Hicks and justice

Irrespective of what one might think of David Hicks – a terrorist or a fool who found himself in the wrong place and at the wrong time, few could argue that the system under which Hicks was tried was seriously flawed.

However, David Hicks may finally have his day in court as on Wednesday the NSW Supreme Court froze profits from his published memoir, pending an application by the Commonwealth Director of Public Prosecutions. These profits have been categorised as being the proceeds of crime.

Hicks’ path to the US Military Commission was tortuous and commenced when he was handed over to the US authorities in Afghanistan in December 2001. By January 2002, he had been taken to Guantanamo Bay where he was detained by the US military, the accusation being that that Hicks was an enemy combatant.

After being held for almost three years Hicks was finally charged with conspiracy, attempted murder and aiding the enemy and was committed to face trial before a military commission which was convened by order of president George W. Bush. It was at the time highly suspected that this trial only came into being due to John Howard making a special request to his good friend Bush, and for purely political reasons.

As the US Supreme Court found that the military commission system itself was unlawful the system had to be re-established by an act of the US Congress. In March 2007 – more than five years after being incarcerated in Guantanamo – Hicks’ lawyers had struck a bargain and so he pleaded guilty to an offence of providing material support for terrorism. He was convicted and sentenced to seven years’ imprisonment of which the majority had already been served with the remaining 9 months spent at Yatala Prison. Hicks was released late December 2007, but was placed under a 12-month control order.

With lawyers including Peter Faris QC questioning the pursuit of Hicks the author on Australian shores, the very legitimacy of Hicks’s conviction by a US military commission will be tested by the case.

Under the law, a person cannot profit from their literary proceeds arising from a foreign indictable offence, however legislation introduced by the Howard government to explicitly cover the US military commission system has since been repealed. There is also the point that profits made by ”Chopper” Read from his books and movie have been left alone.

The Hicks case, according to Peter Faris, is unusual and complicated – firstly, due to Hicks’s plea being taken in a military commission, secondly as he was not convicted by an overseas court of any crime.

Faris: ”He’s had a finding against him by a military tribunal that isn’t a court, and I doubt that finding is a conviction as we understand it.”

Terry Hicks: ”Basically, the bottom line is yes, now he’s going to have his chance.” ”Everyone says he’s guilty, and he’s done this and done that, and it’s never been tried in court.”

Terry Hicks sees the court action as a further example of political pressure on his son. ”I just have that feeling that the agenda is probably a little more political than we realise,” he says. ”Possibly the DPP have been put under a lot of pressure to proceed with this business.”

15 comments on “Hicks and justice

  1. I hope he gets his say in court and possibly the full facts will emerge. So much of the case happened between the Bush and Howard governments where Hicks and the public were not privy.
    I also hope some of the story that Jason Leopold, from Truthout, has unearthed is published in the Australian press, to bring some “balance” to the reporting.

  2. Sue, I think that it will be mostly about the validity of the original conviction because if an Australian court does not recognise the conviction, then there was No Crime and therefore any revenue obtained from the sale of Hicks’ book cannot be considered proceeds of crime.

    If (and I’m very hopeful) the court refuses to recognise the validity of Hicks’ conviction – evidence obtained under duress etc – then the entire conviction will be overturned, at least as far as Australia is concerned.

  3. Howard took Australia to war by joining the US in an invasion of another country. To be sure, not a particularly popular regime by our value system (there are plenty of these in the world).
    The Rodent did so without consulting anyone in the Australian Parliament. This puts him in the same category as any other extreme right wing dictator.
    Hicks, by comparison, was a vertically challenged dope who first tried to join the Australian Army. If he had been a bit taller he would have found lots of adventure traveling to foreign countries, meeting new people, killing them and receiving praise from the Rodent.
    “Such is life” (Ned Kelly November 1880)

  4. Min yes that is true. I suppose this story of the Howard government and its reelection campaigns just keeps cropping up. It helped Howard to have a
    “terrorist” locked up, then as the public became aware it helped Howard to have a “trial”. Then woven through out we have Rupert Murdoch and his world wide press promoting the War on Terror.
    How on earth could anyone have their side of the story told when the press has you labelled. The press continued to publish that photo of Hicks with the rocket launcher, when actually that photo was taken when Hicks was fighting in Kosovo. Now at that time Hicks would have been, to the press. a “hero” as he was fighting the Serbs. So the press with the approval of Howard was manipulating the public story.

  5. Lunalava, just a small correction – Hicks was rejected by the Army because he didn’t have the minimum education requirement, this being Year 10. Since females being accepted into the armed services there are now no longer any height requirements however there is still a minimum weight requirement.

  6. And of course Hicks’ actions only became ‘illegal’ following 9/11 when Bush declared Bin Laden an enemy.

    Bush needed a token white man, Howard needed a focal point for his War on Terror/Coalition of the Willing and Hicks fitted the bill perfectly.

  7. Hicks was dealt with by a political not a judicial judgement.

    Mr. Hicks deserves and is entitled to challenge his treatment in court in this country.

    The public is entitled to all the information that relates to how Mr. Hicks was dealt with.

    This is what living in an democracy implies.

    The public has the right to demand that all government actions are held to account, even those of the Howard government.

