Was the United States government ready to release David Hicks and return him to Australia more than two years before the controversial plea-bargaining deal that got him out of Guantanamo Bay?
In March 2007, five years and four months after he was picked up trying to flee his Taliban and al-Qaeda affiliates in Afghanistan, Hicks pleaded guilty in a US military tribunal to a charge of providing material support for terrorism, then was sent back to an Adelaide jail to serve out the non-suspended nine months of his seven-year sentence.
It was a convenient solution for the Howard government.
The remaining Australian was removed from Gitmo and given a trial, partly alleviating the public criticism about an Australian being held indefinitely in a prison becoming notorious for torture and duress. At the same time, Hicks was put away until after the November 2007 election. Yet according to heavily redacted documents from the Department of Foreign Affairs and Trade under a Freedom of Information Act request, a foreign or international agency wrote to the then attorney-general Philip Ruddock on January 13, 2005, ''seeking repatriation for Mr Hicks''.
This was two days after the United States decided to release the only other Australian prisoner, Mamdouh Habib, after deciding there was no evidence against him worthy of a charge, as well as several British citizens whose release had been demanded by their own government on the grounds their detention was itself illegal.
Who made the suggestion Hicks be sent home is redacted from a timeline from the department.The redaction is done under Section 33(b) of the FOI Act, which relates to information sent in confidence by a foreign government or its agencies, or by an international organisation. Conceivably, the proposal could have come from the International Committee of the Red Cross, which by then was visiting the prison camp. But would the committee have made this intervention if it were not gravely concerned about Hicks's physical or mental state, contradicting the public assurances from Canberra that Hicks was in ''good health'' and ''good spirits''?
If it was a foreign government, who else but the United States?
Ruddock says he can't remember the latter and says the understanding at the time within the Howard government was that US investigators had much more serious evidence against Hicks than they did about Habib. ''I have nothing to hide,'' Ruddock assures me. DFAT can't immediately clarify.
The FOI request was lodged in November 2010 just after Hicks published his memoir Guantanamo, My Journey. The book immediately sparked controversy about whether Hicks had given a full and honest account of his involvement with Islamist groups in Pakistan and Afghanistan and whether his reports of abuse in captivity were true or exaggerated.
On the first aspect, my view was Hicks had been starry-eyed about the company he had kept before September 11, 2001. The Lashkar-e-Taiba group in Pakistan is one of the nastiest terrorist groups around (it was responsible for the 2008 Mumbai attack) and its involvement in Kashmir has only deepened an already unhappy situation for the people there.
On the second, it seemed obtaining the reports of consular visits to Hicks by officials from the Australian embassy in Washington would provide useful material to assess the claims of maltreatment and whether Canberra's assurances to Australians were truthful. The FOI request asked for copies of these reports by Australian officials.
After several months of extensions of time and missed deadlines by DFAT, I requested the Australian Information Commissioner, Professor John McMillan, take over the application. McMillan's office was set up under the new, more open FOI regime established by the Rudd government. This was a request involving a department now headed by Kevin Rudd.
On August 29 this year, nearly 20 months after my FOI request, McMillan's office passed on 24 of the 25 documents identified by DFAT as relevant to my request. The department decided to exempt one in full, and the others were heavily redacted, largely on Section 33(a) grounds that information might damage Australia's international relations or under Section 33(b) - that release would disclose information passed in confidence by foreign governments and international agencies.
What is left for disclosure are statements attributed to Hicks that he is ''fit and well'', that his treatment was ''fair and professional'', and so on. The visiting consular officials, whose names were also redacted, usually observed that he ''appeared to be in good spirits''. Yet there are enough traces of more serious concerns about his mental state resulting from prolonged isolation, subjection to continuous light and noise and petty restrictions on food, exercise and bathing facilities.
The documents suggest that the Australian officials accepted explanations by Hicks's jailors without question. There are several clues to a pattern of deliberate humiliation.
That so much of the consular reports are redacted under Section 33(a) - because of information that might damage the ''international relations of the Commonwealth'' - suggests that the successive officials from the Washington embassy (Derek Tucker and John McAnulty, according to the Leigh Sales book, Detainee 002) made many critical observations about the wider conditions at Guantanamo Bay.
Tucker visited Hicks for the last time on January 17, 2005. His report said Hicks had heard about the release of Habib and the British prisoners ''and appeared crestfallen when he realised that we were not there to tell him that he too was being repatriated''.
Sales wrote in 2007 that Canberra was infuriated by Habib's release and that the Australian embassy in Washington had ''considered advising the government to ask for Hicks's release at the same time as Habib''.
However Hicks had been charged by the Americans and the government had invested a lot in its portrayal of Hicks as a dangerous terrorist.
Hicks now has plausible grounds to sue the government after a US appeals court ruled in another case that the law under which he was convicted was invalid. If the US did offer to release Hicks in January 2005, his case would look even stronger.