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The resolution of the David Hicks saga has revealed much more about the hypocrisy of the US military commission system and the mindset of the Australian government than it has about Hicks’ role in international terrorism.

It is now beyond doubt that the military commissions have more to do with servicing the administrative and political convenience of the US and allies than with dispensing justice to people accused of terrorist offences. It is just as clear that the dominant attitudes of Australian government leaders are cynicism and vindictiveness and that they are driven primarily by their desire to sidestep a potentially damaging political issue ahead of this year’s Federal election.

The sentence and conditions imposed on Hicks leave little room for doubt that behind the facade of last week’s proceedings at Guantanamo Bay there was a deal - a fix - between the Bush and Howard administrations to remove what had become a problem for them both.

US lead prosecutor Colonel Morris “Moe” Davis, apparently shocked by the direct deal between lawyers for the US defence department and for Hicks, told the Washington Post that he was not even considering a sentence “that didn’t have two digits.”

So obvious is this fix, and so unclear are the legal implications, that it remains an open question as to whether it will in fact assist the government electorally and whether it will ultimately to be legally enforceable if challenged. South Australian Premier Mike Rann has asked the right initial questions: For five years Australians have been told Hicks is a dangerous terrorist. What are the conditions of his early release? What are the parole conditions? Who will supervise him?

That the Guantanamo Bay deal was to Hicks’ advantage - he will be home within weeks and a free man by next January - is really beside the point. What will never be tested in a courtroom, what will never be assessed by a jury, is the extent and gravity of his involvement with al-Qaeda.

Hicks pleaded guilty to supporting a terrorist group, agreed not to talk about his experiences for a year, and acknowledged that he had not been mistreated by his US military gaolers during his five years at Guantanamo Bay. In return he was given a largely suspended seven-year sentence that will see him free within nine months.

So, in the short-term everyone wins. Hicks gets to go home. The Australian government gets to wave Hicks’ guilty plea and (it hopes) to remove him from pre-election politics. The US government avoids a high-profile Hicks show trial before its shonky military commission and (it hopes) to remove a serious impediment to US-Australia relations and a source of rising Australian hostility to the US.

The loser, of course is the idea of justice. The resolution of the Hicks case has further eroded the Australian government’s commitment to justice. It was prepared to acquiesce in the perversity of the military commission system and to leave an Australian citizen in Guantanamo Bay for five years. That delay in itself was profoundly unjust. In fact the Australian and US governments showed little concern about the delays until they became politically uncomfortable for them.

Given the arrangement into which the parties have now entered, Hicks’ guilty plea and apologies have to be seen as his get-out-of-gaol pass rather than a serious recognition and acceptance of the offence with which he was charged. His lawyer Major Michael Mori downplays Hicks as a “wannabe” soldier, a dope rather than a danger. Prosecutor Lieutenant Colonel Kevin Chenail told the Military Commission: “We are face to face with the enemy.”

But the fix was in and neither claim was put to the test. Prime Minister John Howard urged Australians not to view Hicks as a hero. In fact nobody does view Hicks as a hero. Even more disingenuously Howard says Hicks was sentenced by a US judge and that the Australian government was not consulted. In fact Australia only had to let the US defence department legal authorities know what it wanted. The mythical “reasonable person” of legal rhetoric would find it impossible to believe that the Australian government did not know about and approve the plea bargain deal.

One particularly shabby aspect of this affair has been the role and rhetoric of the foreign affairs minister, Alexander Downer. Downer was among senior ministers quietly encouraging journalists recently to write that Hicks could be released if he agreed to a plea bargain involving a guilty plea to the charge of supporting a terrorist group. Another was the attorney-general, Philip Ruddock.

Earlier Downer was at the forefront the campaign insisting insist that Hicks was too dangerous to be released onto the streets of his home town of Adelaide. Now Downer is saying: “I consider anybody who goes and fights for al-Qaeda to be dangerous”. It is hard to read these words as other than a vindictive afterthought echoing Howard’s superfluous observation that Hicks should not be seen as a hero.

Perhaps, as many journalists have rushed to claim, Hicks’ guilty plea and early release will be the end of the matter in the Australian public and political consciousness, a problem solved for the government’s election campaign planners - especially as Labor has fallen into step with the outcome. But the fix is so brazen, such a legal travesty, that it might cling to the government like a bad smell even after the gagged Mr Hicks returns to serve out his sentence in South Australia.

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