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For the American chaplain, see David Hicks (chaplain).
David Hicks outside his family home in Adelaide.

David Matthew Hicks (born August 7, 1975), also known as Abu Muslim al-Austraili and Muhammed Dawood, is an Australian who was captured in Afghanistan and has been held and tried as an unlawful combatant by the United States Government at Guantanamo Bay, his detainee number is 002.

Of the 500 detainees imprisoned at Guantanamo Bay, Hicks is one of four detainees formally charged with offences. Hicks served as an infantryman with the Taliban in Afghanistan. Originally, his trial before a U.S. military commission was due to begin in November 2005. However, the original charges against him were dropped following the Supreme Court Hamdi v. Rumsfeld ruling invalidating the constitutionality of the commission process. On September 29 2006 the US Senate and US House of Representatives, passed the Military Commissions Act of 2006 which resumed proceedings against Hicks with fresh charges.

On March 26, 2007, Hicks entered a guilty plea to the charge of providing material support for terrorism. He was sentenced to seven years imprisonment, of which all but nine months were suspended. He will serve the majority of this in an Australian prison.

Early life

David Hicks was born in Adelaide, South Australia, son of Terry and Susan, who are British citizens by birth. He has one sister. His parents separated when he was ten years old, his father later remarrying. Hicks was expelled from school at age 14.

Described by his father as "a typical boy who couldn't settle down", and by his old school mates from Salisbury High as a heavy drinker and cannabis smoker who would use a compass to scratch satanic symbols into his arm, Hicks moved between various jobs. These jobs included skinning kangaroos at a meat-packing factory, fishing for sharks, and working at a series of outback cattle stations in the Northern Territory, Queensland, and South Australia. It was at a cattle station that he met his wife by common-law Jodie Sparrow in 1992. Hicks and Sparrow had two children before separating in 1996. He eventually lost contact with his two young children. "He used to pinch cars and you know, that sort of stuff. Like, that was the only way he sort of fed himself and that." remembers Sparrow. After their separation Hicks moved to Japan to become a horse trainer.

Militant activity

File:David hicks full frame.jpg
David Hicks, on the left, posing with a Rocket propelled grenade (RPG) on his first day of training with the KLA in Albania

In 1999, Hicks traveled to Albania, where he joined the Kosovo Liberation Army (KLA), a paramilitary organization of ethnic Albanians fighting against Serbian forces in the Kosovo War, and served with them for two months. On returning to Australia Hicks applied to join the Australian Army but was rejected due to his low level of formal education. Hicks then converted to Islam and began to study Arabic.

On November 11, 1999 Hicks traveled to Pakistan to study Islam. After a period of time he began training with the Lashkar-e-Toiba learning guerrilla warfare, weapons training (including landmines), kidnapping techniques, and assassination methods. In a March 2000 letter, Hicks told his family

"don't ask what's happened, I can't be bothered explaining the outcome of these strange events has put me in Pakistan-occupied Kashmir in a training camp. Three months training. After which it is my decision whether to cross the line of control into Indian-occupied Kashmir."

In another letter on August 10 2000, Hicks wrote from Kashmir, claiming to have been a guest of Pakistan's army for two weeks at the front in the "controlled war" with India. At the time, Lashkar-e-Toiba was an Islamic fighting group that had widespread support in Pakistan. It had a reputation for being focused on fighting India in Kashmir but was also accused of attacks against Indian civilians. After the September 11, 2001 attacks and its banning as a terrorist group by Pakistan in January 2002, Lashkar-e-Toiba fragmented and branched out into sectarian violence. Lashkar-e-Toiba was banned in Australia in 2003.

