The political stitch-up of David Hicks

UPDATE ... David Hicks, demonised by the Howard government, pleaded guilty to a charge unknown to the law of war ... US appeals court says there is no such war crime as "material support for terrorism" ... Where does that leave the over-blown attacks on Hicks by Howard, his ministers and hacks from the Murdoch press? 

THE DC Court of Appeals has, again, found that "material support for terrorism" is not a war crime.

This means that David Hicks' conviction for that offence, after nearly six years at Guantanamo Bay, is likely to be a nullity and quashed. 

His appeal before the Court of Military Commission Review had been stayed pending the outcome of the just delivered reasons in Al-Bahlul v United States. See here and here. 

Hicks went to Guantanamo in January 2002, after being captured in Afghanistan by the Northern Alliance and sold to the Americans. 

He became the Howard government's terrorism pin-up boy. The Murdoch press ramped-up the rhetoric and Hicks was vilified as a dangerous terrorist. 

Let's rewind and recall the politics being played by Howard, his attorney general Philip Ruddock and foreign minister Alexander Dowder, as they demonised Hicks and sought to justify his detention and "trial". 

Here's John Howard

June 29, 2004 on the Nine Network

"My understanding is that the American Supreme Court has ruled that the detention has been lawful and that it's lawful not only in relation to American citizens but also in relation to foreigners." 

July 30, 2004 on Melbourne Radio 3AW

"I am confident that the arrangements for the military commission do respect the basic principles of our criminal justice." 

May 11, 2006 on the ABC's The World Today 

"If Hicks comes back to Australia without having gone through any kind of military commission trial in the United States he can't be charged here and I've said before that I don't regard that as a satisfactory outcome, given the severity of the allegations that have been made against him."

July 1, 2006 reported in The Sydney Morning Herald on the US Supreme Court's finding that the first Military Commission Act was unconstitutional 

"There clearly has to be another method of trial, a court martial or a civilian trial which conforms with the Supreme Court decision. I don't greet with any great enthusiasm the idea that a person who's admitted doing what he admits to having done can come back to this country and not be tried."

October 25, 2010 on ABC Q&A, as the former PM 

"In relation to the military commissions, we put a lot of pressure on the Americans to accelerate the charges being brought against David Hicks, and I remind the people watching this program that David Hicks did plead guilty to a series of offences. 

David Hicks trained with Taliban, David Hicks was associated with groups that were behaving in a manner that was completely opposed to the interests of this country, and the idea that we should see him as a hero is very misplaced."

Here's Philip Ruddock

February 21, 2004 reported by the Herald-Sun

"Frankly, I wouldn't want to be the minister who had brought people home when I was told that there was such evidence ... [Hicks had been involved in terrorist related activities] at a very senior level." 

March 14, 2004 reported in the Sunday Mail on re-introducing a criminal offence of consorting with terrorist organisations 

"We are in a war. This is not a traditional war. It's a war in which people pose a threat to the life and liberty and safety of the Australian community ... If you were mixing with a group of people who were known criminals, you could be charged with consorting ... Why wouldn't you look at applying the sort of offence you use in the criminal law to those who are consorting with terrorist organisations or terrorists here in Australia?"

February 1, 2005 on ABC News  

"What you are seeing in the United States is the proper operation of the rule of law."

January 31, 2007 - The Age 

"People respond to detention in different ways. 

I don't hear most people who are detained in Australia are found to be unfit to plead simply because they've been detained ... Advice that we have had is that he has been treated humanely and in accordance with the international standards for interrogations." 

April 3, 2007, ABC's Lateline

"It's a very serious issue in relation to a plea bargain for somebody to make admissions of guilt that go to your whole future, and I wouldn't think one embarks upon that course lightly. He has done so, with advice from not only Major Mori but also his civilian counsel and I suspect while they weren't directly involved, he was also separately advised by Australian legal practitioners. He was tested before the military commission as to whether or not he was making those admissions voluntarily and whether they were true and he affirmed that that was the case. So you have not only Mr Hicks but also those who were advising him asserting that he was properly advised on these matters and they were the views he'd come to in relation to the conduct in which he engaged and has been offering a plea of guilty." 

From Alexander Downer

May 11, 2006 – AAP General News 

"What you can't do is let people who you are very concerned may commit acts of terrorism and kill people out on the streets. There is a war against terrorism and in war holding the enemy prisoner of course is quite legitimate. We've been prepared to go along with maintaining the facilities they have at (Guantanamo Bay) in the context of the war against terrorism." 

October 17, 2012 on the ABC's Lateline as the former foreign minister 

"David Hicks was somebody who admitted to providing material support for terrorism and he is somebody who clearly did work with the Taliban and Al Qaeda. The Taliban being the organisation that not only shot a 14-year-old girl the other day for supporting education for girls but is the organisation which has killed quite a number of Australian soldiers."  

