An opinion piece Anthony Mason Professor of Law at UNSW George Williams, originally published in Human Rights Defender magazine (Vol. 29 Number 4).

Guantanamo Bay has rightly been described as a ‘legal black hole’. Detainees are left in legal limbo, denied the full rights and protections they would be given as a person charged with a criminal offence or by the Geneva Conventions as a prisoner of law. They are also imprisoned and interrogated outside of the key protections of the US Bill of Rights.

This means the government and its agents can exert maximum power over detainees without the normal checks or balances. The idea is that this power can be used to break detainees’ will and so secure valuable intelligence. To this end, the Bush administration redefined torture narrowly as ‘severe pain equivalent to that associated with organ failure or death’. This left room for ‘enhanced interrogation’ techniques like sleep deprivation and waterboarding to be used.

As a tactic in the ‘war against terror’, the use of torture at Guantanamo Bay was always going to backfire. Information obtained using torture or duress is by its nature highly unreliable and so of dubious intelligence or other value. Those who use torture also erode their own moral credibility.

This highlighted another flaw with the US Government’s plan. When detainees at Guantanamo Bay revealed information about their complicity with terrorism, the way that the information was obtained compromised the ability of courts to try them. Detainees could confess guilt but remain beyond conviction.

To circumvent this, the US Government has sought to deny detainees access to the regular courts. At best, detainees have been afforded a trial in a specially-designed military commission.

These commissions are a twisted imitation of a court of law. Rather than giving detainees a fair hearing, they have been designed to enable convictions based upon evidence that no regular court would allow. This includes confessions obtained by duress and coercion and statements based on hearsay.

By contrast, courts rigorously exclude such material. The trial of Jack Thomas for a terrorism offence here in Australia is a good example. Held without charge by Pakistani authorities, he was placed in a kennel-like cell for approximately two weeks and was without food for about three days. He was assaulted and threatened with torture.

The Victorian Court of Appeal refused to admit admissions of guilt made by Jack Thomas into evidence, saying that the admissions were not voluntary because he did not have the free choice to speak or be silent.

It is easy to imagine what an Australian court might make of similar admissions by a Guantanamo Bay detainee.

And the same doubt may be cast on any plea bargain entered into to escape indefinite imprisonment at the facility.

About the author

George Williams is the Anthony Mason Professor of Law at the University of New South Wales.

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