David Hicks to Serve Nine Months for Terror

Guantanamo Bay inmate David Hicks was sentenced on Friday to seven years’ prison for supporting a terrorist organization, yet he will serve only nine months of his sentence according to a plea deal struck with his US prosecutors. He will also be returned to Australia no later than May 29 to serve the remainder of his sentence, and could be free by the end of the year.

Meanwhile, legal challenges could overturn Mr Hicks’ conviction, resulting either in his even earlier release or his further detention and retrial at Guantanamo Bay.

Many legal and political analysts believe the relatively lenient sentence the military commission handed down to Mr Hicks – who faced life imprisonment prior to his plea negotiations – was intended to ease tensions between the US and the Australian government, who had lost patience with the delays in the trial process.

Mr Hicks’ incarceration without charge for five years has become a major electoral liability for Australian Prime Minister John Howard, who heads into a federal election at the end of 2007. His government is under fire for being silent on claims that Mr Hicks was denied a fair trial and physically abused at Guantanamo Bay.

Under the terms of his plea agreement, Mr Hicks is banned from speaking to the media for a year, selling his story or taking legal action against the US. He has also withdrawn all previous statements that he was physically abused by the US military.

In a confession statement read aloud by commission judge Colonel Ralph Kohlmann, Mr Hicks said he traveled to Afghanistan in January 2001 to attend an al Qaeda training camp where he learned to use weapons, land mines and explosives. In April 2001, he attended a second course in guerilla warfare and mountain fighting. During this time, he met Osama bin Laden to whom he complained that there were no English-language training manuals. In June 2001, he took a third course on urban warfare, which included sniper training, kidnapping and assassination. He also conducted surveillance of the former US embassy in Kabul.

Mr Hicks’ confession also stated that he traveled to Pakistan on September 9, 2001 and two days later saw the televised attacks on the World Trade Centre in New York – of which he denied having any prior knowledge. The following day, he returned to Afghanistan. When the US started bombing Afghanistan on October 7, Mr Hicks fought alongside the Taliban and al Qaeda. One week later, he sold his gun for cab fare as he tried to flee to Pakistan. At that point, he said he was captured.

As Mr Hicks’ confession and conviction make headlines around the world, the legitimacy of the US military commissions has been questioned in most reports.

On Thursday, US Secretary of Defense Robert Gates said in his testimony to Congress that he had tried to persuade President Bush to close down Guantanamo Bay prison camp and have the trials moved from Cuba to the US, because “I felt that no matter how transparent, no matter how open the trials, if they took place at Guantanamo, in the international community they would lack credibility.”

Nevertheless, the Bush administration and the Howard government have hailed Mr Hicks’ conviction as a victory in the war on terror and a vindication of the US military tribunals. Mr Howard told reporters in Sydney, “Whatever may be the rhetorical responses of some and particularly the government’s critics, the facts speak for themselves. He pleaded guilty to knowingly assisting a terrorist organization, namely al Qaeda. He’s not a hero in my eyes and he ought not to be a hero in the eyes of any people in the Australian community. The bottom line will always be that he pleaded guilty to knowingly assisting a terrorist organization.”

However, Professor of Law George Williams of the University of New South Wales wrote in the Sydney Morning Herald that, because Mr Hicks was denied his usual rights within the legal systems of both the US and Australia, challenges in both countries’ major justice venues could produce very different outcomes.

One current challenge proceeding to the US Supreme Court may result in the military commissions being declared illegal and Mr Hicks’ conviction being overturned. If that happened while Mr Hicks were still in US custody, he would need to be retried. Yet if he had already been transferred to an Australian prison, he could either be returned to Guantanamo Bay for retrial or released early into the Australian community.

The High Court of Australia could also overturn Mr Hicks’ conviction on a number of grounds. Firstly, Australians can only be imprisoned by a court order and as such the military commissions do not qualify. Secondly, Mr Hicks pleaded guilty to an offence that is not a war crime under the Geneva Conventions and is retrospective, because it did not exist at the time of his arrest in 2001. Thirdly, the trial process could be deemed unfair due to the admissibility of hearsay statements and evidence obtained by coercion. Finally, a number of statements on the public record appear to indicate that US military officials pre-judged the guilt of Guantanamo detainees.

Once repatriated, if Mr Hicks’ conviction were overturned by an Australian court for any of the above reasons, he would most likely be freed immediately.


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