A "resentful and deeply unflattering" handwritten memoir signed by Feroz Abbasi while incarcerated in Guantanamo Bay, later repudiated by Abbasi on October 20 2004 in another signed statement, claimed Hicks was "Al-Qaedah's 24 ct. Golden Boy" and "obviously the favorite recruit" of their al-Qaeda trainers during exercises at the al-Farouq camp near Kandahar.The failed British shoe bomber Richard Colvin Reid was another graduate of the camp. The memoir made a number of allegations, including that Hicks was teamed in the training camp with Filipino recruits from the Moro Islamic Liberation Front and that during internment in Camp X-Ray, "Hicks he was praying to Satan for help". Hicks "attended a number of al-Qaeda training courses at various camps around Afghanistan, including an advanced course on surveillance, in which he conducted surveillance of the US and British embassies in Kabul, Afghanistan". On one occasion when al-Qaeda founder Osama bin Laden visited an Afghan camp, Hicks questioned bin Laden about the lack of English in training material and subsequently "began to translate the training camp materials from Arabic to English". Hicks wrote home that he'd met Osama bin Laden 20 times, later telling investigators that he'd exaggerated. He'd seen bin Laden about eight times and spoken to him only once.Prosecutors also allege Hicks was interviewed by Muhammad Atef, an al-Qaeda military commander, about his background and "the travel habits of Australians". The US Department of Defense statement claimed "that after viewing TV news coverage in Pakistan of the Sept 11, 2001, attacks against the United States, returned to Afghanistan to rejoin his al-Qaeda associates to fight against US, British, Canadian, Australian, Afghan, and other coalition forces It is alleged Hicks armed himself with an AK-47 automatic rifle, ammunition, and grenades to fight against coalition forces."

Hicks spoke to his parents from just outside the southern Afghan city of Kandahar in November 2001. "He said something about going off to Kabul to defend it against the Northern Alliance," Terry Hicks said.

Capture

He was captured by a "Northern Alliance warlord" on or about December 9, 2001, near Kunduz, Afghanistan, and turned over to US Special Forces for $1000 on December 17, 2001. In an interview with SBS TV Dateline, his father, Terry Hicks, stated, "David was captured by the Northern Alliance unarmed in the back of a truck or a van. So it wasn't on the battlefield at all."

Hicks in custody

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Rendition

  • August 5 2004; an affidavit by Hicks claims mistreatments. (The affidavit was made public on December 10 2004.) The following are excerpts:
    • 9. I have been in the company of other detainees who were beaten while blindfolded and handcuffed. At one point, a group of detainees, including myself, were subjected to being randomly hit over an eight hour session while handcuffed and blindfolded.
    • 11. I have had my head rammed into asphalt several times (while blindfolded).
    • 13. I have had medication - the identity of which was unknown to me, despite my requests for information - forced upon me against my will. I have been struck while under the influence of sedatives that were forced upon me by injection.
    • 14. I have been forced to run in leg shackles that regularly ripped the skin off my ankles. Many other detainees experienced the same.
    • 15. I have been deprived of sleep as a matter of policy.
    • 16. I have witnessed the activities of the Internal Reaction Force (IRF), which consists of a squad of soldiers that enter a detainee's cell and brutalise him with the aid of an attack dog. The IRF invasions were so common that the term to be "IRF'ed" became part of the language of the detainees. I have seen detainees suffer serious injuries as a result of being IRF'ed. I have seen detainees IRF'ed while they were praying, or for refusing medication.
    • 23. At one point during 2003 alone, my weight dropped by 30 pounds (and I was not overweight to start).
    • 27. As noted earlier, the above catalogue of abuse and mistreatment is not complete. It is but a summary of some of the abuse I suffered, witnessed, and/or heard about since my detention began. I would be able to provide further information and detail if the Court so desires, but a complete account would require a substantially longer document. In fact, at my request and due to the persistence of my lawyers, I have recently met with US military investigators conducting the probe into detainee abuse in Afghanistan. Also, this is not the first time I protested my mistreatment, since on several occasions - in Afghanistan, and later at Guantanamo Bay - I informed representatives of the International Red Cross of the abuse.
  • In March 2006 the camp authorities moved all ten of the detainees who faced charges before the Guantanamo military commissions to solitary confinement. This move was described as a routine measure because of the detainee impending attendance at their tribunals. However The Jurist reported on August 23 2006 that Hicks remains in solitary, seven weeks following the US Supreme Court's confirmation of a lower court's ruling that the commissions were unconstitutional.

According to The Jurist Hicks' extended stay in solitary confinement has "deteriorated his condition".