    Mr. Hicks was denied the right to appeal the decisions made.

    In a democracy, I believe that people have the right to clear their names.

  8. Wan’t the very court that tried him deemed to be illegal?
    (as was his detention)
    Did’t the Aust law have to be changed to include military tribunals as well as courts? (specifically to shut him up)
    This is still more cruel, inhuman, unjust unfair and unwarranted punishment.
    His only crime was stupidity; most Australians are guilty of that.

  9. Michaelangelica, yes the tribunal was deemed to be illegal but was subsequently reinstated by an act of Congress. And so it was under this military commission that Hicks made his plea bargain.

    As far as Australian law, it’s yet to get that far. Under a transfer agreement and in exchange for Hicks’ plea bargain Hicks was sent to Yatala. Since then there has been no challenge against Hicks’ original conviction.

    Which is where we are up to now – because the Federal Court deemed the sale of Hicks’ book to be ‘proceeds of crime’ there is an appeal lodged with the Supreme Court which must via necessity have to consider the legality of the original conviction.

    And stupidity is probably all that Hicks is guilty of and he certainly paid for that ‘crime’ during his incarceration at Gitmo.

  10. lunalava @9.01am 5 August, the Rodent not only didn’t discuss this with Parliament, he lied to the Parliament and to the Australian people about sending our troops to illegally invade another country, the popularity of its leader notwithstanding.

    And let’s not forget the original reason was the imaginary WMDs, the non-existence of which the Bushevics, Blair government and the Rodent regime knew at the time!

    As Min says, Hicks was guilty of being stupid and gullible; however I don’t think that’s a jailable offence, or prisons in this country and the US would be overflowing with Beck’s and Anal’s listeners, Dolt’s readers and their US equivalents.

    And we shouldn’t forget that the legislation which made it possible to try Hicks had to be amended to make it retrospective. All-in-all, a cynical exercise to get Dubya’s “sheriff” re-elected at the expense, as always, of someone who didn’t have the resources to fight the system.

  11. Context of ‘January 2007: Pentagon Pressures Guantanamo Prosecutor to Charge Suspect as a Political Favor’


    October 25, 2002: General Sends Memo to Joint Chiefs’ Chairman Saying New Interrogation Methods Are Needed

    Gen. James T. Hill, commander of the Southern Command, sends a memo to Chairman of the Joint Chiefs of Staff Richard Myers providing him information on the new interrogation techniques that have been requested for use at Guantanamo (see October 11, 2002). He says that new methods are needed because, “despite our best efforts, some detainees have tenaciously resisted our current interrogation methods.” He says he thinks Categories I and II techniques are “legal and humane.” He only questions the legality of category three techniques, recommending additional legal advice from lawyers at the Pentagon and the Justice Department. Hill writes: “I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal….” [US Department of Defense, 10/25/2002 ] Hill later says, “We weren’t sure in the beginning what we had; we’re not sure today what we have. There are still people who do not talk to us. We could have the keys to the kingdom and not know it.” [New York Times, 6/21/2004]

    January 2007: Pentagon Pressures Guantanamo Prosecutor to Charge Suspect as a Political Favor
    Pentagon General Counsel William J. Haynes, whose involvement with a set of documents known as the “torture memos” threatens his nomination as an appellate court judge (see November 27, 2002), telephones Morris Davis, the lead prosecutor at Guantanamo, to pressure Davis to charge accused Australian terror suspect David Hicks. Haynes is apparently attempting to do a political favor for Australian Prime Minister John Howard. Haynes is advised that his interference is improper, but calls Davis a second time and suggests that Davis charge other prisoners along with Hicks to avoid any impression that the charges are “a political solution to the Hicks case.” Davis will resign in part because of pressure from Washington to politicize his prosecutions (see October 4, 2007). [Jurist, 11/2/2007]

  12. Pip, and Haynes is apparently attempting to do a political favor for Australian Prime Minister John Howard. Haynes is advised that his interference is improper..

    Jane, and let’s not forget the AWB…

  13. Military tribunal for Hicks illegal


    The US Supreme Court has ruled that the military commissions set up by the Bush Administration to try prisoners, including David Hicks, at Guantanamo Bay are illegal and must be abandoned.

    In a major blow to the Administration the five-to-three decision of the court said the Geneva Conventions covering prisoners of war had to be applied to proceedings against all prisoners at Guantanamo.

    With Chief Justice John Roberts excusing himself from hearing the case because he had ruled in favour of the Administration’s position when he was in the Federal Court, the court ruled that the Bush Administration’s position that prisoners held at Guantanamo and elsewhere are illegal combatants and not covered by the Geneva
    Conventions is unconstitutional.

  14. Exactly Pip. This will be tested at law via the Supreme Court who will firstly have to decide whether Hicks committed any crime whatsoever under Australian law. It’s a bit of a dog’s breakfast but I think that David Hicks will finally have his day in court.

  15. Min, Hicks never did commit any crime under Australian law. The Afghanistan and Iraq invasions weren’t sanctioned and so Hicks broke no Australian law. The Rodent would have liked to change that, but he didn’t have control of the Senate. It’s all an absolute nonsense and another example of scapegoating someone who is ill-equipped to defend himself against the system.

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