David Hicks

For the American chaplain, see David Hicks (chaplain).

David Hicks outside his family home in Salisbury Park, South Australia.

David Matthew Hicks (born 7 August 1975) is an Australian who, after five years detention by the United States government for involvement with terrorism, entered into a plea bargain to become the first Guantanamo Bay detainee to be convicted under the U.S. Military Commissions Act of 2006. Hicks's treatment, trial process and outcome, and the newly created legal system under which these events took place, drew widespread criticisms and controversy.

Using the name Muhammed Dawood, the latter being Arabic for "David", Hicks undertook military training in al Qaeda-linked camps and served with the ruling Taliban in Afghanistan in 2001. He was captured in December 2001 by the Afghan Northern Alliance, sold for a $1,000 bounty to the U.S. military, transported to Guantanamo Bay where he was designated an illegal enemy combatant and held without recourse to normal processes of law, during which time he alleged he had been tortured.

Initial charges were made in 2004 under a specially constituted commission. Those charges were invalidated when the military commissions were ruled unlawful by the U.S. Supreme Court in 2006. Revised charges were filed in February 2007 before a new commission under the new Act. The following month, in accordance with a pre-trial agreement struck with convening authority Judge Susan J. Crawford, Hicks pled guilty to providing material support for terrorism. Hicks's legal team attributed his acceptance of the plea bargain to his "desperation for release from Guantanamo". The next month, Hicks was returned to Australia to serve the remaining nine months of a suspended seven-year sentence. The nine month period precluded media contact and drew criticism for delaying his release until after the 2007 Australian election.

Hicks was released from Adelaide's Yatala Labour Prison on 29 December 2007.

Early life

David Hicks was born in Adelaide, South Australia to Terry and Susan Hicks. His parents separated when he was ten years old, his father later remarrying. He has one sister.

Described by his father as "a typical boy who couldn't settle down" and by his former principal as one of "the most troublesome kids", Hicks experimented with alcohol and drugs in his teen years and was expelled from school at age 14. Before turning 15, Hicks was given dispensation by his father from attending school. His former partner has claimed that Hicks then turned to criminal activity, including vehicle theft, in order to feed himself, although no adult criminal record was ever recorded for this.

Hicks moved between various jobs, including 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. He met Jodie Sparrow, his de facto wife at one such cattle station in 1992. Hicks and Sparrow had two children before separating in 1996. He eventually lost contact with his two young children. After their separation, Hicks moved to Japan to become a horse trainer.

Religious and militant activities

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 travelled to Albania, joining the Kosovo Liberation Army (KLA), a militant organisation of ethnic Albanians fighting against Serbian forces in the Kosovo War, for two months. Upon return 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. He renounced his faith during the earlier years of his detention at Guantánamo.

Lashkar-e-Toiba

On 11 November 1999, Hicks travelled to Pakistan to study Islam and began training with Lashkar-e-Toiba in early 2000 In a March 2000 letter to his family, Hicks wrote:

"don't ask what's happened, I can't be bothered explaining the outcome of these strange events has put me in Pakistan-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 10 August 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.

"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."

Afghanistan

Hicks attended a number of al-Qaeda training courses at various camps around Afghanistan, learning guerilla warfare, weapons training, including landmines, kidnapping techniques and assassination methods. He also participated in an advanced course on surveillance, in which he conducted surveillance of the U.S. 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 but later told investigators he had exaggerated, that he had 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, Hicks returned to Afghanistan to rejoin his al-Qaeda associates to fight against U.S., 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."

In a memoir that was later repudiated by its author, Guantanamo detainee Feroz Abbasi claimed Hicks was "Al-Qaedah's 24 [carat] Golden Boy" and "obviously the favourite recruit" of their al-Qaeda trainers during exercises at the al-Farouq camp near Kandahar. The memoir made a number of claims, 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 [said] he was praying to Satan for help".

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 and detention

He was captured by a "Northern Alliance warlord" near Kunduz, Afghanistan, on or about 9 December 2001, and turned over to US Special Forces for $1000 on 17 December 2001. Hicks's father Terry, when interviewed, said "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."

David Hicks's Guantanamo Bay cell (November 2006), and inset, the reading room with no books

In 2002, Hicks's father sought to have him brought to Australia for trial. In 2003, the Australian government requested that Hicks be brought to trial without further delay, extending Hicks consular support per its responsibilities and legal aid under the Special Circumstances Overseas Scheme.