Then there was Brandis 

July 21, 2011 on the ABC's The World Today, pressing for a proceeds of crime case against Hicks for publication of Guantanamo: My Journey (proceedings that were later withdrawn by the DPP because they were unsustainable)

"David Hicks should be pursued by the director of public prosecutions under the Proceeds of Crime Act because he clearly is a person who has earned royalties from his book on the basis of offences which he has committed and to which he in fact pleaded guilty. 

The Opposition has said all along since Hicks' rather noxious memoirs were published that the Government should take steps to seek a literary proceeds order under the Proceeds of Crime Act. 

The only thing that remains to be explained is why it took the Government so long to do so. It is approaching a year since Hicks' book was published and the Government and the Attorney-General in particular have some explaining to do as to why it has taken so long to initiate these proceedings." 

From The Daily Telegraph 

Editorial, Deserving only of our contempt, March 12, 2002 

"Regardless of the destiny of self-confessed Australian Taliban fighter David Hicks, his name will forever be associated with one of the blackest days in modern history. 

His infamy in taking up arms in support of the terrorist group responsible for the mass murder of thousands of innocent civilians in the September 11 attacks will become his epitaph." 

Piers Akerman, Justice required but mercy is not,  March7, 2002 

"Hicks, at least, is now safely under lock and key at Camp X-ray, the US base at Guantanamo Bay, but if he is returned here, will he be tried as an accessory to the murder of SAS Sergeant Andrew Russell? 

Or will we find all the usual suspects rushing to defend him on the grounds that Western society (also the provider of the world's welfare funds) is so overwhelmingly corrupt that all good people should hastily sign up with terrorist organisations to speed the overthrow of our civilisation? 

Given the nauseating statements that have already been made in Hicks' defence by the civil rights lobby, it's difficult to believe that his eventual return to Australia will be nothing less than a triumphal celebration."  

Piers Akerman, Mercy? Not with the scars so raw, September 10, 2002 

"Still, the pictures [of the destruction of the twin towers in New York] do serve to sap any reservoir of sympathy that might exist for those who are even remotely connected with the evil which engineered the destruction. 

No amount of pleading can conjure up a jot of mercy for them." 

Miranda Devine, Between the lines on David Hicks, May 26, 2011 

"Listening to David Hicks' speech to the Sydney Writers' Festival last weekend, you'd think he'd been over in Afghanistan wiping the brow of AIDS sufferers and holding the hand of leprosy victims.

Certainly those useful idiots of the audience who gave him a standing ovation seemed to think Hicks was the Australian bloke version of Mother Theresa. 

But just because some naive people think that being locked up in Guantanamo Bay and smacked around a bit was overly harsh punishment for suspected terrorists captured in Afghanistan just after September 11, 2011, that doesn't mean they're innocent." 

From The Australian 

Janet Albrechtsen, Soldiers of terror don't have rights, February 2002 

"Human rights groups like this do their own cause a huge disservice. Human rights should reflect a core group of universal moral standards - not the politics of those claiming an exclusive licence to define them.

And as The Wall Street Journal editorialised on Monday, Bush's decision to ignore the human rights industry may well save lives ...

Prisoners at Camp X-Ray enjoy three square meals a day and better medical treatment than any Cuban political prisoner has ever enjoyed, let alone many free Cubans on the other side of the barbed wire. Human rights groups complained that shaving the prisoners was 'culturally inappropriate' - but they needed to be de-loused."

Editorial, David Hicks to face justice, July 7, 2003 

"Even the uncontested facts about David Hicks are enough to condemn him, morally, in the hearts and minds of reasonable Australians. By enlisting to fight with the Taliban, Mr Hicks willingly threw in his lot with one of the most bloody-minded and fundamentalist regimes that even Central Asia has ever seen. Without the nurture and protection that the Taliban provided for Osama bin Laden and his al-Qa'ida terrorist network - with which David Hicks is claimed to have trained - the slaughter of nearly 3000 innocent people on September 11, 2001, could never have happened. 

As well as telling us what connection Mr Hicks may have had with al-Qa'ida, his trial may penetrate a deeper mystery: how could a kid from suburban Adelaide, with all the advantages that Australia has to offer, ever have attached himself to a set of values as twisted, as racist, and as violent as those of the Taliban? Mr Hicks's case has become something of a cause-celebre. This was predictable, given the depth of anti-Americanism among a small but vocal minority of Australians, but there is no justification for it. He has waited a long time for his trial, but that is a far cry from the torture and summary executions handed out to its enemies by the Taliban." 

Research: Kate Lilly