the security services perused those
interrogation logs or asked for them?

PHILIP RUDDOCK: Well what I can say is that consular visits have occurred on 19 occasions and David
Hicks has had an opportunity to raise with consular officials concerns about his treatment and my
recollection is that he made, on some of those occasions, positive statements about his treatment
by the United States officials in Guantanamo Bay.

TONY JONES: Well Philip Ruddock, that's where we'll have to leave you tonight. We thank you very
much for taking the time to come and talk to us.

PHILIP RUDDOCK: Always a pleasure, Tony. Thank you very much.