In an affidavit, dated 5 August 2004 and released on 10 December 2004, Hicks alleged mistreatment by his captors, included being:

• beaten while blindfolded and handcuffed
• forced to take unidentified medication
• sedated by injection without consent
• struck while under sedation
• regularly forced to run in leg shackles causing ankle injury
• deprived of sleep "as a matter of policy"
• witness to use of attack dogs to brutalise and injure detainees.

He also said he met with US military investigators conducting a probe into detainee abuse in Afghanistan and had told the International Red Cross on earlier occasions that he had been mistreated.

Hicks claims to have found conditions at the camps in the latter years to be equally trying. According to conversations with his father, Hicks said he had been abused by both Northern Alliance and US soldiers. In response, the Australian government announced its acceptance of U.S. assurances that David Hicks had been treated in accordance with international law. In March 2006, camp authorities moved all ten of the Guantanamo detainees who faced charges into solitary confinement. This was described as a routine measure because of the impending attendance of the detainees at their respective tribunals. However, Hicks remained in solitary confinement, for seven weeks after the US Supreme Court's confirmed a ruling that the commissions were unconstitutional, which was reported to have "deteriorated his condition". Hicks was a well-behaved detainee, but he was in solitary confinement for 23 hours a day.. The window in his cell was internal, facing onto a corridor. Hicks claimed to have 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. Hicks was 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." 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.

The legal process

The U.S. Army appointed United States Marine Corps Major Michael Mori as defence counsel to Hicks. Hicks's civilian defence was being funded by Dick Smith, an Australian entrepreneur. Smith has stated that he was funding the defence "to get him [Hicks] a fair trial".

In Guantanamo, Hicks signed a statement written by American military investigators which said "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."

Initial charges

Hicks was charged by a U.S. military commission, on 26 August 2004. A Summary of Evidence memo was prepared for Hicks's Combatant Status Review Tribunal on 7 September 2004, although there is no record of participation by Hicks in that review. The memo listed the following allegations against him:

a. The detainee is an al-Qaida fighter:

1. The detainee affiliated himself with the Taliban.
2. The detainee knew his training was conducted by al-Qaida, which had declared war on the United States.
3. The detainee was trained to use grenades, landmines, rocket-propelled grenades and other small arms weapons.
4. The detainee attended the al-Qaida Information Course in Kabul, where the instructor cited the al-Qaida bombing of the USS Cole as a positive example of the uses of al-Qaida training.
5. The detainee met Osama Bin Laden on approximately eight occasions.

b. The detainee participated in military operations against the coalition.

1. The detainee personally collected intelligence on the American Embassy in Afghanistan for al-Qaida.
2. Following 9-11, the detainee met with a senior al-Qaida leader to discuss various locations to fight against the United States and Northern Alliance forces.
3. After being stationed near the Khandahar airport [sic], the detainee agreed to fight on the frontlines in Konduz.
4. The detainee was captured by Northern Alliance forces near Bagram.
5. While engaged in combat, the detainee failed to wear a uniform or any type of emblem or distinctive military article designating him as a fighter; nor did he follow any typical military chain of command.

Hearing room where Guantanamo captive's annual Administrative Review Board hearings convened for captives whose Combatant Status Review Tribunal had already determined they were an "enemy combatant".

Detainees determined to have been properly classified as "enemy combatants" were scheduled to have their dossier reviewed at annual Administrative Review Board hearings. These hearings were authorized to consider whether a detainee should continue to be detained by the United States, on the basis that they continued to pose a threat, or whether they could safely be repatriated to the custody of their home country, or whether they could be set free. In September 2007 the Department of Defense released all the Summary of Evidence memos prepared for the Administrative Review Boards convened in 2005 or 2006. There is no record that an Administrative Review Board convened in 2005 or 2006 to review Hicks's detention.

On 29 June 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 commission presiding over Hicks's case was subsequently abolished and the charges against him voided. The indictment prepared for that trial had alleged that Hicks had trained and conspired in various ways, and was guilty of "aiding the enemy" while an "unprivileged belligerent", but no specific acts of violence were alleged:

• In November 1999 Hicks travelled to Pakistan, where he joined the paramilitary Islamist group, Lashkar-e-Toiba (Army of the Pure).
• 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 Occupied 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 US 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.