David Hicks's cell and inset, the reading room with no books . The window is internal, facing onto a corridor.

Hicks' lawyer, Major Michael Mori, described Hicks as one of the best-behaved detainees, and said his solitary confinement, for 23 hours a day, was unnecessary.

Hicks's father Terry Hicks has sought since 2002 to have his son brought to Australia for trial. Since 2003 the Australian government has been requesting that Hicks be brought to trial without further delay, and has extended him consular support.

According to Hicks in conversations with his father, he was abused by both Northern Alliance and U.S. soldiers. Nevertheless, the Australian Government has accepted U.S. assurances that David Hicks and another Australian citizen formerly held at Guantanamo Bay, Mamdouh Habib, have been treated in accordance with international law. This is in contrast to the Human Rights Committee of the United Nations' report of July 28 2006, which criticises the United States for its human rights policies and positions. According to the Center for Constitutional Rights: "The United States has become a country that openly flouts human rights laws, refuses to respond to questions about policy and practice, and worst of all commits abuses that would have been unimaginable under prior administrations."

U.S. military authorities are investigating the claims in the August 5 2004 affidavit alleging that Hicks had been tortured.

In June 2006, Moazzam Begg, a British man who had also been held at Guantanamo Bay but was released in 2005, claimed in his book Enemy Combatant: A British Muslim's Journey to Guantanamo and Back that Hicks had abandoned his Islamic beliefs, and had been denounced by a fellow inmate, Uthman al-Harbi, for his lack of observance. Begg also recounts Hicks talking about suicidal impulses during his periods in isolation at Camp Echo, "He often talked about wanting to smash his head … against the metal of his cage and just end it all,"

Hicks's position

The U.S. administration has alleged that Hicks;

  • Attended advanced al-Qaeda training camps
  • Associated with senior al-Qaeda leaders after 9/11
  • Was issued weapons to fight US troops in Afghanistan
  • Carried out surveillance on US and other international embassies

In the documentary Peace, Propaganda and the Promised Land, Terry Hicks reads out excerpts of David Hicks's letters, in which Hicks says that his training in Pakistan and Afghanistan is designed to ensure "the Western-Jewish domination is finished, so we live under Muslim law again". He denounces the plots of the Jews to divide Muslims and make them think poorly of Osama bin Laden and warns his father to ignore "the Jews' propaganda war machine,"

Hicks allegedly told fellow recruits at his training camp he wanted to "go back to Australia and rob and kill Jews", "crash a plane into a building", and "go out with that last big adrenalin rush."

"He once told me in Afghanistan that if he were to go into a building of Jews with an automatic weapon or as a suicide bomber he would have to say something like 'there is no god but Allah' ect just so he could see the look of fear on their faces, before he takes them out," writes former Camp X-ray inmate Abbasi.

"I got to fire hundreds of bullets. Most Muslim countries impose hanging for civilians arming themselves for conflict. There are not many countries in the world where a tourist, according to his visa, can go to stay with the army and shoot across the border at its enemy, legally." Hicks stated in a letter to his father whilst serving in Kashmir.

Terry Hicks has claimed that his son seemed unaware of the September 11 attacks when they spoke on a mobile phone a few days after the American bombing campaign in Afghanistan began."It sounds like Western propaganda", Hicks told his father.

In November 2005, the Australian Broadcasting Corporation programme Four Corners broadcast for the first time a transcript of an interview with Hicks, conducted by the Australian Federal Police in 2002. In this interview Hicks acknowledged that he had trained with al-Qaeda in Afghanistan, learning guerrilla tactics and urban warfare. He also acknowledged that he had met Osama bin Laden. He claimed to have disapproved of the September 11 attacks but to have been unable to leave Afghanistan. He denied engaging in any actual fighting against U.S. or allied forces. Colonel Morris Davis, chief prosecutor for the US office of Military Commissions put it this way; "He eventually left Afghanistan and it's my understanding was heading back to Australia when 9/11 happened. When he heard about 9/11, he said it was a good thing (and) he went back to the battlefield, back to Afghanistan, and reported in to the senior leadership of al-Qaeda and basically said, 'I'm David Hicks and I'm reporting for duty'."

