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limits of australian citizenship Arrow vol 2 no 3 contents
About borderlands volume 2 number 3, 2003


David Hicks, Mamdouh Habib and the
limits of Australian Citizenship

Binoy Kampmark
University of Queensland


I will continue to take an interest in the well-being of Mr Hicks as an Australian citizen
to ensure that he is being treated humanely.

Alexander Downer, Answer to Question on notice, 18 March 2003.

1. Citizenship is delivered in a brown paper bag at Australian ceremonies. You apply beforehand, and, if lucky, you are asked to attend a ceremony, where you are invited to take an oath (whether to God or otherwise), and witness the spectacle of having citizenship thrust upon you. ‘There has never been a better time to become an Australian citizen’ is marked on the package, which is signed by the Immigration Minister. Brown bags signify this entire process: we await the displays, the cameo aboriginal troupe intent on welcoming the naturalised citizen with a fire ceremony that misfires (or never fires), a lady with a speech impediment who deputises for the minister for Citizenship, and the various tiers of government expounding the virtues of civic responsibility. In short, the entire ceremony is a generous self-mocking; it is citizenship as comedy, a display of cultural symbols that are easily interchanged and shifted. The mocking of citizenship lies at the centre of Australia’s discourse on what it means to be an Australian citizen. It is parodic; it does not take itself seriously, which, some might argue, is its great strength. Nationalism has a certain perniciousness, especially misdirected nationalism. One might even suggest that Australia’s present Prime Minister, who seeks to promote the military at every available moment, has sought to cultivate a more belligerent nationalism, the nationalism of the military parade, medals and the cult of the fallen (Witness the choreography of commemoration during the visit by George W. Bush on 23 October at the Australian Memorial in Canberra).

2. But the ceremony of naturalisation is not merely a metaphor of an empty package; it is a general comment on citizenship rights. If the ceremony is vacuous, then it can pass no genuine rights. It is merely a theatre of legalisms. The oration of Pericles documented by Thucydides made it clear that citizenship (even in its ancient form) was not merely rhetorical, for in his opinion, ‘each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and to do this, moreover, with exceptional grace and exceptional versatility’ (Thucydides, 1954: 117-8).

3. What then, is Australian citizenship, especially after the capture of both David Hicks and Mamdouh Habib and their subsequent detention at a colonial outpost of the United States? What is crucial in defining contemporary Australian citizenship hinges on various factors: a ‘war’ on terrorism, the United States led mission against it, and the attempt to define the rights of non-American citizenship within this new international system. It is suggested here that the juridical and social limits of what it means to be an Australian citizen must be interrogated, its boundaries in the present context of terrorism and refugee discrimination sketched. Within the global political space of the ‘war on terror’, the notions of citizenship have become complex, limited by identity politics. Because citizenship is only superficially recognised as the equal recognition offered a citizen, the state revokes such recognition at politically opportune moments. When a crime is committed, the citizen is deprived of certain liberties and rights.

4. This debate regarding the two Australian detainees can be identified in the context of various cultural and political tropes that have been developed in direct response to the treatment of Hicks and Habib. Notably, Hicks’ father Terry has argued that the Guantanamo Bay detention of Australian citizens parallels a similar incident of betrayal by the Australian government over a century prior: the fate and trial of Breaker Morant. Here, the clash between colonial attempts at defining citizenship and the obligations demanded again surface against an imperial power.

5. While the Hicks discourse is privileged in its white-centric favouritism of rights, the case with Habib is more complex. Habib is faced with the problem of being a Muslim in a conflict purportedly arraigned against Muslim fundamentalism. In Australia, the refugee discourse had elevated the debate on Islam to heights that have made the search for liberties on the part of Habib problematic. Nonetheless, his problem is essentially similar to Hicks: abandonment, an Australian is rendered legally amorphous by virtue of political disinterestedness. Both cases involve a key development: the founding of a new citizenship within the framework of imperial favours and dispensations, a non-American citizenship that is negated of its value because of its hierarchical inferiority to American citizenship.