The US 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 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 US troops, and had conducted surveillance against US 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 Hicks's lawyer.

James Yee, a US Army chaplain who regularly counselled Hicks while detained at Guantanamo Bay, gave a statement shortly after Hicks was freed in December 2007. He said that he did not feel Hicks was a threat to Australia, and that "Any American soldier who has been through basic training has had 50 times more training than this guy".

Proceedings

In November 2004, Hicks's trial was delayed when a US Federal Court ruled that the military commissions in question were neither competent nor lawful. In February 2005 the Hicks's 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.

Hicks's trial was next set for 10 January 2005, but there were numerous postponements and further legal wrangling over the years that followed. 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. Musa stated that Australia was "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 US 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 July 2005, the US 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 early August 2005, leaked emails from former US prosecutors criticised the legal process, accusing 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 emails, written in March 2004, "must be seen as historic rather than current." In October 2005, the US government announced that if Hicks was convicted, his pre-trial detention would not count as time served 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 US Supreme Court had ruled on Hamdan's appeal over their constitutionality.

2006 was also fraught with delays. 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 US comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

On 9 March 2007, his lawyer said that David Hicks was expected to bring a case seeking to force the Australian Federal Government to ask the US government to free him. On 26 March 2007 Leigh Sales suggested, "The Hicks defence strategy relies on delaying the process for so long that the Australian Government will be forced to ask for the prisoner’s return."

As years passed, the legitimacy, integrity and fairness of trialling Hicks before a US military commission was increasingly questioned.

British citizenship bid

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, 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.

Hicks applied for citizenship, but there were six months of delays. 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 military lawyer has the authority to administer oaths and offered to conduct the oath if the American 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 section 56 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. Described as a security measure, it was claimed that instructions for tying a hangman's noose had been found written on stationery issued to the lawyers who met with detainees to discuss their habeas corpus requests. The Department of Justice acknowledged in court that "privileged attorney-client communications" had been seized. Hicks's lawyer questioned whether Hicks could have been part of a suicide plot, since he had spent the preceding four months in solitary confinement in a different part of the camp, and expressed concern that attorney-client confidentiality, "the last legal right that was being respected", had been violated.

Other allegations

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 adrenaline rush," 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' etc. [sic] just so he could see the look of fear on their faces, before he takes them out," writes former Camp X-ray inmate Abbasi, who had a rivalry with Hicks. Hicks said, in a letter to his father whilst serving in Kashmir: "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." "It sounds like Western propaganda," Hicks told his father. Terry Hicks claimed that his son was unaware of the September 11 attacks when they spoke on a mobile phone a few days after the American bombing campaign in Afghanistan began.

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 US 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'."

New charges

On February 3, 2007, the U.S. military commission announced that it had 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 goal term of 20 years, with an absolute minimum of 15 years to be served. However the sentence, which was not required to take into account time already served, was 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.

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

The charge sheets alleged that:

• Around August 2001 Hicks conducted surveillance on the American and British embassies in Kabul.
• Using the name Abu Muslim Austraili he attended al-Qaeda training camps.
• Around April 2001, Hicks returned to al Farouq and trained "in al-Qa'ida's guerilla warfare and mountain tactics training course". The course included "marksmanship; small team tactics; ambush; camouflage; rendezvous techniques; and techniques to pass intelligence to al-Qa'ida operatives".
• While at the al Farouq camp, al-Qa'ida leader Osama bin Laden visited the camp on several occasions and "during one visit Hicks expressed to bin Laden his concern over the lack of English al-Qa'ida training material".
• On or about September 12, 2001, he left Pakistan after watching TV footage of the September 11 terrorist attacks to return to Afghanistan "and, again joined with al-Qa'ida".
• 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.
• On or about November 9, 2001, Hicks spent about two hours on the front line at Konduz "before it collapsed and he was forced to flee".
• Around December 2001, Northern Alliance forces captured Hicks in Baghlan, Afghanistan.

On 1 March 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.

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

In March 2007, the prospect of further delay loomed when Mori was allegedly threatened with a US military discipline offence by the Chief U.S. military prosecutor, Colonel Morris Davis, but no charges were filed against Mori.

