David Hicks: New Charges — Same Old Problems

On 3 February 2007, the United States brought new draft charges against David Hicks for his alleged involvement in terrorist activities. The charges are still draft because they have still to be ‘approved’ by the authority overseeing the Military Commission established to prosecute him.

The problem with these new charges is that, whether or not they are approved, they do little to suggest that he will receive a fair trial. This is because the new charges and the new Military Commission created to prosecute Hicks and other Guant á namo Bay detainees suffer from the same legal deficiencies that the US Supreme Court identified in the original Military Commission process.

The US Government was compelled to bring new charges against Hicks under a new Military Commission in the wake of the US Supreme Court’s decision in the case of Hamdan v Rumsfeld. In that case, the Supreme Court held that the regime for detention and prosecution of Guantánamo Bay detainees was unlawful. Among other things, the Court held that Guantánamo Bay detainees are protected persons under the Geneva Conventions of 1949, and that the US Government had failed to afford Salim Ahmed Hamdan, a Guantánamo Bay inmate, a fair trial as it is obliged to under Article 3(1)(d) of the Geneva Conventions.

The Hamdan decision was no work of radical jurisprudence. Indeed, the Supreme Court did not even address all of the deficiencies of the first Military Commission with respect to the Geneva Conventions. The decision, nevertheless, caught the Bush Administration off guard. Despite the presence of six Republican appointees to the Supreme Court bench, three of whom did not support the majority decision, it was difficult to avoid the abject unlawfulness of the detention regime at Guantánamo Bay, even if one were limited to an analysis of the applicable Geneva Conventions.

Bizarrely, the Bush Administration’s response was to reconstitute the Military Commission under the authority of legislation passed by Congress rather than Presidential Order as had originally been the case. Apart from this, the Military Commission process remained effectively the same as it had been before the Hamdan decision.

The Geneva Conventions provide broad but sensible protections to persons — either enemy combatants captured during hostilities or civilians — to ensure that they are treated in a fair and humane manner. Significantly, the Conventions do not prohibit the sentencing of captured enemy combatants or even the administration of penalties for crimes committed during a period of conflict. It is important to note this because, hitherto, David Hicks has not been lawfully charged with any offences, let alone found guilty of any offence.

It is not at issue whether the US has legal capacity under domestic and international law to capture and prosecute enemy combatants. What is at issue is that Hicks has been detained since December 2001 without being lawfully charged or sentenced, and that he has made numerous serious allegations of torture throughout his detention. There is nothing in the new charges which mitigates this situation.

The new charges are a slightly more detailed reproduction of the original charges brought against Hicks in 2004. In short, it is now alleged in more detail that Hicks willfully participated in al-Qaeda and Taliban actions against the US in Afghanistan and abroad. It is now alleged that:

• surveillance training Hicks received from Lashkar-e-Toiba , a group based in Pakistan considered a terrorist organisation by the United States and Australia, contributed to the October 2000 terrorist attack on the USS Cole in Yemen;
• Hicks willfully engaged and sought to engage US and Northern Alliance troops with the Taliban and al-Qaeda, even after it was clear that it was a losing battle;
• Hicks trained other militants on how to fight the US and Northern Alliance in Afghanistan; and
• Hicks saw footage of the 11 September 2001 terrorist attacks on the United States and said that this was a good thing.

It is also alleged that Hicks participated in terrorist activities with a range of known ‘associates of al-Qaeda’ including John Walker Lindh, the ‘American Taliban’ who was brought before a US civilian court and is currently serving a 20-year jail sentence, and Richard Reid, who was arrested in the US after attempting to set off a shoe bomb on a passenger airplane.

Slightly more detailed allegations are provided on Hicks’s whereabouts during the US and Northern Alliance campaign against the Taliban. The new charges omit the earlier allegation that Hicks translated al-Qaeda operations manuals from Arabic to English. This is significant because it suggests that there was little or no evidence to substantiate that original claim.

A general concern with the charge sheet is that it is vague, and yet seeks to link Hicks to events, such as the attack on the USS Cole, and personalities, such as Lindh and Reid, that have entered the popular canon of terrorism. The irony is that even if the charges are vague and disjointed from a legal standpoint, they are likely to resonate with the public sentiment that Hicks was part of a global terrorist network — regardless of the outcome of the proceedings.

I believe both the US and Australian Governments are relying on such a public sentiment to drown out criticism of the proceedings on the grounds of fairness and justice.

Another concern is the extent to which the evidence which will be tendered against Hicks was obtained under torture or plea bargaining. For example, were other inmates offered a reduced sentence in return for ‘evidence’ linking Hicks to al-Qaeda activities in Afghanistan? Such scenarios are purely speculative but far from implausible.

The Australian Government has welcomed the new charges on account of its stated policy that Hicks must be brought to trial for his alleged involvement with terrorist organisations. Although the Government has slowly started to increase the urgency of its calls for Hicks’s return to Australia, it has refrained from making any legal criticisms of the Military Commission process, such as those outlined by the US Supreme Court in the Hamdan case.

In fact, from the very outset, the Australian Government has been supportive of the US’s treatment of Hick. Prime Minister Howard has even acknowledged that he could secure Hicks’s transfer to Australia if he so wished. Howard claims that he has not done so because he wants Hicks to face trial, something which is impossible in Australia because Hicks has not committed any offences under Australian law.

There is a real possibility that Hicks is an innocent man whose only crime was being at the wrong place at the wrong time. If David Hicks is returned to Australia without a conviction of some sort, the US would effectively be admitting that it had no good reason for detaining him in the first place. But even if Hicks is not found guilty of any crimes, it is likely that some sort of restraining order will be placed on him in Australia.

Either way, it is unlikely that Hicks will lead a normal life.

This piece originally appeared in New Matilda.