Situating citizenship

6. Citizenship, as Kelly writes, ‘applies to a free city-dweller (a bourgeois) or to a member of a state who exchanges political allegiance for the right to certain privileges and protections (the dictionary’s "right to privilege" as opposed to "right," tout court, is a notion fraught with some ambiguity)’ (Turner and Hamilton, 1994: 31). Situating Australian citizenship has been problematic, especially given arguments that citizenship participation is gradually eroding in an environment of increased alienation ushered in by increased bureaucratization (Vandenberg, 2000). Allied to this, somewhat paradoxically, is the increased irrelevance of the national citizenship model in the age of globalisation, which gives us cause to reason how we might interpret the plights of both Hicks and Habib.

7. But in historicizing Australian citizenship, we find early commentators sceptical, even silent on the subject. Australia’s first Prime Minister, when a state delegate to the Constitution Convention, articulated the view against John Quick during the debates of 1898 that an express inclusion of citizenship in the constitution was needless. In Barton’s words, ‘No such term as citizen or citizenship is to be found in the long roll of enactments, so far as I can recollect, that deal with the position of subjects of the United Kingdom, and I not think we have been in the habit of using that term under own enactments in any of our colonies’ (1898: 1764). This is to be contrasted with such basic provisions as exist in legal documents such as the Italian Constitution: ‘All citizens are socially equal and equal before the law, without distinction on the basis of sex, race, language, religion, political opinion, or social or personal conditions’ (Bobbio, 1996: 114). Confusion on concepts of citizenship subsequently developed in Australia, since it was often a ‘hollow’ concept to begin with. First it was absent, and then, as it took form, it developed exclusionary tendencies. The etymology of the civic tradition is based on the notion of belonging. Yet we find the authors of a text on Australian citizenship suggesting that citizenship, when it came to the application to Aboriginals, specifically separated ‘citizenship status from rights and benefits’ (Chesterman and Galligan, 1999: 10). Citizenship, in its obsession with charting the boundaries of belonging, excludes and privileges.

8. European citizenship dialogue distinguished itself, not through critiquing the state inherent in the nature of utilitarian individualism, but by suggesting a value for state interventionism on behalf of citizenship rights. In German theories on the subject of the citizen, argue Bryan S. Turner and Peter Hamilton, the state becomes valuable for sanctioning rights: ‘where the individual is made free by the intervention of the state’ or requires ‘the protection of the state against the limitations of egotistical interests’ (1994, I: vii). The role of the state is thus to secure an essential aspect of modern citizenship: its protection. One important aspect of T. H. Marshall’s influential formulation argued that citizenship’s ‘civil element is composed of the rights necessary for individual freedom – liberty of the person, freedom of speech, thought, and faith, the right to own property and to conclude valid contracts, and the right to justice’ (1965: 78ff). There is freedom from the state, but there is also an implicit that citizenship involves some bolster of state protection.

9. Contemporary political literature on the subject has attempted to expand citizenship into a higher ethical ideal, encompassing a broader identification with local institutions and community. Will Kymlicka, in his attempt to define citizenship within the context of a multicultural community, has pointed out that ‘most liberal theorists have recognized that citizenship is not just a legal status, defined by a set of rights and responsibilities, but also an identity, an expression of one’s membership in a political community’ (1995: 192).

10. How are these citizenship rights mediated in the present conflict? Even if liberal scholars such as Norberto Bobbio and Ronald Dworkin regard the right as the defining aspect of modernity (Bobbio is optimistic to suggest that we are living in an ‘age of rights’), the right has itself been situational since an ‘important cultural shift in early modernity concerns identity’ (Coleman and Higgins; in Vandenberg, 2000: 63). International relations scholar Alan Joxe argues that the state is increasingly abdicating its interest in the citizen’s rights; it has ceased to hold them in trust or as a mediator of class conflict (Joxe, 2002). Hicks and Habib are examples of this particular imagining of identity. If we take Charles Taylor’s views on identity, identity is less a subjective experience of the individual than the recognition that moves from the group (Coleman and Higgins, in Vandenberg, 2000: 63).

