This week, the American military justice system decided that its conviction of an Australian national, David Hicks, on charges of aiding and abetting al-Qaeda in Afghanistan 14 years ago, were unsustainable in law. That did not convert Hicks into any sort of hero, or, for want of a clear breach of American or international law, a man we must admire, but it does rather tend to dispose of the idea that he was proven to be one of the real bad men of Guantanamo Bay.

That had seemed fairly obvious from the beginning, even to most Australians, apart from Howard government ministers, Foreign Affairs diplomats, and our intelligence officials. Hicks may have been criminally silly and foolish – and in the circumstances in which he placed himself as a footsoldier of jihad, an enemy of our allies and ourselves.

Perhaps, though it was not obvious, novel forms of international terror required novel legal approaches to its detection and punishment. But the US extra-judicial approach of capturing, detaining, interrogating, torturing and revenging itself upon them was at all times a reproach upon any claim that our side – we – were the people who were the more civilised, more bound by the rule of law, some sort of beacon of freedom, calmness, justice, humanity, decency and rationality in an increasingly mad, murderous unjust and irrational world.

Tony Abbott, as a minister in the Howard government, in the aftermath of September 11, 2001, had it right when he described the war against terror as a battle about being better.

"The war on terrorism is not primarily a test of military technology or service delivery," he said then. "It's a test of character.

"In a culture conditioned to be in two minds about everything, Western leaders need to match their adversaries' conviction and clarity of purpose.
"Western citizens need to be more dedicated to enhancing civilised life than suicide bombers are to taking it. The task is not to win over intellectuals addicted to finding fault [to have a debate about Iraq that is all about us] but to demonstrate to the wider world that those noble aspirations about the poor huddled masses yearning to be free are really meant."

It was a task that the US seemed hardly up to. Even when, or if, its intentions were noble, its means were all too often lawless and counterproductive. They were the worse for being clothed in deceit, weasel words and political opportunism. As usual, Australia decided, immediately and without much thought, that its best interests lay in being a flea on the American buffalo. Alone among America's Caucasian allies, we decided that we would not allow the need for just treatment to Australian nationals caught up in the American crusade to be any sort of problem in the relationship.

By the time the Hicks case was over, successions of Australian ministers and officials had pronounced themselves entirely satisfied with his treatment, unable to verify any "allegations" of systemic torture or maltreatment, or, otherwise, trying to rationalise it as reasonable or normal in the circumstances (something even the US no longer claims) or were arguing confidently that they knew, confidentially, that David Hicks, (an idiotic minnow if ever there was one) was a very big fish indeed.

Over the course of his incarceration, the US authorities responded successively to Australian public opinion rather more than diplomatic representation by ruling out the death penalty, trying to get the "case" against Hicks to some conclusion, and by offering a deal by which, in exchange for a guilty plea and short sentence, Hicks was promised freedom. By then, many Australians with no brief for terror or Hicks were expressing concern about official Australian indifference to Hick's fate, and, belatedly, even a few Howard ministers were unconvincingly proclaiming the concessions to be a result of their ceaseless behind-the-scenes labours. That is when they were not trying, equally unconvincingly, to argue that waterboarding and other forms of "enhanced interrogation" fell well short of torture and were entirely acceptable in the circumstances. Of course anyone who thought otherwise was accused of moral equivalency.

Tony Abbott has not found himself being accused of moral equivalency as he has laboured hard to persuade the Indonesian president not to shoot two Australians involved at organisational level in a substantial heroin transfer.

He has admitted that the two men were bad, that the drug traffic is a terrible thing, incidentally hurting and killing Indonesians. He does not seem to have condemned capital punishment as such – not surprisingly, for although Australia officially disapproves of the death penalty, our greatest friend, the United States, and our biggest trading partner, China, are addicted to it.

But he has spoken movingly of rehabilitation, and of the effect of long incarceration in making the condemned men better people. He has asked for reprieve as a personal favour, as an act of grace for Australia and Indonesian-Australian friendship.

He has begged, cajoled, and, perhaps fatally (for the men) ultimately threatened and bullied. The threat was a sign of Australian displeasure, and explicit and intentional linkage of Australian aid. As so often, Abbott never knows when not to go too far.

Abbott even implicitly lent himself to criticism of the Indonesian justice system, and the idea that the verdict and penalty in the case is somehow bodgy, because some players are corrupt. I don't want the men to be shot, but I did not understand the case to involve any doubts of their guilt, or of the fact that the usual penalty in Indonesia, in such cases, is death. If judges, police or prosecutors were corruptly bargaining with the defence, it was to do otherwise than their duty under Indonesian law. Australians may think the death penalty barbaric – as it is – but their quarrel on this account is not with the Indonesian justice system, or its officials, but the Indonesian legislature. And, frankly, if I were in the business of trying to stop capital punishment, I would not start in Indonesia, but among supposedly more civilised nations and allies, who execute many more less obviously guilty people after much more dodgy processes.

