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Guilt in the minor league

28 Mar 2007
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David Hicks admitted nothing more than he had described in letters home, writes Andrew Lynch

DAVID HICKS has pleaded guilty and the consequences for him personally should be known soon enough. But what does this development mean for the Australian community, which has been debating his situation - whether as defenders or critics of Hicks and the way he has been treated - for so many months?

There can be no doubt that the nature and intensity of the public debate over Hicks will shift in light of his guilty plea. Any movement in a scenario that has been at an impasse for so long must be a source of relief to the Australian government. It was suffering a significant backlash over its handling of the matter and yet had no obvious means of bringing about a resolution. Ironically, this was a power that David Hicks - otherwise so disempowered - possessed and that the Howard government did not.

Had Hicks maintained his innocence, it was all too likely that a series of legal challenges to the validity of the new military commission system would have been launched. Those hearings would have taken quite some time - another few years even - to percolate to the top of the United States judicial system.

Many, including the prime minister, have pointed out that the length of Hicks’ detention has certainly been exacerbated by the challenges made to the earlier military commissions. But Guantanamo Bay detainees were entitled to resist the legality of the process by which they were to be tried - and were vindicated by the United States Supreme Court in the Hamdan decision of last year.

That case forced the American government to redesign the powers and procedures of the military commissions. The revamped system received the approval of Congress, but Major Michael Mori, Hicks’ US military lawyer, continued to argue that the validity of the new commissions under the international Geneva Convention remained in doubt. There certainly remained elements - including reliance on hearsay evidence - that gave disquiet over the fairness of the process by which Hicks was to be tried.

Those concerns are, at a stroke, rendered largely irrelevant to future discussion of the Hicks case. His plea of guilt amounts to a submission to the jurisdiction of the commission. If the new system is illegitimate, it will fall to another detainee to bring the challenge.

But does the guilty plea effectively mean that the many in the Australian community who sympathised with Hicks’ plight were misguided? Does it vindicate the length of his detention to date and the government’s position?

To answer those questions, we need to recognise a couple of things. First, over the past five years, the charges against Hicks have been watered down. He has at various times faced charges of attempted murder, conspiracy and aiding the enemy. But all that remained was the charge lodged against him just last month - providing material support for terrorism.

It isn’t hard to see that the case against Hicks has been steadily cut back to an offence almost tailored to accord with his own account of his activities in letters home to his father from Afghanistan. They confirm that Hicks was entangled in some form of soldiering with the Taliban. It may be a cop-out for Mori to describe this as just “poor life choices”, but equally it is clear that Hicks was far from a big fish - just a deluded one.

He refused to plead guilty to the stronger offences previously brought against him. Likewise, even on the remaining charge, Hicks refused to admit that his “material support” extended to entering Afghanistan with the intention of assisting al-Qaeda in armed conflict with the US. His guilty plea covers only those activities and links he had essentially admitted to in letters home. Only those people who let mythologising of Hicks obscure the factual record would be surprised and disappointed that he was prepared to wear this aspect of the charge.

Hicks’ decision to plead guilty may understandably have been influenced by the dramatic loss of two members of his legal team as the hearing got under way. He was shocked when Colonel Ralph Kohlmann, as presiding judge, removed first Mori’s assistant and then Joshua Dratel, his civilian lawyer, from the case. After many long years of confinement, which may or may not have involved mistreatment, and uncertain about how to proceed so as to bring his detention to an end, the decimation of his legal team may well have tipped the scales for Hicks. Why continue to fight a system so hostile to giving him a fair trial?

The public will be curious about what happens now to Hicks and may be appeased by the government’s assurances that he will be able to serve his sentence back in Australia. The Howard government will welcome news of his guilty plea and hope that this will deflate the issue significantly by the time of this year’s election.

But arguably the damage has already been done - and not just to David Hicks himself. Dissatisfaction with the way in which the government abandoned one of its citizens to a foreign system as mired in controversy and delay as that of the US military commissions may well linger.

Hicks’ conviction will owe nothing to the speedy and impartial application of justice. As a result, even those convinced of his guilt can take little solace in this development.

Andrew Lynch is director of the terrorism and law project at the Gilbert + Tobin Centre of Public Law, University of New South Wales, and co-author of What Price Security? Taking Stock of Australia’s Anti-Terror Laws (UNSW Press in association with APO, $16.95).

Publication Details
Published year only: 
2007
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