David Hicks

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David Hicks outside his family home in Salisbury Park, South Australia.

David Matthew Hicks (born 7 August 1975) is an Australian who undertook combat training in al Qaeda-linked camps and served with the ruling Taliban regime in Afghanistan in 2001. He was then detained by the United States Government in Guantanamo Bay until 2007 when he became the first to be tried and convicted under the U.S. Military Commissions Act of 2006. Hicks's treatment, the evidence tendered against him, his trial outcome, and the newly created legal system under which he was prosecuted, drew widespread criticism and political controversy.^[1][2]

In 1999, Hicks converted to Islam and took the name Muhammed Dawood. He was captured in Afghanistan in December 2001 by the Afghan Northern Alliance and sold for a $1,000 bounty to the U.S. military.^[3] He was transported to Guantanamo Bay where he was designated an enemy combatant,^[4] during which time he alleged he was tortured.^[5][6] Charges were first filed against Hicks in 2004 under a military commission system newly created by Presidential Order.^[7] Those proceedings failed in 2006 when the U.S. Supreme Court ruled, in Hamdan v. Rumsfeld, that the military commission system was unconstitutional. The military commission system was re-established by an Act of the United States Congress. Revised charges were filed against Hicks in February 2007 before a new commission under the new Act. The following month, in accordance with a pre-trial agreement struck with convening authority Judge Susan J. Crawford, Hicks pled guilty to a single newly codified charge of "providing material support for terrorism". Hicks's legal team attributed his acceptance of the plea bargain to his "desperation for release from Guantanamo".

In April 2007, Hicks was returned to Australia to serve the remaining nine months of a suspended seven-year sentence. The nine month period precluded media contact and drew criticism for delaying his release until after the 2007 Australian election. Former Pentagon chief prosecutor, Colonel Morris Davis later alleged political interference in the case, by the Bush administration in the U.S. and the Howard government in Australia,^[8] and said that Hicks should not have been prosecuted.^[2]

Hicks served his term in Adelaide's Yatala Labour Prison and was released under control order on 29 December 2007.

[edit] Early life

David Hicks was born in Adelaide, South Australia to Terry and Susan Hicks. His parents separated when he was ten years old, his father later remarrying. He has one sister.^[9]

Described by his father as "a typical boy who couldn't settle down" and by his former school principal as one of "the most troublesome kids", Hicks reportedly experimented with alcohol and drugs as a teen and was expelled from Smithfield Plains High school in 1990 at age 14.^[10] Before turning 15, Hicks was given dispensation by his father from attending school. His former partner has claimed that Hicks then turned to criminal activity, including vehicle theft, in order to feed himself, although no adult criminal record was ever recorded for this.^[11][12]

Hicks moved between various jobs, including skinning kangaroos at a meat-packing factory, fishing for sharks, and working at a series of outback cattle stations in the Northern Territory, Queensland, and South Australia. He met Jodie Sparrow, his de facto wife at a cattle station in Borroloola during 1992, where he worked as a rodeo rider and barman. He would study the qu'ran in his spare time.^[10] Borrolooa historian Val Andrews described Hicks as "a quiet fellow, into his religious study". Hicks and Sparrow had two children daughter Bonnie and son Terry before separating in 1996. He eventually lost contact with his two young children.^[12][11] After their separation, Hicks moved to Japan to become a horse trainer.^[12]

[edit] Religious and militant activities

David Hicks, on the left, posing with a Rocket-propelled grenade (RPG) on his first day of training with the KLA in Albania.^[13]

In 1999, Hicks travelled to Albania, joining the Kosovo Liberation Army (KLA), a militant organisation of ethnic Albanians fighting against Serbian forces in the Kosovo War, for two months.^[14] Upon return to Australia, Hicks applied to join the Australian Army but was rejected due to his low level of formal education.^[11] Hicks then converted to Islam,^[15] and began studying at a mosque in Gillies Plains, a suburb north of Adelaide. The president of the Islamic society of south Australia, Wali Hanifi, described Hicks as a good man that was interested and devoted in Islam. "after personal experience and research, that Islam was the answer".^[10]

He renounced his faith during the earlier years of his detention at Guantánamo.^[16] In June 2006, Moazzam Begg, a British man who had also been held at Guantanamo Bay but was released in 2005, claimed in his book Enemy Combatant: A British Muslim's Journey to Guantanamo and Back that Hicks had abandoned his Islamic beliefs, and had been denounced by a fellow inmate, Uthman al-Harbi, for his lack of observance.^[17] This has also been confirmed by his military lawyer, Major Michael Mori. However, he declined to say why Hicks was no longer a Muslim, saying it was a personal issue for David Hicks.^[18]

