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The Saga of David Hicks

Hilary Charlesworth

Members of the Australian government who have supported David Hicks’ prosecution under the flawed Military Commissions Act appear to have breached the Australian Criminal Code. The Code defines a war crime to include depriving a person engaged in armed conflict of the rights of a “fair and regular trial”, or aiding, abetting or counselling such a deprivation.

With the imminent return of David Hicks to a South Australian prison and his release by the new year, we have a resolution of sorts to a divisive national issue. From a legal perspective, the outcome is both mysterious and unsatisfactory from all angles. The plea bargain, providing a 9-month term in an Australian prison, could not satisfy the Australian or US governments, who have insisted for the last five years that Hicks was ‘the worst of the worst’. The curious conditions attached to the sentence are both manifestly political and unenforceable in Australian courts. Hicks’ certification that he was not treated illegally by the US is directly contradicted by his affidavit in citizenship proceedings before the UK courts, which sets out evidence of torture by US officials. The outcome of the Hicks’ plea bargain also cannot satisfy those who have called for a fair and open trial.

Foreign Minister Alexander Downer referred last week to the end of the David Hicks ‘saga’. The term ‘saga’ is typically accorded two different dictionary meanings: ‘a long, involved story, account, or set of incidents’ or ‘a long story of heroic achievement’. Mr Downer’s use of the word saga is certainly accurate in the former sense. The story of David Hicks has seemed interminable, with five years between his arrival in Guantanamo Bay and the conclusion of the Military Commission process last weekend. It has had many convoluted twists and turns.

The saga can be read on a number of levels: It has been a dramatic personal story of a young Australian who went dangerously off the rails and of a remarkably devoted father. It has been a story about the current nature of the Australian-US alliance, with responsibility for the situation of an Australian citizen, Hicks, effectively surrendered to the US. It has been a story about the way that post-September 11 politics has allowed the ill-defined concept of terrorism to obscure the significance of individual rights. And it has been a story about the fragility of the idea of the rule of law in Australia

Much of the media and political discussion of the David Hicks saga has been confined to the specific level of his life and personality. Attempts to go beyond this to raise the deeper political and legal issues at stake have been met with the charge that critics of the legal process either support David Hicks’ activities, or that they are at least attempting to play down the seriousness of the threat of terrorism he represents or depict him as a type of martyr. In fact, most legal critics would agree that Hicks has admitted to many actions that are hard to support in any moral sense: From January to September 2001 Hicks trained extensively with al Qaeda in Afghanistan and indeed complained to Osama bin Laden personally about the lack of English language training material; he was in Pakistan on 11 September 2001 and he welcomed the attacks on the US that day; by October 2001, he was back in Afghanistan where he guarded a tank outside Kandahar airport during Operation Enduring Freedom. He travelled to Kabul, later spending two hours on the front lines of battle in Konduz on 9 November 2001 and then tried to flee back to Pakistan when he was captured by the Northern Alliance and handed over to US forces. These actions provided the basis for a charge of ‘providing material support for terrorism’ under the US Military Commissions Act 2006, to which Hicks pleaded guilty.

But a basic legal concern is that when Hicks was roaming around Afghanistan, guarding tanks and meeting Osama bin Laden, he was doing nothing then illegal under US, Australian or international law. Had he consulted a legal adviser before his journey, he would have been informed that his travels were dangerous and foolhardy, but not that they were illegal. It was precisely because no Australian law clearly made Hicks’ 2001 activities criminal that the Australian government refused to seek his return to face charges in Australian courts (although the government’s justification for this proposition has never been made public). The problem with retrospective laws is that they deprive people of the knowledge of what behavior is considered criminal and make breaches of the criminal law depend on the whim of those in power.

The Australian government has, arguably, the theoretical legislative power to enact retrospective criminal laws, but it declined to do so in this case, suggesting that Australia was unwilling to abrogate a longstanding principle of the common law. In the United States, restrospective criminal laws are, by contrast, unconstitutional. However, despite the fact that there was also no United States law that rendered Hicks’ conduct illegal at the time it was undertaken, the United States has been prepared to enact a retrospective law to make Hicks’ actions illegal. There is some irony in the fact that an Australian law could have been drafted to criminalise Hicks’ conduct, but Australia did not take this path, while the US law under which Hicks’ plea bargain was arranged, the Military Commissions Act of 2006, is of questionable legality because of its retrospectivity. If the US law survives the scrutiny of the US Supreme Court, it will only be on the narrow technical ground that constitutional rights guarantees are not held applicable to non-citizens who are held outside US territory.

The second significant issue for lawyers is that the Military Commission structure is flawed, judged by international, United States and Australian legal standards. It may have produced an immediate outcome in the Hicks case that is acceptable to the protagonists (although the result appears to have been achieved more by political intervention in the last few days than by the operation of the Commission system), but it was designed to bypass many legal standards that allow justice to be done and to be seen to be done. The Military Commissions Act 2006 was strongly criticised as a breach of fundamental rights by over 600 US lawyers in a letter to Congress on the eve of its adoption. Among other things, the Military Commissions Act provides an amnesty for United States officials who may have committed war crimes under American statutes; it decriminalises a wide range of violations of the Geneva Conventions of 1949; it grants the US President power to deem individuals (including citizens) as enemy combatants; it removes the writ of habeas corpus (the right to challenge the legality of detention) for foreigners deemed enemy combatants by the President or his agents; and it allows trials to be based based on secret or coerced evidence. For these reasons, members of the Australian government who have supported David Hicks’ prosecution under the flawed Military Commissions Act appear to have breached the Australian Criminal Code. The Code defines a war crime to include depriving a person engaged in armed conflict of the rights of a ‘fair and regular trial’, or aiding, abetting or counselling such a deprivation.

At the heart of the concept of the rule of law, the basis of our legal system, is the proposition that everyone, including the government, should be accountable to laws that are publically promulgated, equally enforced and independently adjudicated. All three elements of the rule of law are breached by the Military Commissions Act. First, it retrospectively criminalises particular activities and decriminalises others; second, it applies different standards to US citizens and non-US citizens; and third, the system of adjudication it establishes is highly dependent on the executive branch of government, and thus manipulable by political imperatives. If we consider the concept of a saga in its more mythological sense, the David Hicks affair is, then, a narrative of destruction rather than heroism, and it will undermine faith in our government’s commitment to a fair and open legal system for many years.