David Hicks the Scapegoat

This whole David Hicks affair has me very sad. He is, after all, ‘just’ one person and so his suffering, while personally great, is only of larger significance in terms of what it represents. And what, of course, it represents is a very dangerous precedent where the Australian government will actually renege on its tacit promise to be its citizens’ advocate, should they ever get into the shit overseas. As is the case here, David Hicks has actually been abandoned. He is, not to get overly biblical, a sacrificial goat. His predicament recalls, for me at least, the short story by Ursula Le Guin titled ‘The ones who walk away from Omelas’, which asks – and tries to answer – a question posed by William James:

“Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far‑off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain?”
As I understand it, Hicks’ extradition to Australia is not being demanded since, should he be bought back, he could not actually be charged for anything since the crimes he supposedly committed – working as a volunteer for the Taliban/Al Queda – were not actually illegal in Australia at the time, and such laws could not be applied retroactively. This, I believe, is a good thing – that, in spite of the popular sentiment that what he did was wrong, indeed criminal, since what he did was not actually illegal, he is innocent. One could be forgiven for saying that I am asking for a reading of the letter of the law, not the spirit, but this is not completely accurate – since it is, I’d like to think, the very spirit of the law that it be structured and expressed so to resist the moral fashion of the time. Maybe it is more suitable to ask, “Why was working as a mercenary NOT considered a criminal act BEFORE September 11? What changed? Was popular, or at least legal, opinion that it was okay for an Australian citizen to contract themselves out to a foreign military, or militia, or rebel, or guerilla force, a gun for hire, just as long as their employers weren’t Islamic? Or, is what repels Australians, or at least the government, so much about Hicks is that he didn’t do it for the money – he wasn’t technically a mercenary, but rather an idealist? Does this terrify people so much – that someone can step outside of the realm of responsibility/irresponsibility of paid work, and instead do something completely of their own volition?”

The analogy that comes to mind of Hicks’ situation is this. Imagine that there is a soccer match between the teams of two nations. One of the players on the underdog’s team is actually a ‘defector’ of sorts – a citizen of the opposing team, but drawn morally to his new team. He receives no special benefits – in fact, training and so forth is even more difficult. During the game, he manages to carry the ball for a brief time, not scoring but performing quite impressively. The tactics he uses, the moves he makes, are so unorthodox though that, while they’re considered ‘un-sportsman like’ there aren’t actually any rules that strictly prohibit them. Never the less, he is issued a red card – he is expelled from the game and denied from playing the sport indefinitely. What has happened is that the opposing team has lobbied the Soccer Association to change the rule book – half way through the game. They are effectively changing the rules as they go along. Hicks’ situation is similar – there are no laws against what he has done, and in fact there are plenty of laws against what his persecutors are doing, i.e. denying him due process. 

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