[edit] Lashkar-e-Toiba

On 11 November 1999, Hicks travelled to Pakistan to study Islam^[13][19] and began training with Lashkar-e-Toiba in early 2000^[20][21]

In the U.S. military commission charges presented in 2004, the U.S. accused Hicks of training at the Mosqua Aqsa camp in Pakistan, after which he "travelled to a border region between Pakistan-controlled Kashmir and Indian-controlled Kashmir, where he engaded in hostile action against Indian forces".^[22]

In a March 2000 letter to his family, Hicks wrote:

"don't ask what's happened, I can't be bothered explaining the outcome of these strange events has put me in Pakistan-Kashmir in a training camp. Three months training. After which it is my decision whether to cross the line of control into Indian occupied Kashmir."

In another letter on 10 August 2000, Hicks wrote from Kashmir claiming to have been a guest of Pakistan's army for two weeks at the front in the "controlled war" with India.

"I got to fire hundreds of bullets. Most Muslim countries impose hanging for civilians arming themselves for conflict. There are not many countries in the world where a tourist, according to his visa, can go to stay with the army and shoot across the border at its enemy, legally."^[23]

During this period, Hicks kept a notebook to document his training in weapon use, explosives and military tactics, in which he wrote that guerilla warfare involved "sacrifice for Allah". He took extensive notes on, and made sketches of, various weaponry mechanisms and attack strategies (including the Heckler & Koch submachine gun, the M-16 assault rifle, RPG-7 grenade launcher, anti-tank rockets and VIP security infiltration).^[24]

Letters to his family detailed his training;

"I learnt about weapons such as ballistic missiles, surface to surface and shoulder fired missiles, anti aircraft and anti-tank rockets, rapid fire heavy and light machine guns, pistols, AK47s, mines and explosives. After three months everybody leaves capable and war-ready being able to use all of these weapons capably and responsibly. I am now very well trained for jihad in weapons some serious like anti-aircraft missiles. "

^[25]

In January 2001, Hicks was provided with funding and an introduction letter from LET. He then travelled to Afghanistan to attend training at Al-Qaeda camps.^[22]

[edit] Afghanistan

Upon arrival in Afghanistan, Hicks went to an al-Qaeda guest house where he met Ibn al-Shaykh al-Libi, a high ranking al Qaeda member. He turned over his passport and indicated to them that he would use the alias "Muhammad Dawood".^[22]

Hicks allegedly "attended a number of al-Qaeda training courses at various camps around Afghanistan, learning guerilla warfare, weapons training, including landmines, kidnapping techniques and assassination methods.^[21] He also allegedly participated in an advanced course on surveillance, in which he conducted surveillance of the U.S. and British embassies in Kabul, Afghanistan." On one occasion when al-Qaeda founder Osama bin Laden visited an Afghan camp, Hicks questioned bin Laden about the lack of English in training material and subsequently "began to translate the training camp materials from Arabic to English".^[21] Hicks wrote home that he'd met Osama bin Laden 20 times but later told investigators he had exaggerated, that he had seen bin Laden about eight times and spoken to him only once.

"There are a lot of Muslims who want to meet Osama Bin Laden but after being a Muslim for 16 months I get to meet him."^[25]

Prosecutors also allege Hicks was interviewed by Muhammad Atef, an al-Qaeda military commander, about his background and "the travel habits of Australians". In a memoir that was later repudiated by its author, Guantanamo detainee Feroz Abbasi claimed Hicks was "Al-Qaedah's 24 [carat] Golden Boy" and "obviously the favourite recruit" of their al-Qaeda trainers during exercises at the al-Farouq camp near Kandahar. The memoir made a number of claims, including that Hicks was teamed in the training camp with Filipino recruits from the Moro Islamic Liberation Front and that during internment in Camp X-Ray. Hicks described his desire to; "go back to Australia and rob and kill Jews... crash a plane into a building," and to "go out with that last big adrenalin rush.".^[26]

