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Transcript of doorstop: 31 March 2007: Hicks; British soldiers.

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DATE: 31 March 2007

TITLE: Doorstop - Hicks, British soldiers.

MR DOWNER: I just want to say that from the point of view of the Australian Government, we are pleased that the David Hicks saga has finally come to a conclusion. This plea bargain has been entered into by both the Military Commission - the convening authority - the prosecution and the defence. They’ve come up with an arrangement that they are all satisfied with and if they are satisfied with it, that’s acceptable to us and because of the transfer agreement, Hicks will be brought back here as soon as is practical to serve out the remainder of his sentence in Australia. The nine months that he has still to serve begins right away so he won’t serve a full nine months back in Australia. We have to get him back here within 60 days. We’ll certainly do that - some of the paperwork has been completed already. We will have to work out the logistics of getting him back here. A lot of countries won’t feel happy with someone like David Hicks - with his record - transiting through their countries but we’ll have to work all that out. In any case we will obviously certainly get him back here within 60 days - I would have thought it would be much sooner than that. Our expectation - although these details still have to be worked out - but our expectation is that he will serve out the rest of his sentence in Adelaide.

JOURNALIST: (inaudible).

MR DOWNER: I assume so. That would be a matter for negotiation with the state government. They obviously have responsibility for the prison. But given the seriousness of the charges - given the now not only the admission of guilt but the agreement on the facts by Mr Hicks - looking at those facts, it is appropriate clearly that he does serve a custodial sentence. This isn’t a light matter, this is a serious matter. I’ve always said this: if an Australian goes overseas and becomes involved with terrorist organisations, then I can only say that inevitably they are going to get into a great deal of difficulty. In David Hicks case, he was involved with four different terrorist organisations - the Kosovo Liberation front, the Taliban, Lashkar-e Tayyiba and Al-Qaeda. He wasn’t somebody who just happened to be backpacking through Afghanistan and unfortunately got tied up with Al-Qaeda. He is somebody who quite deliberately went out there and became involved with these organisations. Now, any Australians who get involved in terrorist organisations in any way at all, is going to get into a great deal of trouble. So that’s what has happened to David Hicks. There has been enormous controversy about it of course but when you are fighting terrorism, inevitably you are going to have to do so with a great deal of determination.

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JOURNALIST: Terry is accusing you…


JOURNALIST: Terry Hicks is saying it should have been done four and a half years earlier and the only reason it has been done now is because an election is coming up.

MR DOWNER: Well there is not an election coming up in the United States and this has been done in the United States, not done in Australia. Terry Hicks has stood by his son at least through this process and that is laudable. He will always put in a good word for his son. I can assure you that no matter what any of my children ever did in life, I would always stand by them too. So that’s one thing. I wouldn’t say though that Terry Hicks was an objective observer. I would say that anybody who became involved in an organisation like Al-Qaeda - anybody who got involved in the world’s most evil terrorist organisation which has killed thousands upon thousands of people including many Australians - anybody who gets involved in an organisation like that is going to get into a great deal of difficulty.

JOURNALIST: David has pleaded not guilty up until now…

MR DOWNER: No he hasn’t - he hasn’t pleaded up until now.

JOURNALIST: He claims that he has been not guilty…is it a possibility that he has pleaded not guilty just to get out of Guantanamo Bay?

MR DOWNER: No because the facts are perfectly clear. We obviously have had access to facts in relation to David Hicks overseas and we’ve talked about them from time to time over the years - often attacked about talking about the facts - but people are entitled to know what the facts are. They shouldn’t be kept a secret. We know that he was involved with Al-Qaeda. We know that he was involved in training with Al-Qaeda. We know that he was

involved with Lashkar-e Tayyiba and the Taliban. All of those things have been known to us throughout. So to suggest - and David Hicks is not suggesting or not even his father has ever suggested, by the way - but some of the sort of ‘Free David Hicks’ campaigners that actually he was just an innocent abroad. A poor little boy - as Tanya Plibersek described him a couple of days ago. To suggest that is absolutely absurd. At the end of the day, if you want to win the fight against terrorism and protect Australian lives, you have to be determined to do so. You have to be certain that people who get involved in terrorist organisations are not able to continue those activities.

JOURNALIST: But you can’t deny the timing. I mean let’s face it, there is an election coming up - that’s what the people are thinking, that’s what the Australian people are thinking.

