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legislation introduced by the Howard government to explicitly cover the US military commission system has since been repealed.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.”