Confidential Defence documents reveal that Australia's policies on handling captives in Afghanistan and Iraq from 2001 to 2003 were so contrived they ran the risk of being neither ethical nor in line with international law. The risk was starkly outlined in a top secret memo from the then chief of the Defence Force, Admiral Chris Barrie, to the then defence minister, Robert Hill, in February 2002, which warned that the prisoner ''arrangement may not fully satisfy Australia's legal obligations and in any event will not be viewed as promising a respect for the rule of law''.
Canberra joined the US offensive in Afghanistan after the attacks of September 11, 2001, promising that captives would be given the full protection of the Geneva Conventions.
But behind the scenes the allies split over the status of al-Qaeda and Taliban fighters. Australia felt bound by the conventions, which meant captives would be treated as legitimate prisoners of war, while the US president, George Bush, labelled them ''unlawful combatants'' outside the Geneva protocols.
Canberra was torn between its treaty obligations and a desire not to obstruct the US.
The extent of the contortions this produced are exposed in documents which the Public Interest Advocacy Centre in Sydney obtained under freedom-of-information laws.
The documents, made available to the Herald and the ABC, relate to prisoners of war in Afghanistan and Iraq between 2001 and 2004.
They reveal that:
Australian officials wrongly assumed the US would take a similar view of the legal rights of captives;
Australia came up with a legal convenience, the ''Afghan model'', to paper over the gap;
the model was based on the contrivance that the US would always be the formal ''detaining'' power when prisoners were taken, even if only one US soldier was operating with much larger numbers of Australians at the time of the capture;
the model was the result of ''a serious divergence of legal and policy views between coalition partners'';
as a result, Defence wanted as little publicity on it as possible;
nearly a year after Australian forces were sent to Afghanistan, Defence was still working on Australia having its own detainee capability but this was not done until 2010.
Astonishingly, the papers reveal that the Afghan model, described as interim, was carried by default into the Iraq conflict in 2003. This was despite a new policy being struck in March 2003 between the US, Australia and Britain to give Australia more say in how prisoners were treated. The ''trilateral agreement'' was never put into practice.
The situation reached absurd heights on April 11, 2003, when 66 prisoners rounded up by Australian SAS troops were deemed to have been ''captured'' by the sole US Army officer present.
''Defence may find it difficult, although not impossible, to coherently explain that [Australia] was not the detaining power,'' warns a high-level brief at the time. This week Admiral Barrie said his concerns were about the practicalities, not legalities, of the arrangement and, by the time of Iraq, Australia should have had its own capability.
An international law expert at the University of NSW, Andrew Byrnes, labelled the Defence policy a ''charade''.
The PIAC is calling for a full public inquiry. Its chief executive, Edward Santow, said: ''The papers show a failure of leadership in both the ADF and the Department of Defence.''
Deborah Snow & Anne Davies @'SMH'
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