Four Corners journalist Debbie Whitmont said: Four Corners can confirm, that in Guantanamo, Hicks signed a statement written by American military investigators that includes the following, "I believe that al-Qaeda camps provided a great opportunity for Muslims like myself from all over the world to train for military operations and jihad. I knew after six months that I was receiving training from al-Qaeda, who had declared war on numerous countries and peoples."

On 6 February 2007, the Prime Minister of Australia John Howard stated that Hicks would be released from Guantanamo Bay if Australia requested it. "Let me, without getting into the weeds of the technical jargon, let me simply say that it has gone on for so long now that we will be pressing the Americans almost on a daily basis," Mr. Howard has told Southern Cross Broadcasting. The Australian Government has stated that it would like to see Hicks brought to trial "as soon as possible".

David Hicks's defence is being funded by Dick Smith, an Australian entrepreneur. Smith has stated that he is funding the defence "to get him a fair trial".

Hicks's cancelled trial

Hicks's trial was initially set for 10 January 2005. The U.S. Army appointed Major Michael Mori as his defence counsel.

In February the Hicks' family lawyer, Stephen Kenny, who had been representing Hicks in Australia without compensation since 2002, was dismissed from the defence team and Vietnam veteran and Army Reservist David McLeod replaced him.

The trial was delayed in November 2004 when a U.S. Federal Court ruled that the military commissions in question were neither competent nor lawful.

In July 2005, the U.S. appeals court ruled that the trial of "Unlawful Combatants" did not come under the Geneva Convention, and that they could be tried by a military tribunal.

In September it was announced that Hicks's trial would begin on 18 November.

In mid-February 2005, Jumana Musa, Amnesty International's legal observer at Guantanamo Bay, visited Australia to speak to Attorney-General Philip Ruddock (a member of Amnesty International) about the military commissions. The Sydney Morning Herald quoted Musa as stating that Australia is, "the only country that seems to have come out and said that the idea of trying somebody, their own citizen, before this process might be OK, and I think that should be a concern to anybody."

In July 2005 a U.S. appeals court accepted the prosecution claim that because "the President of the United States issued a memorandum in which he determined that none of the provisions of the Geneva Conventions "apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a high contracting party to Geneva," that Hicks, among others, could be tried by a military tribunal.

In early August 2005 leaked emails from former U.S. prosecutors were obtained by the Australian Broadcasting Corporation that were critical of the legal process. They accuse it of being "a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged" and "writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard, particularly when you want to call yourself an officer and lawyer."

Ruddock responded by saying that the email comments, which were written in March 2004, "must be seen as historic rather than current".

On 21 October 2005, The Age reported that the U.S. government announced that if Hicks was convicted it wouldn't count the time he has been detained against his sentence.

In the Four Corners interview, Terry Hicks discussed "allegations of physical and sexual abuse of his son by American soldiers". He said that David Hicks had objects inserted into his anus and had been repeatedly beaten while in American custody.

On 15 November 2005 District Judge Colleen Kollar-Kotelly stayed the proceeding against Hicks until the U.S. Supreme Court had ruled on Hamdan's appeal over their constitutionality.

On 29 June 2006, in the case Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military tribunals were illegal under United States law and the Geneva Conventions.

On 7 July 2006 a memo was issued from The Pentagon directing that all military detainees are entitled to humane treatment and to certain basic legal standards, as required by Common Article 3 of the Geneva Conventions.

On 15 August 2006, Attorney-General, Philip Ruddock announced that he would seek to return Hicks to Australia if the United States did not proceed quickly to lay substantive new charges.

On 6 December 2006, Hicks's legal team lodged documents with the Federal Court of Australia, arguing that the Australian government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks's incarceration by the U.S. comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

David Hicks is expected to bring a case seeking to force the Australian Federal Government to ask the U.S. government to free him, his lawyer said on March 9 2007, according to The Sydney Morning Herald.

Charges

Hicks was charged by a U.S. military commission, on August 26 2004; however, that commission was subsequently abolished and the charges thus voided when on June 29 2006, in the case Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions were illegal under United States law and the Geneva Conventions.