MR DOWNER: The people are thinking - that’s what the opponents of the Government will always say. The election actually isn’t until the end of the year. We’re at the beginning of the year now. It is a fair way off. This hasn’t just happened because there is an election at the

end of the year.

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JOURNALIST: But he’s been gagged.

MR DOWNER: This is not a decision that has been made by the Australian Government. These are not decisions of the Australian Government. These are decisions of the Military Commission - the convening authority - the prosecution and the defence. The only Australians in that long list of people are David Hicks himself and a couple of Australian lawyers - Griffin and McLeod - who have been providing, no doubt very good, legal advice to Major Mori and his team. This is basically something that - beyond those people - has been negotiated amongst Americans. Now the terms of the plea bargain, they are not terms that are set by the Australian Government. They are terms that are set by negotiation between the defence team, the convening authority and the prosecution. That’s the beginning and the end of it.

JOURNALIST: Do you think it is fair that he has had to retract claims that he has been abused in Guantanamo Bay?

MR DOWNER: It’s fair if the claims aren’t true, isn’t it?

JOURNALIST: Well the claims (inaudible)…

MR DOWNER: But what’s before the British Court is a more complex sort of an issue. What’s before the British Court is an application by David Hicks to become a British citizen. Let me say about those claims, two things. Every time we have investigated those claims and

said that there was no evidence to support those claims - and we have done this on many occasions - we have been howled down by the sort of ‘Save David Hicks’, ‘David Hicks is our poster boy’, ‘a hero of the anti-American, anti-Bush movement’, we’ve been howled

down by them. Vicious letters to the editor, columns, Labor Party abuse and so on. Yet over and over again, whenever these claims have been made, we have investigated them because we have a consular responsibility to do that. We persuaded the Americans to set up two

separate investigations into claims that David Hicks had been abused. Neither of those investigations showed that he had been abused. We made it public that those investigations had taken place. There were still further allegations and there was never any evidence of this being correct. We were told that he was gaunt and frail and thin - and it was all over The Age and other newspapers - about what terrible shape he was in until the journalists got there and

found that well, that story actually wasn’t true after all. Now David Hicks says he wasn’t abused. We say that there were claims that he was, we set up investigations into those claims - none of those investigations showed that he had been abused. The other thing I will say is this: everybody who has been involved in training with Al-Qaeda who’ve been captured have gone out and claimed that once they were captured, they had been abused. It is Al-Qaeda 101. It doesn’t matter if someone is talking here just about David Hicks. But all of the people that have been captured training with Al-Qaeda have always claimed that they are being abused and there are always plenty of people who will say ‘hooray, somebody is claiming the Americans are abusing somebody’, that claim must be right. A claim is not right just because somebody makes it.

JOURNALIST: But why make him sign off that it didn’t happen?

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MR DOWNER: I didn’t make him sign it off.

JOURNALIST: No, but why would they make him sign off that it didn’t happen if it didn’t happen. You know, if it did happen…


JOURNALIST: You know what I mean, you know what I mean…

MR DOWNER: (laughing) I’ll have to read the transcript of this one. Yeah, I know what you are saying. It’s alright.

JOURNALIST: They make him sign off to say that it didn’t happen, why do that?

MR DOWNER: Well because these claims have been made. They are obviously very serious claims that are being made and they have been investigated and found not to be true. Every so often in these contentious public issues, somebody will wheel out the truth and give it a bit of a run around the ground for a while and here it is - we’ve seen it. The truth is - when I said in January, at the end of January, that somebody had seen David Hicks in Guantanamo Bay and he said he seemed ok, that’s all I said - there was an absolute howl of outrage from the ‘We Love David Hicks’ campaign, saying that how could this possibly be right. Now, people have seen David Hicks. He is obviously not deeply ill. He is not gaunt and thin and withering away. He’s been in a prison where they do actually have food and water; he hasn’t actually been deprived of food and water.

JOURNALIST: You haven’t seen him recently.

MR DOWNER: I haven’t seen him at all.

JOURNALIST: But no, you’ve only seen pictures of him recently.