11. I argue that this mediation of Australian rights as part of citizenship has shifted beyond Australia, that it has been rendered the victim of hegemony within a new world order centred on Washington’s policy of the ‘war on terror’. This has some rough parallels with a previous state of ‘non-conflict’ – the Cold War – when States on both sides of the ideological divide took steps to impair the realisation of citizenship rights. In the West, citizenship was wedged between the class divide: suspected progressives were targeted as unworthy citizens, their rights conditional on patriotism. In the United States, the execution of Julius and Ethel Rosenberg for Soviet espionage was justified on the basis that their ‘leftism’ was banal and unpatriotic. The American Jewish Committee’s journal Commentary introduced an article on the Rosenbergs in 1953 baffled as to how American Jews could have ‘betrayed the free world in favour of communist tyranny’ (Warshow, 1953: 413). The author argued how the Rosenbergs were classic anti-citizens of the republic: Julius ‘did not know that he had not read [the Declaration of Independence]’ while the couple reflected ‘awkwardness and falsity of the Rosenberg’s relations to culture, to sports, and to themselves’ (1953: 416).

12. This translation of Australian citizenship rights into a self-interested, foreign-sphere has violated a key precept of the state as founded on democratic principles; or, as two political theorists note: ‘The state must not be allowed to fall into the hands of men concerned only for the interest of a limited group. It must be sensitive to all, without succumbing to any one or to my limited coalition of interests’ (Benn and Peters, 1964: 324). The identity behind citizenship as represented by the Hicks and Habib cases represents a modification of rights and liberties in accordance with Canberra’s subordination of its citizen’s rights to the ‘war on terror’. Kymlicka’s concept of belonging to the political community is significant in locating Australian citizenship notions after 9/11, for it is precisely this limitation of ‘belonging’ that constitutes a revaluation, exemplified by the Australian response to Hicks and Habib. The distinct power structures that mediate what it is to be a citizen are no longer located in Australia. One must almost forgive Alexander Downer and Darryl Williams for their impotence in seeking Australian representation for Hicks. In the war against terror, there are no boundaries to speak of, no national loyalties to accept excepting those of the central power in issue here: the United States.

Hicks and Habib: roles assigned

13. Who are these detainees? On the surface, they seem like so many Australians. For the purposes of any ‘war on terror’, they fulfil the role of enemy, the enemy within, the individual who betrayed ‘Australian values.’ What do we know about their backgrounds? Not much. The Melbourne Age chose to identify Hicks simply as ‘chicken plucker, jackaroo and Muslim convert’. He left Australia in November 1999 ‘dressed in baggy trousers and a white knitted cap, almost certainly was a member of terrorist group al-Qaeda … despite his family’s belief that he was not’ (Wilkinson et al, 2003: 1). Habib is described as one who was on tour in Karachi in October 2001, and was arrested for suspected links to al-Qaeda. The connections are tenuous: he was assaulted by an individual who had al-Qaeda connections. That mere assault is a strand in the fabric of guilt. NSW police could find no credible evidence that Habib posed a threat. As one paper reported in early August, ‘NSW police confirmed yesterday what the family of Mamdouh Habib, one of two Australians detained at the US naval base on Guantanamo Bay, has always known - he is not a threat to anyone’ (Harris, 2003: 2). This is where identity intervenes to moderate citizenship. It is revoked; it is repudiated by rumour, a classic ingredient of paranoia that terrorism breeds.

14. The detainees are given the rhetorical gloss of non-humans. We cannot find traces of what it is that makes them either Australian or for that matter, human beings. When human details are cited, they are done to diminish them in the discourse of citizenship. The key to citizenship in the age of terror is the embrace of an essentially anti-human discourse. The terrorist suspect is rendered insignificant; he is valuable only as terrorist. At the juridical level, he is an ‘illegal non-combatant’. The classification is revealing. The terrorist suspect does not exist before the eyes of the law as a recognised category; he is already in a pre-assigned category: that of the ‘illegal’. He is therefore a non-legal person. This has been part of the conservative discourse in US political circles: the reduction of the terrorist to legal anonymity. ‘Among the distinguishing characteristics of unlawful combatants are these: they deliberately attack civilians, and they deliberately infiltrate among civilians by not wearing an insignia or uniform’ (Krauthammer, 2002: A25). Hicks and Habib, being Australians, endure the added disadvantage of citizenship deprivation.

