Hicks sees a new dawn

In the end it was David Hicks himself, and not the Australian or US governments, who ended the uncertainty.

By pleading guilty, Hicks will serve a fixed sentence with the knowledge that there is an end in sight. Had Hicks pleaded not guilty, he may still have been found guilty by the military commission.

He would also have risked a sentence of life imprisonment, the maximum penalty for providing material support for terrorism.

Instead, the prosecution and defence have agreed upon a sentence that will be presented to the commission today. The guilty plea means that Hicks should soon be able to return to Australia.

Last year, Australia and the United States agreed to permit prisoners such as Hicks, who have been sentenced by a US military commission, to serve their time in an Australian prison. Hicks' guilty plea could be cast as a victory by the Australian and United States Governments. They can now point to a successful prosecution in the military commission.

After five years, they have finally achieved their first conviction. But that this has been brought about by Hicks' plea, and not after a trial, is significant. It bypasses the many questions about the fairness of the process, such as the potential to use hearsay statements or evidence that was obtained by coercion.

However, it seems that not even Hicks can end the debate. People are already questioning the integrity of his plea. This week, Hicks' Australian lawyer, David McLeod, indicated that an option Hicks was considering was how to get out of Guantanamo Bay at the earliest opportunity.

It also says a lot that members of the Greens and National parties are singing from the same song sheet.

Greens party leader Bob Brown said yesterday that Hicks' guilty plea was simply a plea for release, for an exit from the inhumane Guantanamo gulag. Nationals senator Barnaby Joyce said the only thing that was guilty was the judicial process under which he was being tried.

The plea will also come under further sustained legal attack. It might even be overturned.

Hicks' conviction does not resolve the allegations of unfairness and unconstitutionality levelled at the military commission. Hicks and other Guantanamo Bay inmates have already foreshadowed a challenge to the commission in America's highest court, the Supreme Court.

While there are continuing doubts about the plea and legal challenges to the trial process, there can be no closure to the case. Even a guilty plea might be undone if the commissions are struck down.

This happened once before, in 2006, when the Supreme Court ruled the tribunals were illegal under United States law and the Geneva Conventions.

It could well happen again, and if Hicks has already been transferred to Australia, the result will be a legal mess.

The doubt cast over Hicks' plea undermines what in other circumstances would have been a triumph for the Bush Administration. It also brings into question larger issues about the strategies that are being used against terrorism.

Over the past five years, Guantanamo Bay and the detention of combatants such as Hicks has been an unwanted diversion. It has set back the fight against terrorism. Whatever the merits of detaining people like Hicks, the resulting furious debate has been counterproductive. It has tarnished the moral authority of nations such as the United States and Australia.

This self-inflicted wound has had a real impact on our ability to fight terrorism. Winning involves effective intelligence and policing work, and practical measures such as better security at our airports and ports. However, these are not enough. The confrontation between nations such as the US and groups such as al-Qaida must also be won at the level of ideas.

Western countries such as Australia must reject terrorism while retaining the high moral ground. If we do not, we risk motivating people to take up arms against us.

As Britain found with their bombings in July 2005, the actions of Western governments can isolate and ostracise members of their own community. This does not make those people right, but that is not the point.

We need to play smart by anticipating that failures of leadership, such as in places like the Guantanamo Bay and Abu Ghraib prisons, can turn people from assisting the authorities into becoming susceptible to terrorist recruitment.

This is what terrorists aim for. They cannot win by military might, and instead sow fear in the hope that governments will overreact. When governments do so, they weaken the ties that bind the community and undermine social cohesion.

With this stage of the Hicks saga coming to an end, we need some answers. How is that the US and Australia have turned someone who received terrorist training and enlisted with the Taliban into a popular hero? How did the straightforward prosecution of an enemy combatant turn into such a political and public relations disaster?