It is a strange moment when you begin to feel compassion for someone whom you otherwise consider to be a moral monster. We ordinarily prefer our moral decision-making to be a fairly easy and straightforward process, yet such moments make this impossible. This is certainly the case when it comes to considering the now-exonerated, former Guantanamo Bay prisoner, David Hicks. The nature of his incarceration, the plea-deal he signed, the artificial legal case against him, all demand from us a semblance of sympathy – sympathy, that his support for terrorism makes unbearable.
From the outset, David Hicks was a prisoner, never a criminal. The extraordinary nature of his imprisonment seemed to entirely overshadow the evidence against him.
In large part, this was due to the ambiguity of the legal case against him. Despite the United States government struggling to establish a credible legal basis for its military tribunals, Hicks still found himself legally defined as an ‘enemy combatant’ and charged with the blanket offences of ‘conspiracy to attack civilians, aiding the enemy and attempted murder’. Charged as a criminal, yet without any foreseeable chance of a legal process, Hicks languished for five years in an administrative limbo.
As international pressure mounted, so did the desperation to secure convictions. In order to facilitate this, Congress passed the ‘Military Commissions Act’ in 2006, legislation that included the retroactive charge of ‘providing material support for terrorism’. The charges for which Hicks had been held without trial since 2001 were now dropped, and Hicks was convicted under this new provision in March 2007.
Worse still was Hicks’ treatment whilst in custody: Originally captured in Afghanistan by the Northern Alliance in December 2001, Hicks was sold to the United States for a reported fee of between $1,000-5,000US. Despite this type of prisoner-transaction being commonplace at the time, it is certainly less than desirable when we are then being asked to believe the testimony of the capturing soldiers – soldiers who have effectively been paid to give evidence.
Regardless, David Hicks was quickly transferred to the now infamous Guantanamo Bay Naval Base, where he claims to have been “subjected to five-and-a-half years of physical and psychological torture” - torture that included beatings, forced medication, sleep deprivation, and sexual assault.
The truth behind these claims of physical torture is questionable, especially considering that Hicks has himself admitted to cooperating immediately and completely with his captors. There is however no such doubt concerning his claims of psychological torture. To be held for five years in the type of conditions that are present at Guantanamo Bay certainly constitutes an immense psychological maltreatment.
Under these circumstances, the agreement that led to Hicks’ eventual guilty plea, was equivalent to signing a contract with a gun to your head. Hicks was offered a plea-deal whereby all but nine months of his sentence was back-dated to include time already spent in custody – and importantly, he would be repatriated to Australia in order to serve these remaining nine months under ordinary prison conditions. The alternative? Remain in a legal uncertainty at Guantanamo Bay, without the promise of a court date. Such a deal is so weighted towards securing a conviction, that it effectively removes any consideration of guilt, or lack thereof, from the equation - no person still interested in their own wellbeing could reasonably deny such an offer.
Now, after all this, David Hicks has had the conviction overturned by the ‘United States Court of Military Commission Review’.
After suffering such an immense legal injustice, David Hicks certainly deserves our sympathy. But only because all criminals, regardless of their crimes (terrorists included), ought to have access to a fair and open legal process. However, by any moral standard, it is also an injustice that Hicks is today a free man – he has not paid dearly enough for the crimes he committed.
Firstly, it is important to note that David Hicks was not exonerated due to the evidence against him not stacking-up on review. He was exonerated because the crime for which he was convicted simply did not exist at the time that he was committing it. Neither Australian, American, nor International Law had yet caught up with the reality of a new terrorist age. By ‘providing material support for terrorism’, Hicks was essentially ahead of his time – a criminal trend-setter. A technical defence explained by his Australian Lawyer, Stephen Kenny: "What he was doing there was not at that time illegal".
So just what was he doing?