15. Guantanamo Bay, where the detainees are presently kept, beyond the US mainland and therefore, beyond the reach of US courts, allows non-Americans to be placed within this newly envisaged category of non-citizen. Suvendrini Perera calls this a ‘place of exception’ where non-American citizens are ‘denationalised’. ‘This U.S military base at Guantanomo Bay, Cuba, a symbol of the unfinished business of an older war, is a dislocating localization par excellence as the holding place for those prisoners of the war in Afghanistan who are deemed somehow not to be prisoners of war’ (Perera, 2002). Habib and Hicks are thus taken to Camp X-Ray, where the law of the US has no reach. Why, asks Donald Rumsfeld, should the Geneva Conventions apply to the detainees in Camp X-Ray? This revaluation of the ‘illegal’ combatant provides a new ontology of human rights within the context of citizenship unique in the treatment of ‘war criminals’ (we do not, in fact, know what sort of criminality a ‘non-combatant’ can be accused of). The US War Department (more honestly named then, rather than today’s Department of Defense) under Henry L. Stimson’s stewardship during World War II was far more open to notions of clothing combatants with minimum constitutional guarantees. We find now, in the redefined ‘war’ (itself a metaphor of emptiness) that the definition of combatants is a negative – they are ‘non-combatants’, because the conflict is itself a negative, a ‘non-war’.

16. This reification of citizenship also provides parallels with other reductive strategies adopted towards minority groups. The approach to Habib and Hicks bears the hallmarks of the refugee discourse in Australia, which is marked, as Don McMaster (2002) points out, by an ‘alien’ status: ‘they have no legal, political or social identity.’ The detainees have become in Australian perceptions of citizenship substitute refugees, non-citizens, or, as has been previously discussed in the literature on the subject, a non-person. We find a letter to the Australian from Malvern, Victoria linking the various concepts as a consistent scheme in the Howard Government’s policy: ‘Howard Government’s total abandonment of David Hicks is a national disgrace and ranks with throwing children into barbed wire compounds and throwing away the key’ (Everingham, 2003: 8). In fact, the refugee and the two detained Australians share the same fate. They are abandoned by the Howard Government, left to languish in Australia’s network of detention centres or America’s isolated camps in Cuba.

Recognition in American space

17. In American space, justice exempts the citizen of Empire from trial by military commission. The rules of US empire and justice seem markedly similar to those of other empires: it is the privilege of being the citizen of the dominant empire that grants you immunities, dispensations and rights. In Rome, the empire granted its citizens privileges; citizenship was treasured, and any rival notion of citizenship considered base and irrelevant. We note this particular tendency in the scholarship on Roman citizenship, with an interesting parallel that Rome introduced a qualification into its grant. This came in the form of the civitas sine suffragio – a citizenship without franchise; legal rights without the accommodation of political rights (Oliver and Heater, 1994: 12). This particular division of rights acts as an imperial metaphor at present; non-American citizenship is not considered a grant of total legal representation. This modifies the nature of citizenship described by Melbourne Professor of History Ernest Scott in 1911 as ‘Empire’ citizenship, since the Australian subject within the British empire had a sense not merely of being an independent juridical subject, but also a subject loyal to empire. Despite being ‘proud of our Empire’, Australians could still be ‘very strong Home Rulers’, suspicious of ‘any proposal which may seem to carry with it any curtailment of their power to govern themselves’ (1993: 22).

18. The imperial metaphor faces the challenge posed by the key text of neo-Marxism, Michael Hardt and Antonio Negri’s Empire. In that text, discussions about a Rome in the modern era are superfluous - there are no central empires anymore, merely rhizomic networks. The arguments the authors posed are pertinent, for the assumption that the present ‘form of power or sovereignty’ is different from ‘the imperialisms that were developed by the European nation states during the modern period’ with only the US having a ‘privileged role’ in the nerve centre (Hardt, 2002). But these arguments misconstrue the more conventional processes of empire evident in the present international order: invasions, indoctrination through media control, police control and the use of allies. There is a Rome of citizenship, and its privileges and obligations have been extended or withdrawn at its own behest. The US empire may be awkward and stagger into such theatres as Iraq, but it remains nonetheless, the preponderant power after the Cold War. The key difference from more traditional empires is that the American empire invades and assumes power without responsibility (Joxe, 2002), hence its pleas at the UN for more assistance in governing Iraq.

