David Hicks and the death of a legal system

In the annals of obscene legal history, that of David Hicks, whose terrorism conviction was just quashed by the United States Court of Military Commission Review, must rank highly. It is also instructive on various levels: what is says about his treatment by the US legal system; and what it reveals about the attitudes of the Australian government.

Australians tend to demonise or sanctify their legal villains, casting a social net around them that either protects, or asphyxiates them. If one is an Irish scribbling horse thief with murderous tendencies and eccentric battle dress sense, then one is bound to get a spot in the hero's pantheon. The book collecting, education promoting judge who sentenced him to death receives the opposite treatment: snubbed by the juggernaut of historical folklore.

Hicks, from the start, was not quite that horse thief, Ned Kelly. But he did engage in the mischief that would earn him demerit points after September 11, 2001. He travelled to Pakistan. He spent time at al Qaeda training camps in Afghanistan. He drank of that radicalisation soup that has gotten Europe, Australasia and the United States worried.

In the scheme of grand power politics, he found himself involved with an organisation that did not always have the official designation of terrorism – after all, elements of al Qaeda, and their hosts, the Taliban, had been recipients of US-funding during and in the aftermath of the Cold War. The Taliban's opponents, the Northern Alliance, captured Hicks, and surrendered him to the US in late 2001.

In confinement within the Guantánamo camp system, subject to around the clock artificial light, inedible food, forced drugging, beatings and a range of other indignities, Hicks received the brunt of juridical inventiveness. The US Military Commissions, designed to specifically target non-US citizens, was born. Being neither courts-martial nor civilian courts, they amputated due process and merged the role of jury and judge. The rule on hearsay was thrown out. The commissions restricted the accused's right to hear all the evidence. Appeals to any other court, foreign or US, would be cut. And the death penalty might well be applied.

In 2006, the US Supreme Court in Hamdan v Rumsfeld held that the Bush administration did not have the power to create such commissions without Congressional authorisation, a feature that ran foul of such instruments as the Geneva Conventions. Not to be deterred, the then Australian Prime Minister, John Howard kept insisting that "I do not want [Hicks] to come back to Australia without first facing trial in the United States." Let the Americans do it, "because if he comes back to Australia he can't be tried". Hicks, in other words, was already guilty in the minds of Australia's top officials. "Of what?" posed his military defense lawyer Michael Mori. "Howard didn't know. How should he be tried? Howard did not know."

Hicks became the first, and most dubious scalp, of the reconstituted commission system. Much of the account of his defence is discussed by Mori, a freshly recruited defence lawyer who was rapidly blooded in the byzantine legal labyrinth being constructed around his client. His account, discussed in In the Company of Cowards (2014) reflects, not merely on Hicks defence, but the atrophying of a legal system.

Two vital issues came up in Hicks's attempt to seek his ultimately successful appeal. The first central legal disfigurement here lay in the pre-trial machinations that placed Hicks on the road to conceding guilt for a lesser sentence. In accepting this "Alford plea", the hope was to insulate the entire treatment of his plight, and by implication those in similar cases, from further legal scrutiny.

On March 30, 2007, Hicks pleaded guilty to the dubious charge of providing material support "from in or about December 2000 through in or about December 2001,… to an international terrorist organisation engaged in hostilities against the United States, namely al Qaeda, which the accused knew to be such an organization that engaged, or engages in terrorism". The rather inventive, and retrospective charges, had been brought in February 2007, with the attempted murder charge subsequently dropped.

He was then sentenced to confinement for seven years, with the question on what would count to time already served. (The latter point is important: the prosecutors were reluctant to budge on the issue, but conceded to the balance of nine months.) On May 20, 2007, Hicks returned to Australia, serving time at Adelaide's Yatala prison, and was out by December.

What was significant in this case was that Hicks, his defense counsel and the convening authority had signed a pre-trial agreement indicating that the appellant had offered to plead guilty to the first charge provided he "voluntarily and expressly waive all rights to appeal or collaterally attack my conviction, sentence, or any other matter relating to this prosecution whether such a right to appeal or collateral attack arises under the Military Commission Act of 2006, or any other provision of the United States or Australian law."

Then comes a good deal of legal stumbling. The review commission, after accepting it had jurisdiction over the appeal, attacked the verdict in a very specific way. The first waiver was deemed to have been made knowingly, intelligently and voluntarily. Hicks's pre-trial agreement was deemed favourable. He was granted concessions. But failure to resubmit "his appellate waiver within 10 days after the convening authority provide notice of action invalidated his appellate waiver."