The indictment prepared for the previously scheduled trial had alleged that Hicks had trained and conspired in various ways, and was guilty of "aiding the enemy" while an "unprivileged belligerent". No specific acts of violence were alleged. He was detained in December 2001.

In the voided indictment of Hicks, the United States government had alleged that:

  • In November 1999 Hicks travelled to Pakistan, where he joined the paramilitary Islamist group, Lashkar-e-Toiba (Army of the Faithful).
  • Hicks trained for two months at a Lashkar-e-Toiba camp in Pakistan, where he received weapons training, and that during 2000 he served with a Lashkar-e-Toiba group near the Pakistan-Kashmir.
  • In January 2001 Hicks travelled to Afghanistan, then under the control of the Taliban regime, where he presented a letter of introduction from Lashkar-e-Toiba to Ibn al-Shaykh al-Libi, a senior al-Qaeda member, and was given the alias "Mohammed Dawood".
  • He was sent to al-Qaeda's al-Farouq training camp outside Kandahar, where he trained for eight weeks, receiving further weapons training as well as training with land mines and explosives.
  • He did a further seven-week course at al-Farouq, during which he studied marksmanship, ambush, camouflage and intelligence techniques.
  • At Osama bin Laden's request, Hicks translated some al-Qaeda training materials from Arabic into English.
  • In June 2001, on the instructions of Mohammed Atef, an al-Qaeda military commander, Hicks went to another training camp at Tarnak Farm, where he studied "urban tactics," including the use of assault and sniper rifles, rappelling, kidnapping and assassination techniques.
  • In August Hicks went to Kabul, where he studied information collection and intelligence, as well as Islamic theology including the doctrines of jihad and martyrdom as understood through al-Qaeda's fundamentalist interpretation of Islam.
  • In September 2001 Hicks travelled to Pakistan and was there at the time of the September 11, 2001 attacks on the United States, which he saw on television.
  • He returned to Afghanistan in anticipation of the attack by the United States and its allies on the Taliban regime, which was sheltering Osama bin Laden.
  • On returning to Kabul, Hicks was assigned by Mohammed Atef to the defence of Kandahar, and that he joined a group of mixed al-Qaeda and Taliban fighters at Kandahar airport, and that at the end of October, however, Hicks and his party travelled north to join in the fighting against the forces of the U.S. and its allies.
  • After arriving in Konduz on 9 November 2001, he joined a group which included John Walker Lindh (the "American Taliban"). This group was engaged in combat against Coalition forces, and during this fighting he was captured by Coalition forces.

In an interview with The Age newspaper in January 2007, Col. Morris Davis, the chief prosecutor in the Guantanamo military commissions, also alleged that Hicks had been issued with weapons to fight U.S. troops, and had conducted surveillance against U.S. and international embassies. Davis stated he would be charged for these offences, and predicted the charging would take place before the end of January. He compared Hicks to the Bali bombers, expressing concern that Australians were misjudging the military commission system due to PR "smoke" from Major Mori.

British citizenship application and rejection

In September 2005, it was realised that Hicks may be eligible for British citizenship through his mother, as a consequence of the Nationality, Immigration and Asylum Act 2002. Hicks's British heritage was revealed during a casual conversation with his lawyer, Major Michael Mori, about the 2005 Ashes cricket series. The British government had previously negotiated the release of the nine British nationals incarcerated at Guantanamo Bay, so it was considered possible that these releases could be extended to Hicks if his application was successful. In November 2005, the British Home Office rejected Hicks's application for British citizenship on character grounds, but his lawyers appealed the decision.

On 13 December 2005, Lord Justice Lawrence Collins of the High Court ruled that then-Home Secretary Charles Clarke had "no power in law" to deprive Mr Hicks of British citizenship "and so he must be registered". The Home Office announced it would take the matter to the Court of Appeal, but Justice Collins denied them a stay of judgement, meaning that the British government must proceed with the application.

On 17 March 2006, the Home Office alleged during its appeal case that Hicks had admitted in 2003 to the Security Service (British intelligence agency MI5) that he had undergone extensive terrorist training in Afghanistan.