19. Modern parallels can therefore be drawn with previous examples of citizenship. The US citizen will be tried by US law, not international law (even if US law can be regarded as a hybrid of international and local norms), for international law does not bind the writ of empires as yet. This is evident in the John Walker Lindh case, and evident in the view that the United States is a Hobbesian power rather than a force governed by the rule of law. The American suspect, captured in Afghanistan in the company of Taliban soldiers, was tried under standard criminal proceedings, with the privileges due under the US Constitution, including due process and the right of appeal. Non-US citizens are, in contrast, more likely to be tried under military commission, and Hicks and Habib had no such opportunity to appeal any sentence decreed by the commission. As legally vacuous vessels, we have a situation where the two Australians have been deprived of legal rights within Australia, where they are discredited as legal citizens by the Howard government (not entitled to the presumption of innocence for instance); and in Guantanamo Bay, where they are even less: non-citizens. It is a conspiracy between governments, a consensus between vassal and lord, with the citizens of the lesser state denationalised within the compact of an imperial arrangement. In the cases of both detainees, it is far more appropriate to term their legal identity as non-American rather than Australian; the primary consideration is that their Australianness counts for nought. It is precisely the absence of an American identity in the coalition that deems their identity irrelevant for many Australians.

20. In American space, non-Americans need not even be charged with any recognisable offence; they can be detained for months without trial and without classification. The niche of guilt has been readied for them. Even in an interview in July 2003, Senator Robert Hill would still concede to not knowing the plight of Hicks; he had not been charged, and one could only speculate: a ‘terrorist’ charge perhaps, but nothing more certain than that. An illegal combatant yes (hence legally invisible in formalised categories of combat), a clearly defined charge, no.

21. He is not permitted, as Terry Hicks, his father claimed, the leisure of being ‘an adventurer’ (Kremmer, 2003: 9). He is, in fact, not permitted the knowledge of location, for within American space, blessed is the ignorant non-American citizen: ‘He’s been there for over a year and a half, and he literally doesn’t even know where he is,’ suggested Joe Margulies American civil rights lawyer to the Australian radio station Triple J (qtd in Debelle and Banham, 2003). Australian legal commentators, notably constitutional lawyer George Williams, was also puzzled by the legal invisibility of Hicks and Habib: ‘And the reason is, is because neither of those people has had access to a lawyer of their choice, nor has information about what they might have been done made publicly available, and in those circumstances we’re left with both of them continuing in detention but without us being able to know whether in fact they've committed any crime’ (2003).

22. This mistreatment of Australian citizens in the American setting seems to reveal a peculiarly intolerant perception on the part of the Howard government as to how Australians are to exercise their citizenship. In citizenship language, we might borrow a phrase from just-war philosopher Michael Walzer: neither Habib nor Hicks are allowed to be ‘pluralist’, citizens who are permitted a degree of perfidiousness, self-realisation through participating in endeavours that might be considered against the interests of the state (Walzer, 1971: 227). One might make an argument that, in a society that encourages active citizenship (to again refer to that citizenship ceremony, where each official lauds attempts to get involved the local community – one such tired reference was to a Green group) the active pursuit of ideological interest should be encouraged. Of course, this is problematic in the context of ideological conflicts with the state. Walzer acknowledges the other side of such citizenship, where members of various ‘non-official, voluntary groups’ have members who ‘actually [may] make claims against the state, and they may be obligated to disobey its laws …[becoming] disobedient citizens and, in critical cases, traitors’ (Walzer, 1971: 227).

