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What a to do about David Hicks

By Neil James - posted Thursday, 8 March 2007

A comprehensive discussion of the whole complex legal situation surrounding David Hicks may be found here. The comment below covers only the law affecting his release from detention as a captured belligerent (and was originally published as an article in the Summer 2006/07 issue of the ADA’s quarterly national journal Defender).

The subject of David Hicks has reached the stage where the furore over his potential trial by a US military commission is preventing effective discussion on all the other ramifications of his situation. The letters to the editor and opinion columns of our broadsheet newspapers are regularly supplied with fulminating opinions on the various real, purported and misunderstood flaws of the military commission process and the rules of evidence applying.

Talkback radio and the “blogosphere” are even worse. The volume and vituperation is perhaps matched only by the astounding levels of ignorance as to the facts, the probable facts and the international law actually applying, and by the emotion that is invested regardless of the level of knowledge or understanding held.


Dealing a US trial off the cards

So let’s get one thing straight at the outset so we can get to the real point concerned - what to do about David Hicks?

Whatever the rights and wrongs of the matter, because of the constant delays, bungling and a breathtakingly bad record in explaining their position, the US authorities have effectively forfeited the option of trying Hicks by a military commission and probably even by a standard court martial or civil criminal trial. Even if the trial proceeds, the likelihood is that Hicks will be acquitted or, if found guilty, receive a prison sentence with a non-parole period no longer than the duration of his detention thus far.

So if we can all agree that the US (or anyone else) trying David Hicks for criminal offences or war crimes is probably no longer an option, we can then properly concentrate on what to do next without unnecessary distractions (such as those who insist on discussing the Hicks matter using concepts based only in peacetime civil domestic law).

Extremes and fallacies

The immediate assumption by many is that withdrawal of the trial option means that Hicks could and should be freed forthwith. This belief, an unmistakably mistaken one, has seized popular hold because of the widespread and mainly justified outrage concerning the flaws of his potential trial.

But even allowing for the passion, confusion and widespread ignorance of the facts, David Hicks generates highly polarised views. To some, Hicks is a bigoted, anti-Semitic traitor who trained and fought with terrorist organisations in their continuing war with the international community and he can therefore rot in prison indefinitely.

On the opposite extreme are those who simply regard Hicks as a harmless naïf who, at worst, was forced into nominally defending a Taliban tank one autumnal afternoon, and who has been somehow wrongly “imprisoned without charge” or “incarcerated” for years as a result.


These are both extreme opinions which disregard legal and moral principle and ignore or downplay important facts. That many appear to hold either opinion does not make them any less extreme or result in their logic being less tenuous.

They are also extreme opinions because they risk widespread damage to the universality of international humanitarian law. What makes these extreme opinions doubly dangerous is that many, perhaps most, of those holding them would sincerely baulk at the classification of their position as extreme.

These extremes have other things in common too. One false assumption particularly shared is that David Hicks is simply imprisoned - justly if you presume he is a traitor or unjustly if you assume this is merely some form of criminal matter.

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First published in Defender in the Summer 2006/07 issue.

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About the Author

Neil James is the executive director of the Australia Defence Association, an independent, non-partisan public interest guardian organisation on national security issues.

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