On 12 April 2006, the Court of Appeal upheld the High Court's decision that Hicks was entitled to British citizenship. The Home Office declared it would appeal the matter again, its last option being to submit an appeal to Britain's highest court, the House of Lords, no later than 25 April. On 5 May, however, the Court of Appeal declared that no further appeals would be allowed, and that the Home Office must grant Hicks British citizenship.

Hicks's legal team claimed in the High Court on 14 June 2006 that the process of Mr Hicks's registration as a British citizen had been delayed and obstructed by the United States, which had not allowed British consular access to Hicks in order to conduct the oath of allegiance to the Queen and the United Kingdom. His lawyer, Major Mori, as an officer in the United States Marine Corps has the authority to administer oaths and offered to conduct the oath if the British government permitted it.

On 27 June, with Hicks's British citizenship confirmed, the British Foreign and Commonwealth Office announced that it would not seek to lobby for his release as it had with the other British detainees. The reason given was that Hicks was an Australian citizen when he was captured and detained, and that he had received Australian consular assistance.

On 5 July 2006, Hicks was registered as a British citizen, albeit only for a few hours—Home Secretary John Reid intervened to revoke Hicks's new citizenship almost as soon as it had been granted, citing a provision of the Immigration, Asylum and Nationality Act 2006 allowing the Home Secretary to "deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.". Hicks's legal team called the decision an "abuse of power", and announced they would lodge an appeal with the UK Special Immigration Appeals Commission and the High Court.

Seizure of Hicks's legal papers

Following the suicide of three detainees, camp authorities seized prisoners' papers, describing it as a security measure They claimed that they had found notes, written on the stationery issued to the lawyers who meet with detainees to discuss their habeas corpus requests, describing how to tie a hangman's noose.

According to the Sydney Morning Herald the Department of Justice acknowledged in court that "attorney-client communications" had been seized. Hicks's lawyer, Major Michael Mori questioned whether Hicks could have been part of a suicide plot, since he had spent the previous four months in solitary confinement in an entirely different part of the camps. According to the report, Mori commented that the confidentiality of attorney-client communications was: "...the last legal right that was being respected.", and that: "Now it appears that that's been violated as well."

Fear of punishment

The Australian Broadcasting Corporation reported that Hicks declined a visit from Australian Consular officials because he had been punished for speaking candidly with consular officials about the conditions of his detention on previous visits.

Rod Smith, the deputy first secretary of the Australian Department of Foreign Affairs and Trade, stated:

"It would be a matter of very great concern to us if Australians in detention overseas were punished for simply drawing to the attention of consular officials concerns that have about the conditions of their detention."

New charges claimed

On 3 February 2007, the US military commission announced that it prepared new charges against David Hicks. The drafted charges were attempted murder and providing material support for terrorism under the Military Commissions Act of 2006. Each offence carries a maximum penalty of life imprisonment. The prosecutors said they would argue for a gaol term of 20 years, with an absolute minimum of 15 years to be served. However the sentence, which is not required to take into account time already served, is ultimately up to a jury of US military officers. The Convening Authority assessed whether there was enough evidence for charges to be laid and Hicks trialled. The charge of providing material support for terrorism was based on retrospectively applying the law passed in 2006.

The Indian government has launched an investigation into alleged attacks by Hicks on their armed forces in Kashmir, 2000.

Speaking at the Human Rights Education Conference on 16 February 2007, former Australian Prime Minister Malcolm Fraser accused the Australian Government of betraying Hicks's rights and said that the military commission has been structured to produce a guilty verdict.

Also on 16 February 2007 a 9-page charge sheet detailing the new charges was officially released by the U.S Defense Dept.

The charge sheets alleged that:

  • In early 2001 Hicks personally collected intelligence on the U.S embassy in Kabul Afghanistan as part of an al-Qaeda training exercise.
  • Hicks travelled between Pakistan and Afghanistan before and after the September 11 terrorist attacks on New York and Washington, D.C.
  • Using the name Abu Muslim Austraili he attended al-Qaeda training camps.
  • In April 2001 Hicks also trained in al-Qaeda's guerrilla warfare and mountain tactics training course.
  • Hicks expressed to al-Qaeda leader Osama bin Laden his concern over the lack of English al-Qaeda training materials.
  • On or about 9 September, 2001 Hicks travelled to Pakistan, and that while at a friend's house he watched the September 11 terrorist attacks on New York and Washington, D.C. and expressed approval.
  • On his return to Afghanistan Hicks was issued an AK-47 automatic rifle and armed himself with 300 rounds of ammunition and 3 grenades to use in fighting the United States, Northern Alliance and other coalition forces.