23. But these preceding observations would only be applicable in any case if such a figure as Hicks had flirted with the prospects of betraying his Australian ideals. This perfidiousness occurred after the fact; in 1999, when the Hicks adventure began, the contracts with the Taliban were still being signed, and Washington’s policy had not shifted significantly in the Middle East. This is indicative of how the space of criminality in the ‘war on terror’ can be extended for such non-juridical persons beyond Australia’s borders. What was not a crime when Hicks joined Al Qaeda can be made a crime after the fact. The journalists of the Age noted that it ‘was not then a crime either in the US or Australia - when he was captured, the Federal Government had yet to enact its anti-terrorism legislation, making it an offence to associate abroad with terrorist groups’ (Wilkinson et al, 2003: 1). A letter to the Australian from Helensvale in Queensland noted that ‘he volunteered to fight the Taliban of his own free choice at a time when the Taliban was America’s ally. When America changed the rules and made them the enemy, did they bother to tell David Hicks?’ (Ryan, 2003: 8).

24. More to the point, it is one thing to assume that Hicks and Habib have been in dereliction of their duties to the state; they owed, at least officially as Australian citizens, none to the United States. This gives further credence to the redundancy of Australian (non-American) citizenship: the sin was against the Empire and the dominion duly forfeited its subjects for their treachery. The Australian who fights against the Coalition in overseas theatres is firstly and foremost, an enemy of the United States. He cannot be an enemy of Australia (he is not allowed to be); his criminality is conferred through the injury he has caused to the United States. As a journalist framed a question to Senator Hill on 21 July, ‘The Government says it’s unlikely that he could be prosecuted successfully in Australia under the laws that applied at the time. And thus you’re allowing the US to charge and try him for breaching their laws’ (2003a). The political commentary in Australia is that of distancing the realm of rights from Hicks; he is a being without rights, an alien.

25. As he is a non-Australian, a non-citizen (or merely a citizen of a terrorist realm), we find that the federal government releases evidence publicly, ‘incriminating’ him. In the words of Downer, ‘He’s done weapons training; he’s done surveillance training with al-Qaida, and obviously that's a matter of deep concern’ (qtd in APP, 2003). Some theorists of citizenship – we can consider Machiavelli (1999) as one example – advocated stern penalties against the deviant citizen. An entire body of literature from the ancients weighs heavily on ‘virtue’ (Oliver and Heater, 1994: 13). Some public sentiment has been expressed along these lines. We find the postings on the ABC Online forum of particular interest: they have marked citizenship as absent in Hicks and Habib, for these detainees are already, even without trial, terrorists. So suggests one posting: ‘Who gives a stuff whether the Hicks terrorist gets a fair trial or not. Certainly most Australians don’t’ (Fustian, 2003). They are not really Australians; they are terrorists, and terrorists reject the legal dominion. The words of a Cronulla resident suggested such a rejection: ‘What about a "fair go" for those he killed and wounded and the families he destroyed forever? David Hicks gave up his rights to be an Australian citizen when he joined the Taliban’ (Wigger, 2003). Rights, it follows, also vanish into a vacuum; in this case, the legal vacuum of the ‘illegal defender’. ‘It can be safely assumed that Hicks joined a terrorist organisation to commit terrorist acts (eg. for the simple minded terrorists kill people for a living, always outside the law)’ (Fustian, 2003). The standard of detention is likewise appropriate: ‘Mr Hicks is being held in safe and humane conditions, and is being treated appropriately by US authorities’ (Downer, 2003).

26. These arguments put forth against Hicks and Habib is framed on a misconception of their rights. But importantly, it is framed on the basis that citizenship prohibits bad conduct. The confusion seems to be that a violation of civic virtue (or vitus) is disengaging: it seems by implication far better to embrace an imperial model than a national model of citizenship. This is the effect of casting aside Hicks and Habib. The citizenship of Hicks and Habib would be validated if they were tried in Australia, but this is a simple act that seems to have escaped Daryl Williams’ legal interpretation of their rights. To have not done so seems to tilt the interest in favour of the American-imperial model. These cases signify alienation in the justice process: the role of punishment and judgment is deferred, as is the entire reading of citizenship, to the hegemonic power.