MR DOWNER: No, I’ve only seen drawings of him. But I have spoken to people - and I really appreciate these questions because this is what we’ve had for five years - that everything he has claimed and everything that his lawyers have claimed and The Age newspaper and all sorts of people - that is holy writ. Every time we say there is no evidence to support that, they just laugh. Now the fact is he is in reasonably good health. Of course he hasn’t enjoyed being locked up for the last five years and he won’t enjoy being locked up for

the next nine months. I appreciate that. But we’ve had 19 different visits of officials to see David Hicks. There have been many consular visits to go and see him. It’s not just a matter of getting on a bus and going down the road to see him. They have had to - the officials from Washington - have had to get on planes and go all the way down to Guantanamo Bay to see him. They’ve done it on many occasions and on every single occasions, he has seemed to be more or less ok. He has had some stomach complaints and one or two other things like that. But he hasn’t on any of these occasions been seriously ill. There hasn’t been evidence of excessive abuse or anything like that. Now he has admitted that’s true and that’s good.

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JOURNALIST: You mentioned paperwork was in place. Of the 60 days that are required to bring him out here, (inaudible) within those 60 days it will take to get him out here?

MR DOWNER: I don’t want to stipulate how long it will take them but it won’t take as long as 60 days. It will be less than that.

JOURNALIST: How much less?

MR DOWNER: I just don’t know. We have to finish the paperwork - you can imagine that that sort of thing is never as quick as you might hope - and then organise the transport. You can organise the plane but organising routes and getting clearances to take somebody who has been convicted of material support for a terrorist organisation is not always that easy. But anyway, we’ll deal with it within the 60 days.

JOURNALIST: Now that he’s convicted of being a terrorist, does the nine months seem a bit (inaudible).

MR DOWNER: Well he’s been in prison for five years already so…

JOURNALIST: But that’s not included in the sentence.

MR DOWNER: Technically it is not but obviously in the context of a plea bargain, the fact that he has served the five years is a significant fact. The Military Commission Act, as I understand it, doesn’t provide for time served being taken into account before a conviction. But nevertheless, in the context of the plea bargaining, clearly that’s something the lawyers have taken into account.

JOURNALIST: So you’re not surprised at nine months?

MR DOWNER: It will be, in reality, five years and whatever. It will be nearly six years, won’t it? It will be about six years so that will be a fair while.

JOURNALIST: Terry Hicks said that he knew weeks before and how long has your department known, or yourself known, of any deals that had been arranged?

MR DOWNER: No deal had been concluded until today. There have obviously been discussions over a period of time. I think the first tentative attempt to negotiate a plea bargain was about two years ago but this plea bargain has obviously worked - well I’ll let the lawyers talk to you about it - but this has come about over the last couple of weeks.

JOURNALIST: Terry said the deal was done several weeks ago.

MR DOWNER: Well, right - that’s fair enough - that’s what he says. The deal wasn’t done until today and there have been discussions which go back - well I wouldn’t say several weeks, not that long - but there have been discussions between the lawyers and consideration

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of this - it is hard to put a starting point on it but it has obviously come together in the last week or so.

JOURNALIST: (inaudible) about the Military Commissions. Do you agree with that?

MR DOWNER: It has obviously been very controversial. He was talking about Guantanamo Bay I think actually. The difficulty - he himself has made clear - the difficulty is what do you do with people who are combatants but not combatants in the meaning of the Geneva Convention. That is the difficulty. So you have people out there fighting for terrorist organisations but they are not wearing the uniform of an army. Normally with somebody who is in an army - well with somebody who is in an army, if they are taken prisoner, they can be

held for the duration of the conflict. Now what do you do in a situation like this where there are people fighting for terrorist organisations - not technically an army within the meaning of the Geneva Conventions - and they are captured. How do you define the end of the war? That’s the other thing. So it is quite a difficult problem. It is quite a difficult legal problem and that’s of course why it is inevitably going to be controversial - because of the legal difficulties. So the political point if you like - or the public point - is simple: that is, you do want to defeat these terrorists. How else can you do it? What would be a better system? Obviously the Americans are always looking at that to see if they can find a better system and that is something that Robert Gates has been doing. He’s told me this himself.

JOURNALIST: Do you support the idea that David has been gagged for 12 months? Do you support that notion?

MR DOWNER: It’s fine. It is the agreement that has been reached and whatever has been decided by the lawyers and accepted by the Military Commission - whatever the defence of David Hicks is of course the key to the defence - whatever he regards as acceptable here and whatever the prosecution regards as acceptable and the process regards as acceptable, that’s fine by us. We’ll go along with that.

JOURNALIST: Do you have concerns once the gag is lifted - what he might come out and say?