Many leaders and legal commentators in both countries criticised the prosecution as the application of ex post facto law and deemed the 5-year process to be a violation of Hicks's basic rights. The United States countered that the charges relating to Hicks were not retrospective but that the Military Commisions Act had codified offences that had been traditionally tried by military commissions and did not establish any new crimes.

Hick's defence lawyer and many international judiciary members claimed that it would have been impossible for a conviction to be found against Hicks.

Pre-trial agreement and sentence

On 26 March 2007, following negotiations with Hicks's defense lawyers, the convening authority Judge Susan Crawford directly approved the terms of a pre-trial agreement. The agreement stipulated that Hicks enter a guilty plea to a single charge of providing material support for terrorism in return for a guarantee of a much shorter sentence than had been previously sought by the prosecution. The agreement also stipulated that the 5 years already spent by Hicks at Guantanamo Bay could not be subtracted from any sentence handed down, that Hicks must not speak to the media for one year nor take legal action against the United States, and that Hicks withdraw allegations that the U.S. military abused him. Accordingly, in the first ever conviction by the Guantanamo military tribunal and the first conviction in a U.S. war crimes trial since World War II, on 31 March, the tribunal handed down a seven year jail sentence for the charge, suspending all but 9 months.

Australian and US critics speculated that the one-year media ban was a condition requested by the Australian government and granted as a political favour. Senator Bob Brown of the Australian Greens said, "America's guarantee of free speech under its constitution would have rendered such a gag illegal in the U.S.". The Australian government denied that the media ban had anything to do with itself or the nearing 2007 Australian federal election, with Australian Prime Minister John Howard saying "We did not 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, although Hicks would be prevented from selling his story.

The Law Council of Australia reported that the trial was "a contrived affair played out for the benefit of the media and the public", "designed to lay a veneer of due process over a political and pragmatic bargain", serving to corrode the rule of law. They referred to government support for the military tribunal process as shameful.

The length of the sentence caused an "outcry" in 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. Chief prosecutor Colonel Davis was unaware of the plea deal and surprised at the nine-month sentence, telling The Washington Post "I wasn't considering anything that didn't have two digits," meaning a sentence of at least 10 years.

Ben Wizner of the American Civil Liberties Union described the case as "an unwitting symbol of our shameful abandonment of the rule of law".

Allegations of political manipulation

Colonel Davis resigned from the US defence force on 5 October 2007 citing dissatisfaction with the Guantanamo military commission process and that it had become highly politicised. Davis said he felt "pressured to do something less than full, fair and open" and that "as things stand right now, I think it's a disgrace to call it a military commission - it's a political commission". Later that month, allegations by an unnamed US military officer were reported that a high-level political agreement had occurred in the Hicks case. The officer said that "one of our staffers was present when Vice-President Cheney interfered directly to get Hicks's plea bargain deal. He did it apparently, as part of a deal cut with Howard". Australian Prime Minister John Howard denied any involvement in Hicks's plea bargain.

Repatriation

On 20 May 2007 Hicks arrived at RAAF Base Edinburgh in Adelaide, South Australia on a chartered flight reported to have cost the Australian government over $ 500,000. Attorney-General Philip Ruddock asserted that this arrangement was the consequence of US restrictions on the transit of Hicks through US airspace or territory preventing the use of less expensive commercial flights.

Hicks was taken to Adelaide's Yatala Labour Prison where he was kept in solitary confinement in the state's highest-security ward, G Division. He was released on 29 December 2007.

See also

• Terrorism in Australia
• Combatant Status Review Tribunal
• Guantanamo military commission
• John Walker Lindh
• List of converts to Islam
• Islamic terrorism

External links

Court documents

• Hague Justice Portal: David Hicks case

Research publications

• Sales, Leigh. Detainee 002: the Case of David Hicks. Melbourne University Press (May 2007). Based on more than five years of reporting and dozens of interviews with insiders and looks at the intricacies of Hicks's case, from his capture in Afghanistan, to life in Guantanamo Bay, to the behind-the-scene establishment and workings of the military commissions.

US military

• Charge Sheets (.pdf)
• Commissions Transcripts, Exhibits, and Allied Papers
• Presiding Officer Orders
• Commission Scheduling

Media

• The Trials of David Hicks (multimedia), The Age.
• The President Versus David Hicks. A documentary about the "Australian Taliban", David Hicks. The film follows the struggles of David's father. Released in 2004.