27. There has been some notable resistance in the public sphere in favour of Hicks and Habib. Paradoxically, in some parts of the Australian public sphere, the idea of citizenship has not been as narrow. Here, we find voices of support. Letters and calls sent to the Hicks family home have not been totally hostile; in fact, according to father Terry, only one call was offensive (qtd in Kremmer, 2003: 9). We find in fact traditionally reactionary individuals like radio broadcaster Alan Jones oddly in favour of Hicks as martyr, though it should be noted that his concerns are selective – he makes no mention of Habib: ‘Whatever else might be said about him [Hicks], he is an Australian … The trial would be by military officers under the control of, or subject to the orders of their superiors of the US army. He has had no access to lawyers: no-one can tell him why he is there, what the charges are, and this bloke is an Australian’ (qtd in Bray, 2003). The text of a petition organised by the Sydney Peace and Justice Coalition (2003) was similarly cognisant of the imperial motif: ‘David Hicks and Mamdouh Habib must be afforded due process and be returned immediately to Australia to be charged and tried under the eye of the Australian public. If they are not charged, they must be released. Unless this occurs, you [Howard] will be seen as aiding and abetting the US in their unlawful detention of these two Australians and putting Australia’s relationship with the US before the interests of its own people’.

Breaker Morant and imperial citizenship

28. Underlining the main resistance to excluding the Australian detainees from their recognised citizenship rights is the metaphor of another great conflict that defined Australian identity: the trial of Breaker Morant during the Empire’s conflict with the Boers. Harry Morant, a New South Wales drover, and his colleague Peter Handcock, were both lieutenants in a regiment raised to deal with Boer irregulars in the northern Transvaal during the campaign of 1901. They were convicted and executed by the British authorities for the murders of 12 Boer prisoners, a conviction that has been challenged ever since (Woolmore, 2002a; Bleszynski, 2002). There are striking parallels between the treatment of Morant and his men at the hands of British authorities and the non-American detainees. The men ‘endured solitary confinement for months’, were given notice of the charges and date of trial only ‘at the last minute and had scant opportunity to prepare a proper defence or to contact defence witnesses’ (Woolmore, 2002b: 15). Contact between the men and their families was also prevented ‘until the executions were a fait accompli’ (Woolmore, 2002b: 15).

29. In the case of both Hicks and Habib, there are also individuals who demand Australian representation, active intervention by Canberra to advance the interests of the Australian ‘citizen’. The wording of Senator Linda Kirk, who presented a petition to Senate in March 2003 of 1600 signatures calling for more equitable representation, in short, the fabled ‘fair go’ that lies at the centre of the Australian citizenship ideal is relevant: ‘Mr Hicks may or may not be a terrorist, but the birthright of all Australians is that their government will fight for their legal rights when they are imprisoned overseas’ (2003: 18). The South Australian Labor Senator could not resist the Australian cultural motif, the iconic symbol of betrayal that was the metaphor of Australian soldiering overseas. ‘Regardless of the causes Mr Hicks might have supported, holding him in a cage and making him face a Breaker Morant-style military tribunal is not the Australian way’ (Kirk, 2003: 18).

30. Breaker-Morant and the metaphor of abandonment to a foreign power also made an appearance in the Herald-Sun. Paul Gray recalled the words of David’s father: ‘This could end up being a similar situation to the Breaker Morant business. A military tribunal has one person who has the right to overrule the rest of the panel. In this case it’s George W. Bush. If he decides you’re guilty, you’re guilty, and they’ll take you out and shoot you or do whatever they like with you’ (qtd in Gray, 2003: 16).

