Why David Hicks must win

No, this is not about winning a literary competition; this paper has nothing to say about that controversy - it has to do with something far more serious, and sufficiently important to unite conservative and liberal politics as Chris Berg, research fellow with the Institute of Public Affairs, has recently argued. If we value free speech on political issues then Hicks must win his fight to retain the earnings from publication of his book.

The legislation which gives the Commonwealth Director of Public Prosecutions power to take away this income rests in theory on two general principles, quite apart from its political appeal to those convinced Hicks was a terrorist who got pretty much all - with the possible exception of torture - he deserved.

The first principle is the need to deter crime by ensuring an offender cannot simply wait out the sentence or, in a business crime, endure the public shame, and still enjoy the riches. The second is a broad principle of retributive fairness - also a well-settled principle of the common law - that no one should profit from his own wrong.

It is bizarre to suggest that Hicks, who trained for and was ready to risk his life fighting in Kosovo (along with NATO forces) for no financial reward - whatever we think of his motives or maturity or racial prejudices or state of mind - would be deterred by the risk of losing earnings on a book published years later to defend himself against terrorism charges; deterrence is simply not an issue.

The principle of fairness has a qualified role because, like all legal and moral principles, it has a dimension of weight - it must be weighed against other principles which are also important in a legal system or moral practice Accordingly, while it is clear in law that a murderer cannot benefit under his victim's will, it is also clear that a lottery cannot refuse to pay if the ticket is bought by someone who drove an unregistered car to the store, or earned their income from prostitution; the legal principle of fairness, which lawyers call pacta sunt servanda, is more important.

Even when governments think it is wrong for someone to profit from crime, they must make prudential judgments in using public resources to pursue this retributive aim. Although Chopper Read was not pursued for the income from his literary efforts public morale, and a sense of civic responsibility, may be affected if drug lords and white collar criminals are seen to maintain sumptuous life styles.

Confiscation of assets makes sense in reinforcing deterrence; it also helps defray the costs of fighting conspiratorial crime. None of this is relevant, however, if it cannot be shown that Hicks' actions also constituted a crime in Australian law.

Returning to the big picture, it is obvious that the argument over Hicks' conduct and treatment, and whether his plea was gained by duress, continues because the facts are still being clarified. But we now know from the authoritative Denbeaux Study on Guantanamo by US Law Professor Mark Denbeaux of Seton Hall Law School, based on US Government files obtained under disclosure laws, that detainees known to be innocent were threatened with permanent incarceration if they did not 'confess'.

We know that Afghan citizens were detained as terrorists if found to be wearing olive drab clothing or a Casio watch. We know that 92% had never fought for al Quaeda and that only 5% were captured by US troops - the rest were purchased from Pakistani and Northern Alliance forces for amounts up to US$5000. Given the Alliance had just lost a savage civil war against the Taliban, and the local value of US currency, their motives and claims were always dubious.

So much so that after nine years, of the more than 770 detainees in Guantanamo, only a handful have been tried and convicted; over 700 have had to be quietly repatriated without charge, after years of imprisonment and 'harsh techniques' of interrogation. What this means is detailed in the Nov. 2008 report by the US Senate Committee on Armed Services; it means the use of methods

'based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping … of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy's SERE school, it included waterboarding.'

This is typical of the evidence, gained under FOI laws, which has seen the Law Council of Australia take a close interest in Hicks' case and play a prominent role in bringing his plight to public attention. Throughout his detention the Council has been highly critical of his inability to effectively challenge its legality and his treatment in detention, as well as the flawed and unjust rules of procedure and evidence contrived for the military commission.