A senior US Government law officer has admitted before the US Senate that the offence on which Australian David Hicks was convicted does not exist, and that his conviction is likely to be thrown out. Hicks may be in for a big compensation payout from both the US and Australian Governments.
Hicks in line for massive compensation?
By Bill Rowlings*
Can David Hicks sue the US Government – and also the Australian Government – for his arrest and kidnapping, followed by detention and “conviction” at Guantanamo Bay?
Will he benefit from a $5m-plus compensation payout, at $1m a year for his five years of wrongful detention, including time in an Adelaide prison, and have his enforced silence ended?
The US Administration has admitted before a US Senate Committee that the only offence to which David Hicks pleaded guilty – providing material support for terrorism – is almost certainly not an offence under the US military law system. They say that there is a “significant risk” appeal courts will rule against the Administration on the point of law.
Even the legitimacy of the ‘system’ is questionable, the US Senate was told, with reference to the Military Commission process.
Background:
Hicks was an Australian adventurer and soldier of fortune and faith from Adelaide who ended up among the Taliban in Afghanistan, basically because he believed in fighting on the side of the Muslim religion. He was handed over to the Americans for $1000 by Northern Alliance forces, and ‘rendered'(kidnapped) to Guantanamo Bay, Cuba. Hicks has said that he was tortured. He became the first person to plead guilty under the US Military Commission system: he was desperate to get out of Guantanamo, and the Australian Government was desperate to get him off the front pages of Australian newspapers and TV screens, because the inequity of Hicks’ treatment had been recognised, gradually, by the Australian people.
A ‘Military Commission’ sentenced Hicks to seven years in prison in February 2007. The ‘conviction’ led to his spending nine months in an Adelaide prison, under an agreement between the US and Australian Governments, after more than five years of detention before ‘trial’ in Guantanamo. As well, to this day he is forcibly silent, and banned from profiting by writing or speaking about his experiences, as part of the sentence.
It appears from the recent US Senate testimony that Hicks’ treatment by the US Administration – and therefore by the Australian Government also – was ‘beyond the law’. That is, the ‘crime’ he was charged with never existed, because it could not exist under US military law. It is not a ‘traditional violation of the law of war’.
As the US Assistant Attorney General, David Kris, said in evidence on 7 July 09 to the Senate Committee on Armed Services:
“…our experts believe that material support for terrorism is not a traditional law of war offence, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”
If the system was illegitimate, and the offence did not exist, Hicks’ conviction must be annulled. He must be compensated for the detention and penalties imposed on him for actions which were not offences under any law of the USA or Australia.
Note: Virtually all Australian civil liberties, human rights and lawyer groups consistently argued the illegality of Hicks’ circumstances from soon after his plight became known. It is not as if the reality of the illegality of the situation was not pointed out to the governments of both countries.
The legacy of Philip Ruddock as Attorney-General, and John Howard as Prime Minister, may be to force Australia pay suitably massive compensation because they got it wrong, in principle, morally, and legally. The US Administration may also be forced to pay compensation to Hicks because it acted beyond the law.
Importantly, Hicks would be free to say what he likes, when he likes, wherever he likes.
Here is the relevant part of US Assistant AG Kris’s statement:
“…the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the US Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”
For the testimony before the US Senate Armed Forces Committee, click here:
US analysis of the situation is available here.
The Obama Administration may be forced to take a formal position in court on the basic question analysed above: Ali Hamza Ahmad Suliman al Bahlul was convicted on several charges, including material support and conspiracy, when he failed to put up a defence. His conviction has been appealed to the Court of Military Commissions Review where the Obama administration will have to take a position one way or the other – click here.
US lawyers are starting to realise the ramifications of the Kris evidence: see article.
* Bill Rowlings is CEO of Civil Liberties Australia