Charges laid

On March 1 2007, David Hicks was formally charged with material support for terrorism, and referred to trial by the special military commission. The second charge of attempted murder was dismissed by Judge Susan Crawford, who concluded there was "no probable cause" to justify the charge.

Defense counsel alleged prosecution threats

On March 5 2007 Fairfax media reports raised fears that David Hicks's trial could have been postponed again, after his lawyer Major Michael Mori was allegedly threatened with a US military discipline offence by the Chief US military prosecutor, Colonel Morris Davis. Colonel Davis has criticised Major Mori's trips to Australia as excessive and has accused him of breaching Article 88 of the US military code, which relates to using contemptuous language towards the US President, Vice-President, and Secretary of Defense.

Major Mori cited concern that he was facing a conflict of interest and may have needed to excuse himself from the case due to a lack of impartiality.

On March 5 2007 Colonel Davis denied that he made any threats to have Major Mori court martialled, stating that he did not have the power to even bring charges.

To date, no charges have been filed against Major Mori.

Protester protesting against Hicks' incarceration

Human rights workers claim Hicks's charge violates treaties and Australian law

In a March 11 2007 opinion editorial in the Australian newspaper The Age, Peter Vickery a Special Rapporteur of the International Commission of Jurists, asserted that the sole remaining charge against Hicks was in violation of both Australian law and International treaties. Vickery stated that the offence of "providing material support for terrorism" was a "retrospective offence". Australian law proscribes prosecution for offences committed before the laws that made them indictable offences had come into force. According to Vickery so do both the Geneva Conventions, and the Civil and Political Covenant — both treaties to which the USA and Australia are signatories.

Vickery believes the offence of "providing material support for terrorism" only became an offence when President Bush signed the Military Commissions Act into law, on October 17th 2006.

Commenting on why individuals are protected from prosecution from retrospective offences Vickery wrote: "It deprives people of the knowledge of what behaviour will or will not be punished and makes breaches of the criminal law a lottery at the whim of those in power."

Vickery noted that Australian Prime Minister John Howard, while commenting on Hicks's case in 2004, stated, "It's fundamentally wrong to make a criminal law retrospective."

Hicks pleads guilty and is sentenced

On 26 March 2007, David Hicks entered a guilty plea to the charge of material support for terrorism. Prosecution and defence attorneys were ordered to draw up a plea agreement by 6am AEST on 27 March 2007.

On 31 March 2007, a US military tribunal handed down a seven year jail sentence to David Hicks on charge of supporting terrorism but suspended all but 9 months. A stipulation of the plea bargain ensured that the 5 years that Hicks remained at Guantanamo Bay would not be subtracted from any sentence handed down by the military tribunal. Further conditions are that Hicks should not speak to the media for one year, Hicks is to not take legal action against the United States and that Hicks is to withdraw allegations that the US military abused him. In the first conviction by the Guantanamo military tribunal and the first conviction in a US war crimes trial since World War II, a panel of military officers had recommended a maximum sentence of twelve years (seven years in addition to the five served before trial).

Australian Reaction

There has been speculation by Australian and US critics that the one-year media ban is a condition requested by the Australian government and granted as a political favour, Senator Bob Brown of the Australian Green Party has said, "America's guarantee of free speech under its constitution would have rendered such a gag illegal in the US.". The Australian government has denied that this media ban had anything to do with itself or an Australian federal election being due by January 2008..The Prime Minister told reporters; "We didn't impose the sentence, the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks's lawyers, and the suggestion … that it's got something to do with the Australian election is absurd." Brigadier-General Thomas Hemingway, the legal adviser to the military tribunal convening authority, has since claimed the gag order as his idea. Federal Attorney-General Philip Ruddock stated that Australian law would not prohibit Hicks from speaking to media.

