Given the hundreds of prisoners who have been released from the military facility at Guantanamo over the more than nine years of the prison’s existence, it shouldn’t be surprising that some number of these former detainees have written memoirs. Ranging from mass-market, English-language books available on Amazon.com to Pashto- and Urdu-language texts published by local presses, these firsthand accounts have given readers a personal glimpse into what goes on behind the notorious prison’s bars.
Books like Moazzam Begg’s Enemy Combatant, Murat Kurnaz’s Five Years of My Life (Fünf Jahre meines Lebens), Abdul Salam Zaeef’s Guantanamo’s Picture (Da Guantanamo Anzoor), and Abdul Rahim Muslim Dost’s The Broken Shackles of Guantanamo (Da Guantanamo Mati Zawlanay) detail interrogation methods, detention conditions, and other practices at the once-secretive facility, which remains closed even now to independent outside scrutiny. Some of the books, according to the BBC, have been best-sellers in the former prisoners’ home countries.
At this point, the Guantanamo memoir might even be described as a distinct literary subgenre, with a common array of set-pieces, characters, and tableaux: the abusive guards, the barking dogs, the beatings, the hunger strikes, the interrogations—“Where is Osama?”—the iguanas, the boredom, the heat.
David Hicks, an Australian who was detained at Guantanamo for five-and-a-half years, is the author of the latest addition to the Guantanamo canon. His book, Guantanamo: My Journey, was published last October to generally favorable reviews. Some critics said the book elides the disagreeable aspects of Hicks’ biography, relying on half-truths and selective omissions, but others found it to be a powerful and moving story.
Though the book’s arrival was touted as a “long awaited” publishing event, it was not an enormous best-seller, selling some 30,000 copies to date. What has put it in the public eye in recent weeks has not been the contents of the book itself, but rather the Australian government’s aggressive efforts to confiscate the book’s earnings.
Based on the country’s Proceeds of Crime Act, the Australian prosecutor’s office has pursued an asset-freezing case against Hicks, obtaining a judicially authorized restraining order covering the book’s modest profits in early August. By the time this column is posted, prosecutors are expected to have asked the court to allow them to seize all the funds that Hicks has earned from the book’s sale.
The Proceeds of Crime
Australia’s Proceeds of Crime Act, passed in 2002, is meant to deprive criminals of the benefits of their criminal conduct. Besides its obvious targets—stolen goods and other criminally obtained assets—the law extends to funds obtained by telling or publishing a criminal’s story. In that sense, it is quite similar to United States’ “Son of Sam” laws, which authorize the government to seize any money that criminals may have earned from the sale of their stories of crime.
These laws, in the United States, have a fraught relationship with the First Amendment. Indeed, in an important 1991 ruling, the U.S. Supreme Court struck down New York’s “Son of Sam” law, finding that the law was overinclusive in its sweep. The Court emphasized the extent to which the law could hinder the publication of valuable works, and noted that even works like The Autobiography of Malcolm X and The Confessions of Saint Augustine could be covered.
The free-expression considerations that arise with any use of such laws are even more pressing in the present case. Hicks’s story, whether or not it has a basis in his own criminal conduct, is very much a story of crime: one of state-sanctioned criminality at Guantanamo. Particularly given the Australian’s government’s own failure to push back against Guantanamo’s abuses, it is extremely troubling that the government would seek, in effect, to punish Hicks’s revelation of information about the prison.
It is far from obvious, moreover, that Hicks should be considered a criminal under the Australian law. After his capture in Afghanistan, Hicks was held in U.S. custody for several years without trial. Following the enactment of amended military-commissions legislation in 2006, Hicks was accused of providing material support for terrorism, a charge with a possible life sentence. In exchange for the guilty plea that he entered in 2007, Hicks received a short sentence, only nine months of which he actually had to serve.
The Australian prosecutor is relying on Hicks’s guilty plea, plus a statement of facts that Hicks signed in connection with the plea, to prove Hicks’s criminal activity. But a guilty plea entered in flawed proceedings under conditions of extreme duress should hardly be considered dispositive.
Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, put it simply: “A conviction in an unfair and illegitimate system should not be considered proof of a crime.”
The Proceeds of Crime Redux
A final irony in this case deserves attention.
It is not only Guantanamo’s captives who have recounted their experiences in print. There are memoirs by soldiers who served there, by chaplains who ministered to detainees, by lawyers who represented clients there, and, inevitably, by the political leaders who created the prison.
Former president George W. Bush and former defense secretary Donald Rumsfeld have made far more money from the sale of their self-serving and tendentious memoirs—books that brag openly of crimes like water-boarding, a form of torture—than David Hicks will ever make from his. A prosecutor with a better sense of priorities would investigate their crimes long before going after Hicks.