David Hicks is a young man from Adelaide who was corrupted by al-Qaida propaganda and volunteered to train with them in Afghanistan. He left Afghanistan without having committed any terrorist or criminal act, then decided to go back to collect his meager belongings. Rather stupidly, that was after the terrorist attacks on the United States on Sept. 11, 2001. Captured by the Northern Alliance, he was handed over to the U.S. military and shipped to Guantanamo Bay in Cuba, where he has languished for 4 1/2 years.

Hicks’ long detention without trial is a sad metaphor of how the “war on terror” lost its moral compass: It is wrong in law and morality, and bad politics to boot. Australia’s failure to demand justice for him is an abdication of the government’s responsibility to protect its citizens.

The designation of prisoners as “enemy combatants” and their confinement and treatment in Guantanamo raised serious questions about due process, fair trials and impartial justice. The whole point of Guantanamo was to take prisoners outside the protection of law. In November 2003, British law justice Johan Steyn famously described it as a “legal black hole,” “a stain on United States justice.” In effect Washington asserted the right to be able to arrest foreigners anywhere in the world, take them to Guantanamo and lock them up forever, with no court questioning its actions in an undeclared and never-ending war against unnamed enemies.

Two separate issues merged in the public debate: the relevant legal regime that should apply to prisoners in this particular war, and the actual abuses in the treatment of prisoners. The abused accounted for a minority of prisoners held by the U.S., but they were integral to the war: They provided the standard of terror by which the good behavior of the rest would be judged and enforced.

A group of 76 Australian lawyers wrote an open letter to Prime Minister John Howard last month, describing Hicks’ proposed trial as illegal under international law because the military commissions “deny the basic rights to an independent and impartial trial and the procedures do not exclude evidence obtained by coercion, including the use of cruel, inhuman or degrading treatment.”

Still, in the final analysis, the robustness and resilience of the U.S. commitment to human rights laws and norms will be judged not by the breaches in the aftermath of 9/11, but by their reversal and attenuation through domestic judicial and political processes. The unlawfulness of trials by military commissions for Guantanamo prisoners, and the applicability of the Geneva Conventions, were confirmed by the U.S. Supreme Court in a landmark decision on June 29.

Guantanamo flouts not just due process, but also common decency and basic morality. The rise and diffusion of human rights norms and conventions and international humanitarian law were among the great achievements of the last century. Guantanamo represents a serious setback to this progressive development.

A human right, owed to every person simply as a human being, is inherently universal. Held only by human beings, but equally by all, it does not flow from any office, rank or relationship. The language of human rights embodies the intuition that the human species is one and every individual is entitled to equal moral consideration.

U.N. Security Council Resolution 1456 (Jan. 20, 2003) imposes an obligation on all states to ensure that counterterrorism measures comply with international human rights and humanitarian law obligations. The prohibition of torture appears on every short list of universal standards of human behavior. A posture of moral relativism can be profoundly racist, proclaiming in effect that “the other” is not worthy of the dignity that belongs inalienably to one.

By contrast, human rights advocacy rests, in Michael Ignatieff’s words, on “the moral imagination to feel the pain of others” as our own. It treats others as “rights-bearing equals” and amounts to “a juridical articulation of duty by those in zones of safety toward those in zones of danger.” It is vividly captured in a World War II joke that they came after the workers; I was not a worker, so I did not object. They came after the homosexuals; I wasn’t one, so I did not object. They came after the Jews; I wasn’t one, so I did not object. Then they came after me: There was no one left to object.

If not me, it could be my son in Hicks’ predicament. I want my government to put priority on its obligations to protect the lives and defend the rights of Australians over the politics of alliance solidarity or subservience to a foreign power.

Finally, it is bad politics. According to Irene Khan, secretary general of Amnesty International, “Guantanamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.” She added that “When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a license to others to commit abuse with impunity.” The Gulag analogy may be hyperbole, but that is cold comfort to those of us who believe in America — believe that it should hold to a higher standard than “we’re better than the gulag.”

Human Rights Watch argues that abuses committed by the U.S. in Guantanamo (and Iraq) significantly weaken the world’s ability to protect human rights. When the U.S. openly flouts the law, it tempts others to mimic its policy and reduces U.S. leverage over others: Washington cannot call on others to uphold principles it itself violates.

Guantanamo is shorthand for the hypocrisy and moral bankruptcy of a war that was meant to defend our values against assault from lawless barbarians. As such it has been among the more effective rallying cries and recruiting drives for the jihadists. As the conditions of detention of foreigners in Guantanamo became widely known in the Muslim world, they contributed to a hardening of jihad through shahid (martyrdom).

Nasra Hassan’s study of the phenomenon of suicide terrorism (Atlantic Monthly, June 2004) documents the belief among many Muslims that “death is preferable to Guantanamo.”

So, charge Hicks, or bring him home. If he has committed crimes, let him have his day in court, and pay the price if convicted. If not, if he was merely a delusional and lost kid, let him go. Either way, time to end this travesty. Nothing he did was a crime under Australian law at the time, which is why the Howard government is reluctant to bring him home, as he cannot be charged for any offense in Australia. But the net result is that Australia is the only country to have accepted the holding of one of its citizens at Guantanamo. Had he not had the misfortune to be Australian, but had been a Briton or Saudi Arabian, he would be home by now. Not a thought to fill one with pride in being Australian.

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