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Hicks gag affects our liberties

Long hair gone ... courtroom drawing of David Hicks (left) with his defence council in the US military courtroom in Guantanamo Bay prior to his sentencing. Photo: AFP
By David Flint - posted Tuesday, 10 April 2007 Sign Up for free e-mail updates!

As late as last month, David Hicks's lawyers were still trying to delay his trial in the vain hope that the US Supreme Court would reject the new military commission process.

Had a stay been granted, you can be sure the US and Australian governments would have been blamed for the subsequent delay.

But the chances of this were always slim. The new commissions comply to the letter with the concerns of the Supreme Court. If the court were to agree to hear a new challenge, the majority would have been reinforced by the new Chief Justice. (In a lower court he had upheld the earlier military commissions.) In any event, the same federal judge who granted Hicks a stay in 2005, Colleen Kollar-Kotelly, rejected this application.

For Hicks, this was the last throw of the dice. He did what he probably should have done three years ago: he instructed his lawyer to negotiate a plea bargain. This had always been in Hicks's best interests.

Rather than abandoning him, the Australian Government not only bankrolled his defence, it extracted two crucial concessions: no death penalty, and any sentence to be served in Australia. The latter was risky, as once here he might challenge his imprisonment before an Australian court. The brief sentence agreed removes any incentive to do this.

Hicks has now earned the eternal enmity of the terrorist movement he once served. He has also pulled the rug from under the burgeoning Bring David Hicks Home industry. Having painted Hicks as the innocent wanderer, shackled in his cell, underfed and tortured, kept in a concentration camp in conditions reminiscent of the Nazi regime, the reality has exposed the hyperbole. He can no longer be used as a weapon in the Australian political debate, nor in the wider struggle to change Australian society, through, for example, a bill of rights regime.

Hicks has been rewarded with a sentence that is egregiously lenient. Admittedly, he pleaded not guilty to providing material support or resources for an act of terrorism. But he now says he intentionally provided material support to al-Qaida and was associated with an armed conflict. He had to satisfy the commission that his plea was genuine and not done, as the Hicks industry claims, just to get home. Hicks, of course, would have known the US had sufficient evidence to prove this, and probably more.

It is not that long ago a wartime conviction for a lesser offence could have resulted in the maximum punishment. So he has done very well. He was lucky that when he was captured, he was thought to be more valuable alive than dead. Then he was lucky to have ended up in American hands: who else would have given him a Major Michael Mori?

There is one aspect of the plea bargain, and one only, that is on principle wrong. But as there is no political mileage in it, will the Hicks industry argue it with the same passion it would have had he gone on to fight the case he was doomed to lose? What is intrinsically wrong is gagging a man who has served his sentence, however inappropriately short that may seem.

Apart from this, there is little that Hicks can legitimately complain about in relation to his detention. Critics of the US lack a historical and comparative perspective, and see far too much through the prism of the Australian criminal justice system. The Americans would have been perfectly entitled to hold Hicks for the duration of hostilities, even if he had been a regular soldier. This has happened to many Australians in living memory, but unlike Hicks they too often fell into the hands of barbarians. Just look at the photographs of the survivors of the Japanese death camps, and compare them with Hicks.

While the military commissions have to be fair and conform to international standards, they do not have to be a mirror image of an Australian criminal trial with all its imponderable technicalities, its almost impenetrable rules on the admissibility of evidence and its many indulgences towards the accused.

Whether it is necessary to go as far as we do at home is a matter of increasing community debate. But this is neither the standard to be followed in war, nor is it the standard followed in other democratic countries. Indeed this may have been a consideration in allowing Willie Brigitte to be tried in France about a terrorist attack he had planned to take place here.

Nor has Hicks been charged with an offence that did not exist when he committed it. The US legislation specifically states that it does not establish new offences but merely codifies existing ones. The US is one country that, more than most, operates under a strict rule of law: if the offence is novel, as the Hicks industry claims, it is an open invitation to a vast army of lawyers ready to have the case thrown out by an ever-vigilant appeals court.

It is not the detention nor the process that is wrong, it is the gag. It is not so much that the gag will serve little purpose and could easily be circumvented. It is that it offends the basic right to freedom of speech that all free men should enjoy.

This is not there just for Hicks's benefit, indeed it is to be hoped that any profit he or his family glean from his crime is allocated first to repaying the taxpayers of this country for the vast sums spent not only on his defence, but also the visits by consular officials and relatives and the funding of an SBS film apparently advancing his cause.

Hicks's freedom to speak is also our freedom to hear. We may learn something of vital public interest. We may also learn a lot of rubbish. But in seeing him, in hearing him, and in reading him, we, and not just the government, Australian or American, will be able to make the judgment we are entitled to make as free citizens as to whether he is still a danger, whether he is genuinely contrite, and whether he was fairly detained.

In any democratic country, freedom of speech is the cornerstone on which other freedoms are based. To the extent that Hicks, when free, is denied that freedom, our freedom too is diminished.

  • David Hicks Case Information

  • Let people decide
    ARE words considered the new weapons of mass destruction?
    Jill Singer - April 09, 2007

    ARE words considered the new weapons of mass destruction?

