Nothing about the USA’s treatment of David Hicks – rendition, locking up, charging with a non-crime, plea bargaining to meet an Australian election deadline, or silencing from comment – showed American ‘justice’ in a favorable light. Hicks spent six years behind bars because of the attitude of the US and Australian governments, not because he broke a legal law, lawyer Robert Briggs says in this article.
A lawyer’s lament
Calling David Hicks a convicted terrorist supporter has as much resonance as calling him a divorced bankrupt.
David Hicks is not a bankrupt, although he’s been broke. He is not divorced, though he parted from the mother of his children. And he has not been convicted of doing anything, any where, that was against the law at the time he did it.
That includes his foolish and reprehensible acts in Afghanistan and Pakistan. Those actions would be illegal now. They were not illegal when he took them.
Nor is “material support for terrorism” a valid war crime. It never has been.
In any event, the “offence” to which David Hicks pleaded guilty in order to escape the infamous Guantánamo prison camp was created five years after the “crime” was said to have been committed. But the US Congress, unlike the Australian Parliament, cannot legislate retrospectively: it’s in the US Constitution.
In her book about David Hicks, Detainee 002, author Leigh Sales strongly implies that Hicks’ military lawyer, Major Mori, was remiss in not striking a plea bargain for his client during the first round of military commissions, the ones that George Bush tried to set up, without legislation, in 2002.
Yes, and what would have happened if, in 2004, David Hicks had pleaded guilty, been convicted and then been repatriated to serve his “sentence” in an Australian prison? The commission system that would have produced that sentence was declared unconstitutional by the US Supreme Court, in the Hamdan decision of 2006.
What would the Howard government have done in that case? Hicks’ sentence would have surely been set aside and, probably, substantial compensation paid.
Any lawyer from Foreign Affairs or the Attorney-General’s Department could have told the government that the Bush commissions were likely to be found invalid.
The 2007 plea bargain and conviction are no different. Hicks’ US conviction is on its face a nullity and so his Australian confinement has been completely anomalous. It’s the first time, as far as I am aware, that someone has been confined to prison in Australia without a valid underlying criminal offence, from some jurisdiction, somewhere.
So let’s get this straight. In the eyes of the law, David Hicks can no more be a “convicted terrorist supporter” than a bankrupt or a divorcee. You can dislike and disapprove of his actions in the strongest terms. You cannot, however, anathematise him as a convicted criminal who has done duly-imposed time for a real crime, pursuant to a real sentence.
In that sense, he really is innocent.
– by Robert Briggs, a CLA lawyer member
Marie of Canberra wrote on 30 Jan 08:
There is something we can do to try to make up for all the horrors inflicted on David Hicks.
In imposing a control order on Hicks, Federal Magistrate Warren Donald said he was a risk to national security, yet Kevin Rudd has gone on record as saying the treatment of Hicks was ‘a national obscenity’. The buck stops with the PM so, how come he’s now silent on this issue?
Governments are elect ed to listen to the voice of the people, Listen now and quash this ignominous control order. The opportunity to do this will be next month (February) when the continuance of this order will be reviewed.
Hicks has suffered enough (and for what?) Contrary to the inhuman way he has been treated, he deserves compensation, and, if the Government won’t do it, I suggest that we Aussies, who know a rotten deal when we see it, start up an appeal for him.
Kevin of Canberra wrote on 2 Jan 08:
What the Rudd government decides to do with Hicks will be an important indicator of how it will deal with the rest of the legacy of laws and regulations imposed by the Howard government. The indications so far are not good. The restraining orders should be removed, as should the right for Hicks to tell his story and his right to be compensating for telling his story.