MR DOWNER: No, I have no concerns. I don’t mind whether he’s gagged or not. That’s nothing to do with me. I don’t know whether it would matter one way or another to us so much but anyway, it’s just been part of the plea bargain and so we’ll just accept what’s been negotiated.

JOURNALIST: (inaudible)

MR DOWNER: That would be a matter for the Federal Police, not for the Government - not for the Attorney-General, or me, or the Prime Minister - more the Federal Police. What happens under the legislation for control order - as I understand it - is the Australian Federal Police, well they might get information from ASIO - but they make an application to a judicial officer. So a federal magistrate or a judge. Then the judicial officer makes a decision on whether a control order should be issued. So I don’t know. That will have to wait. We’ll have to wait for nine months and see what happens then.

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JOURNALIST: Do you think it would be appropriate?

MR DOWNER: It depends on the circumstances at the time. That won’t even be considered until the end of the year.

JOURNALIST: How will he get home?

MR DOWNER: By aircraft.

JOURNALIST: By charter?

MR DOWNER: Probably a charter flight.

JOURNALIST: What sort of charter plane?

MR DOWNER: What sort of plane will it be?

JOURNALIST: Is it a luxury plane…

MR DOWNER: A luxury plane?

JOURNALIST: going via Tahiti?

MR DOWNER: Have a holiday in Tahiti on the way you think? I don’t know what type of plane. Perhaps the precedent the media could look at - since I have absolutely no idea, nobody has told me anything about the type of plane it might be - but the precedent you might have a look at is when Habib was brought back to Australia. He was brought back on a plane that was chartered. But anyway, whatever the comfort of the plane - great or hard -

Hicks will then go to prison.

JOURNALIST: Will the Government ensure that no money is made out of his story?

MR DOWNER: That is - as I understand it - part of the arrangement. That he would not sell - for profit for himself - his own story.

JOURNALIST: (inaudible)

MR DOWNER: There is federal legislation - you have to ask the Attorney-General about this though, he’ll murder me if I get this wrong - but there is federal legislation in relation to profiting from the proceeds of crime, where the Federal Government can stop people from profiting from the proceeds of crime. On this occasions though, I think this is also part of the plea bargain.

JOURNALIST: Security at Yatala - is there enough there for (inaudible).

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MR DOWNER: That’s one you can put to there’s an Attorney-General in South Australia called Mike Atkinson - you go and ask him. I don’t have any idea. No, there’s a Minister for Prisons separate, isn’t there? Who is the Minister for Prisons?

JOURNALIST: (inaudible).

MR DOWNER: You ask her. I don’t know.

JOURNALIST: (inaudible).

MR DOWNER: Crikey, you are getting into such detail here. I have no idea. That will be a matter of negotiation between the Attorney-General and the State Government.

JOURNALIST: Minister, what is the latest on the hostages?

MR DOWNER: The British hostages you mean? Well I’ll just say this. On Thursday evening I rang the Iranian Foreign Minister - who I know pretty well - to express my concern about the taking of the British hostages. I made this point to him: holding these people and

showing them on television in the way the Iranians have been doing is going to arouse enormous antipathy in the international community and further isolate Iran - which has already been isolated over its nuclear program and the passage of two Security Council

resolutions. He, not surprisingly, claimed that the British sailors had been on the Iranian side of the border. I said to him the information we have from the British and the Americans is that they were actually on the Iraqi side of the border. But I said, look, for the sake of an argument here, let us assume you were right and they were on the Iranian side of the border - which I don’t accept by the way. Surely, seizing the people and holding them as hostages is a disproportionate response. What you should do in this situation is just send these people back and make the normal diplomatic process. I said we have a maritime border with Indonesia. There are transgressions from time to time across those borders but unless it is criminal activity that people are involved in, then they are just pushed back across the border and sometimes diplomatic processes are lodged. But I said to him that this is just going to blow up out of control unless you quickly sort it out with the British. Why did I do this? I did this because obviously the British are very close allies and friends of ours, but also I have a good personal relationship with the Foreign Minister - the Iranian Foreign Minister - and I thought I would use my personal association with him to try to help.

JOURNALIST: Do you have any concerns for any Australians sailors who might be in a similar region?

MR DOWNER: I do because this British Ship - which I think was called HMS Cornwall, I think that’s what it’s called - was patrolling in exactly the same place that HMAS Toowoomba had been patrolling before and since that time. That is a stretch of water that HMAS Toowoomba - which is the ship we currently have in the Persian Gulf - regularly patrols.

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