    Given the widespread control over what people are and are not allowed to say, you could be excused for thinking so.

    Consider the gag order placed on David Hicks.

    The First Amendment to the United States Constitution is meant to protect the rights of individuals to speak freely.

    For many years that is precisely what it has done, most notably in 1969 when the US Supreme Court upheld the right of individuals to speak freely of revolution.

    Yet, here we have a man forced to not speak with the media for a year as part of his pleading guilty to providing material support for terrorism.

    What are the authorities so afraid of Hicks saying?

    If they have nothing to hide about his treatment at their hands, there should be no need to gag him.

    It is not as though they believe him to be a pathological liar. Anything Hicks has said to incriminate himself has been accepted as the gospel truth.

    As has everything he has said to exonerate his treatment at the hands of the US authorities.

    When asked by the military tribunal if he had been treated illegally, he answered, "No".

    While Hicks is far from being a legal expert, his answer is being treated as priceless evidence by PM John Howard.

    Howard declared on ABC television that David Hicks says he hasn't been treated illegally, therefore he hasn't.

    Meanwhile, in Iran we saw 15 British sailors and Marines held hostage and videotaped confessing to trespassing into Iranian waters.

    The dubious confessions were sufficient to convince some Iranian hotheads, who reacted by protesting in London against the British Government.

    Can we be all that surprised at their gullibility, when our own Government is unconcerned about Hicks saying he has been treated legally by the US?

    Whatever David Hicks has or has not done in the past, Australia and the United States are hardly setting the best example for rejecting blatant political propaganda.

    To his credit, Attorney-General Philip Ruddock has made public his view that the US gag on Hicks would probably be unenforceable outside the US.

    He points out that there is no law preventing Hicks from speaking to the media in Australia.

    Ruddock's sanguine approach to the ban could possibly be explained by his knowledge that it is a moot point.

    Hicks will not be out of jail and free to speak with the media until after the federal election.

    Certainly, the Government is determined to control who is allowed to speak out and about what.

    On top of its resurrection of antique sedition laws, we now have the ban on Sheik Bilal Philips, preventing him from attending a conference on Islamic values at the University of Melbourne.

    Dr Philips is a Canadian citizen who lives in Qatar.

    The sheik is apparently considered a threat to our security because of what he might say. He advocates public beheadings and that girls be considered of marriageable age as soon as they reach puberty.

    The US has also reportedly named him as a co-conspirator in the 1993 World Trade Centre bombing. He was deported from the US in 2004 without being charged for the crime.

    Yes, he is a man whose words and values are at odds with those of most sane Australians, but are we really so fragile and suggestible that we cannot be trusted to hear them, consider them and reject them?

    This nervousness about free speech has infected both sides of politics with the Victorian Government's racial vilification laws being a case in point.

    We would do well to remember the late Lionel Murphy, who reminded us that many great political and religious leaders throughout history were renowned as being agitators.

    While I am of the view that the likes of David Hicks and Sheik Bilal Philips will never make great leaders, we should not glorify them by pretending their ideas and words have the potential to inspire others.

    Let them speak and let them be damned by their own words if they speak dangerous rubbish.

    Remember also that Nelson Mandela was once considered a dangerous terrorist, jailed and prevented from speaking in public.

    It is in the interests of us all to support the rights of those who choose to speak against the status quo.

    Isn't this the ideal of democratic freedom our troops are fighting for in Iraq?

    Gag order on Guantanamo detainee serves no purpose
    Tribune Editorial

    The first and so far only Guantanamo detainee to be tried and convicted by President Bush’s military tribunal will shortly be on his way to Australia to serve out his sentence.

    David Hicks, 31, has already spent over five years in the isolated prison and, clearly desperate to get out, plea-bargained to a single charge of supporting a terrorist organization. He was sentenced to seven years, with all but nine months suspended, and that to be served in a prison in his hometown of Adelaide.

    Hicks, whose background suggests a ne’er-do-well flitting from cause to cause, got caught up in some bad stuff — he allegedly trained with al Qaeda in Afghanistan, but was captured before he could do anything. However, he hardly seems the “worst of the worst.”

    Earlier, he said that he was beaten while in U.S. custody, and his father still insists that his son was sexually abused and subjected to mental and physical torture, allegations that the elder Hicks says he will pursue.

    But David Hicks, as part of his plea bargain, signed an affidavit stating that he had never been “illegally treated” by the United States.

    So what did go on during those five years Hicks was in captivity? We, the U.S. public, won’t know, at least for quite a while. As part of the plea bargain, he agreed to a gag order barring him from speaking to the media for a year, including the three months after his scheduled release next New Year’s Eve.

    You really have to wonder why the government of the United States, where the right to speak freely is enshrined in the Constitution, is in the business of gagging people.

    Legally, Hicks could be forced to serve his entire sentence, either in Australia or on extradition back to the United States, if he breaks the terms of his plea agreement.

    But Australia’s attorney general says Australia has no interest in enforcing the gag order, or in extending his sentence beyond the agreed-upon nine months, or in extraditing him.

    The tribunal should drop the gag order as unworthy of the United States. America might be very much interested in what he has to say, but, then again, maybe that’s the problem.

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