United States Reaction

The length of the sentence caused an "outcry" within the United States and against Defense Department lawyer Susan Crawford who allegedly bypassed the prosecution in order to meet an agreement with the defense made before the trial. The lead prosecutor, Colonel Davis, was kept in the dark about the plea deal, and was astounded by the nine-month sentence. He told The Washington Post: "I wasn't considering anything that didn't have two digits", referring to a sentence of at least 10 years. The Los Angeles Times has said "Bringing (Hicks') case to the war crimes tribunal first, and before all the procedural guidance was ready, left the impression with many legal analysts that Crawford stepped in to do Howard a favour — at the expense of the commission's credibility."

Ben Wizner of the American Civil Liberties Union has said "If the United States were not ashamed of its conduct, it wouldn't hide behind a gag order. The agreement says he wasn't mistreated. Why aren't we allowed to judge for ourselves?".

See also

Islamic terrorism and Australia

References

  1. ^ "The US charges David Hicks". The Sydney Morning Herald. 2004-06-11.
  2. list of prisoners (.pdf), US Department of Defense
  3. Hovell, Devika (2005-11-11). "Justice at Guantanamo? The Paradox of David Hicks". {{cite web}}: Check date values in: |date= (help)
  4. ^ Transcript: The Australian Taliban, Sunday, nine Network, 2002-03-03
  5. "US moving on new Hicks charges". The Age. 2007-01-05. {{cite news}}: Text "accessed 2007-04-05" ignored (help)
  6. "US announces new Hicks charges". The Sydney Morning Herald. 2007-02-03. {{cite news}}: Unknown parameter |accessed= ignored (help)
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  9. Hicks sentenced to nine months. News.com.au. March 31, 2007
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  46. Leaked emails claim Guantanamo trials rigged, Australian Broadcasting Corporation, 2005-08-01
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  61. Britain loses appeal, must act on Hicks, The Age, 2006-05-07
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  72. Allard, Tom (2007-02-01). "Hicks may not get sentence cut for time served". The Sydney Morning Herald. Retrieved 2007-02-15.
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  79. Holroyd, Jane (2007-03-07). "Hicks charged with material support for terrorism". The Age.
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  81. ^ "Charge flouts a basic human right". The Age. 2007-03-11.
  82. Elliott, Geoff (2007-03-27). "Hicks home 'in months'". The Australian.
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  86. Melia, Micheal (March 30, 2007). "Australian Gitmo Detainee Gets 9 Months". Washington Post. {{cite news}}: Unknown parameter |accessed= ignored (help)
  87. "Mixed reactions to Hicks's sentence". Brisbane Times. Fairfax. 2007-04-02. {{cite news}}: Unknown parameter |accessed= ignored (help)
  88. "We didn't gag Hicks: PM". Sydney Morning Herald. Fairfax. 2007-04-02. {{cite news}}: Unknown parameter |accessed= ignored (help)
  89. "Ruddock denies fixing Hicks plea". ABC Online News. Australian Broadcasting Corporation. 2007-04-02. {{cite news}}: Unknown parameter |accessed= ignored (help)
  90. cite news |url=http://www.theage.com.au/news/national/hicks-gag-my-idea-says-us-general/2007/04/04/1175366326258.html?page=fullpage#contentSwap1 | title=Hicks gag my idea says US General
  91. cite news |url=http://www.abc.net.au/am/content/2007/s1889328.htm | title=Aust cannot enforce Hicks gag order: Ruddock (transcript) | date=2007-04-04 | work=ABC Online News/ABC Local Radio | publisher=Australian Broadcasting Corportation | accessed=2007-04-04}}
  92. "Outcry over Hicks sentence 'fix'". The Age. Fairfax. 2007-04-02. {{cite news}}: Unknown parameter |accessed= ignored (help)
  93. "Detainee's plea deal angers some legal experts". LA Times.com. Los Angeles Times. 2007-04-01. {{cite news}}: Unknown parameter |accessed= ignored (help)
  94. Cite error: The named reference bt20070331 was invoked but never defined (see the help page).

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