31. Habib’s wife has similarly argued the theme of betrayal, that her husband was framed. Why else, she argues, would ASIO interrogators wait eighteen months before questioning the captives. ‘That proves that they’ve got nothing against him, but they’re still trying to frame him with something, or get something to prove that he’s got something, you know, against him’ (qtd in Nolan, 2003). But there is also a tragedy to this: Habib does not fit neatly into the model of imperial citizenship; he is after all, Muslim, and not coherently viewed within the ‘fantasy’ structure of White Australia (contingently tolerant, as Ghassan Hassan reminds us in White Nation (1998)). Given the hegemony of US power at the present time, even Allies seem to retreat from any dominant interpretation of what it means to be a citizen. The Allied citizen is pitted against the dominant rights of the US citizen; it is citizenship that ceases to be a universal precept of recognition, but a parochial affirmation of uniqueness. The idea of the citizen is mediated through the dogma of a ‘war on terror’ and since it is being prosecuted with vigour by the United States, the entire notion of citizenship is subordinated to a US hierarchy of rights. Attempts to question this hierarchy are immediately quashed: witness the refusal by the government to grant the Australian a Freedom of Information request into its discussions with the United States as to the state of Hicks’ detention and status (Hill, 2003a).

32. Thus, the subordinate state can only demand concessions, for its citizens can only play catch-up to the central demands of hegemonic authority. We find Alexander Downer, totally disinterested in having Hicks in Australia, content in allowing Hicks to remain in the United States. He sends a deputy, a figure of minimal significance: Justice Minister Senator Ellison. In the words of Gray, ‘Our relationship … is like an abusive marriage where one partner totally dominates the other, demanding and receiving acquiescent loyalty even during his fits of unjust rage’ (2003: 16). The implication is that the citizen is represented by the abused: ‘we’re the abused little woman chained to the sink’ (2003: 16). Hill can do no better, for his view of citizenship is formal and not substantive; it is merely abiding by the crude classification afforded to Hicks as a non-combatant who awaits charges. He merely complains that the interviewer on the ABC program is not being fair by suggesting a certain laxity on the part of Canberra towards Hicks and Habib. His plea remains that of a vassal to his lord. ‘In actual fact, the Australian government has put a lot of effort into assessing how the tribunal would operate and to ensure that the rules of natural justice would apply, that he or they, depending on what happens, would receive a fair trial, and they would be legally represented and that it would be an objective judgment on the facts’ (Hill, 2003b).


33. This essay has sought to find to find new, if somewhat reduced modalities of Australian citizenship as they exist in the ‘age of terrorism’. This particular construction is salient in situating the rights of Hicks and Habib. The case of the two detainees, to return to the original premise of the ‘brown paper’ bag, is the metaphor of a citizenship that is emptied of any significance beyond the discursive practice of ‘imperial’ citizenship. The mockery of Australian citizenship occurs when it is assumed to mean anything substantive - for it is the ‘empire’ that dictates its form in any significant way, contrary to any arguments by neo-Marxists that traditional imperial discourses have lost their relevance. Within the discourses of empire and terror, the rights of the non-American detainees are dictated within a hierarchy where the subordinate non-American state (in this case, Australia) seeks dispensations from the more powerful ‘ally’. We must either seek a definition of citizenship within the world of increased population movements – the notion of globalising citizenship, or accept the diminished status of an imperial citizenship. What is needed, as Wayne Hudson and John Kane point out, is a reconstruction of Australian citizenship ‘not just at the level of symbols and ideas, but also of practices if civil society is to be revitalised and the prevailing cynicism about politicians, parties and parliaments overcome’ (2000: 3).

34. The Hicks and Habib cases provide such a scenario of reconstruction albeit negatively, revealing the limitations of Australian (read non-American) citizenship. The only option in realising the true legal significance of non-American citizens within the alliance system is to permit them a trial in the countries of their origin. This countenances a return to the type of ‘empire’ citizenship discussed by Ernest Scott. Given the close identification between the respective political administrations of both the United States and Australia, however, the subordination of citizenship rights to a hierarchy of imperial values is set to continue. The paradox of globalization and global terror is a retreat on the part of States to intolerance in favour of ‘security’ interests and a diminished legal status for the non-American citizen.


Binoy Kampmark is Hampton Scholar at St. John’s College in the University of Queensland, where he tutors in law and international relations. He has published widely in Australian and international journals on contemporary politics and history, with his most recent article in the New Zealand International Review (November/December 2003) critiquing Australia’s intervention in the Solomon Islands. He also wishes to return his brown paper bag without compliments to the Federal Government. Email:


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