Abbott's pressure on the Indonesian president has undermined more diplomatic effects by his deputy, Julie Bishop, and others for an act of mercy. Indeed, it may have made execution much more likely.

Any retreat by the president now will have the appearance of bowing to pressure and threats, or, perhaps, succumbing to blandishments and bribes. The last thing that a newish president already finding it difficult to master his nation's political groupings needs is the appearance of looking weak, indecisive, and susceptible to foreign domination.

Without much in the way of warning, and for reasons which probably owe a good deal more to his own political problems, Abbott has gone big on trying to save the condemned men. The more he has invested in the subject , the more he (but, sadly, also the condemned men) may have to lose.

For Indonesia it is primarily a domestic political issue. Execution of major drug dealers is popular in the electorate, not least in communities ravaged by a drug trade which uses Indonesia as a transit point but also a destination. Reprieve has no constituencies – there is no popular movement opposing the death penalty.

The Indonesian political class – that group of people who have the time, the education and the wealth to be able to sitr around pondering abstract notions such as the justice of the death penalty – is at best about 1 per cent of the population. Most people are far too preoccupied with the struggle to keep their heads above water to have the luxury of such debates. This does not mean Indonesians are dumb, unconcerned with the problems of life (including the scourge of drugs) or resistant to political currents. But it does make their politics more practical and emotional, much more focused on impacts on ordinary people than on the nation's place in the world.

From the president's point of view, the issue is also nicely apolitical, able to make him seem a leader without increasing his rich store of domestic political opponents and enemies.

Those opponents and enemies are always alert for any opportunity to diminish the president's authority and standing. Nothing could serve more nicely than having the him being perceived as bowing to foreign pressure, to do favours for a friend, or to undermine an unequivocal popular populist message about drugs with the intimation that penalties were open for discount to special customers.

Nor do those enemies have to trade in any particular antipathy to Australians, or to westerners, or kaffir, even if in Indonesia, as in Australia, all manner of social evils can be blamed on the malign and corrupting ways of foreigners.

Abbott should know this. But he has, as usual, been playing to an Australian audience (being seen to try to do something) rather than an Indonesian one.

Bishop, and for a while Abbott, was on much safer ground in pushing the principle that all countries are particularly interested in the treatment of their nationals abroad, and ask for them kind treatment even as they admit them to be subject to the laws of the jurisdictions in which they live. Indonesia has a strong record of asking for (and getting) mercy for its nationals working in the Middle East, in Malaysia, Thailand, and the Philippines, but it has rarely had similar success or kind treatment from Australia when it comes to the fate of indigent fishermen, or young men working as crew on people-smuggling boats. Our treatment of domestically incarcerated Indonesians, including juveniles, seems to be governed by Australian populist politics, not good neighbourliness. Funny how these things come back to bite.

But Indonesia is far from alone in asking for special or kind treatment for its own. No one does so more loudly or aggressively than the US. On occasion, indeed, the US has gone to war over alleged ill-treatment of its citizens. It has been in the business of consular relations long enough to have been engaged in any number of embarrassing occasions (for example, the Trent affair in 1861 during the American Civil War) to accept with good grace the idea that other countries will pursue their consular interests without much regard for broader considerations.

There's no evidence that the manifest distaste of Europe, Canada, and Britain for the quality and quantity of "justice" on offer for Guantanamo inmates caused any ructions or damage to the security alliance. Australia was the only country which put what it imagines to the best interests of the relationship, and its personal view of the guilt and wickedness of Australian nationals, ahead of any demand for fair and just treatment of a national. We demand it from our enemies; how much more from a friend.

When Guantanamo was set up, and there were discussions of criminal trials of detainees, the then AFP Commissioner, Mick Keelty, remarked sagely that the US would probably have to decide whether they wanted to download the detainees for whatever intelligence they possessed, or try them. He doubted they would be able to do both. He was not being cynical about the prospect of torture, but realistic about the likelihood that even legal forms of interrogation could compromise the admissibility of evidence. He was right.

It was Keelty's AFP which tipped off Indonesian Police to the plans of the Bali nine, in spite of a general principle that Australia does not provide prisoners, or evidence, to nations (including the US) in cases where the death penalty is a possibility. Some of the police information came from a concerned parent who had informed against his son in the hope that police would intervene to stop the conspiracy.

I am told that police intended that the arrests occur in Australia after the Bali nine cleared Indonesia, and believed they had "ironclad" Indonesian agreement to that strategy. The deal, it is said, became unstitched, in part because Indonesian officials panicked at the number of people involved, perhaps, in fear about what might be said if it were thought they had allowed such amateur smuggling to pass through their systems.

But the AFP can see little point in "outing" their opposite numbers for welshing on the deal. There are continuing relations and exchanges with the Indonesians, including, no doubt, about people smugglers and sabotage operations. Australia, not Indonesia, gets most out of such arrangements.

So there is no profit, even for a PM, in screaming breach of an understanding in an individual case. It's "on water" under the bridge, as it were.