On 9 September 2001, Hicks travelled from Afghanistan to Pakistan to visit a friend.^[10] A US Department of Defense statement claimed that, "viewing TV news coverage in Pakistan of the September 11, 2001 attacks against the United States" led Hicks to return to Afghanistan to "rejoin his al-Qaeda associates to fight against U.S., British, Canadian, Australian, Afghan, and other coalition forces".^[21][13] Hicks arrived in the southern Afghan city of Kandahar where he reported to Saif al Adel, who was assigning individuals to locations, and "armed himself with an AK-47 automatic rifle, ammunition, and grenades to fight against coalition forces". Hicks was given a choice of three locations and chose to join a group of al-Qaeda fighters defending the Kandahar airport. After Coalition bombing commenced in October 2001, Hicks began guarding a Taliban tank position outside the airport. After guarding the tank for a week Hicks, with an LET acquaintance, traveled closer to the battle front in Kunduz where he joined others including John Walker Lindh.^[22][21]

Colonel Morris Davis, chief prosecutor for the US office of Military Commissions said "He eventually left Afghanistan and it's my understanding was heading back to Australia when 9/11 happened. When he heard about 9/11, he said it was a good thing (and) he went back to the battlefield, back to Afghanistan, and reported in to the senior leadership of al-Qaeda and basically said, 'I'm David Hicks and I'm reporting for duty'". Davis also compared Hicks' alleged actions to that of those who carried out terrorist attacks such as Bali, the London and Madrid bombings and the Beslan school siege.^[27]

Terry Hicks, however, claimed that his son seemed at first unaware, then skeptical, of the September 11 attacks when they spoke on a mobile phone in early November 2001. He also noted David Hicks commented about "going off to Kabul to defend it against the Northern Alliance".^[28][12]

In October and November 2001 Hicks wrote multiple letters to his mother Sue King back in Australia. He asked that replies were to be directed to Abu Muslim Australia, a pseudonym he used to circumvent non-Muslim spies he believed intercepted correspondence. In these letters he detailed the validity of Jihad and his own prospect of "martyrdom".

"As a Muslim young and fit my responsibility is to protect my brothers from aggressive non-believers and not let them destroy it. Islam will rule again but for now we must have patience we are asked to sacrifice our lives for Allahs cause why not? There are many privileges in heaven. It is not just war it is jihad. One reward I get in being martyred I get to take ten members of my family to heaven who were destined for hell, but first I also must be martyred. We are all going to die one day so why not be martyred? "^[25]

In November 2005, the Australian Broadcasting Corporation program Four Corners broadcast for the first time a transcript of an interview with Hicks, conducted by the Australian Federal Police in 2002 and other material including a report that Hicks had signed a statement written by American military investigators stating that he had trained with al-Qaeda in Afghanistan, learning guerrilla tactics and urban warfare.^[13] The program also reported that Hicks had met Osama bin Laden. That he claimed to have disapproved of the September 11 attacks but to have been unable to leave Afghanistan. He denied engaging in any actual fighting against US or allied forces.

[edit] Capture and detention

David Hicks's Guantanamo Bay cell (November 2006), and inset, the reading room with no books

He was captured by a "Northern Alliance warlord" near Kunduz, Afghanistan, on or about 9 December 2001 and turned over to US Special Forces for $1000 on 17 December 2001.^[26][19][29] Hicks's father Terry, when interviewed, said "David was captured by the Northern Alliance unarmed in the back of a truck or a van. So it wasn't on the battlefield at all."^[30]

In 2002, Hicks's father sought to have him brought to Australia for trial. In 2003, the Australian government requested that Hicks be brought to trial without further delay, extending Hicks consular support per its responsibilities^[31] and legal aid under the Special Circumstances Overseas Scheme.^[32]

[edit] Torture allegations

In an affidavit, dated 5 August 2004 and released on 10 December 2004, Hicks alleged mistreatment by U.S. forces, included being:

• beaten while blindfolded and handcuffed
• forced to take unidentified medication
• sedated by injection without consent
• struck while under sedation
• regularly forced to run in leg shackles causing ankle injury
• deprived of sleep "as a matter of policy"
• witness to use of attack dogs to brutalise and injure detainees.

He also said he met with US military investigators conducting a probe into detainee abuse in Afghanistan and had told the International Red Cross on earlier occasions that he had been mistreated.^[33] Hicks told his family in a 2004 visit to Guantanamo Bay that he had been anally assaulted during interrogation by the U.S. in Afghanistan while he was hooded and restrained. Hick's father claimed; "He said he was anally penetrated a number of times, they put a bag over his head, he wasn't expecting it and didn't know what it was. It was quite brutal."^[5] In a Four Corners interview, Terry Hicks discussed these "allegations of physical and sexual abuse of his son by American soldiers".^[34]

Hicks claims to have found conditions at the camps in the latter years to be equally trying. According to conversations with his father, Hicks said he had been abused by both Northern Alliance and US soldiers. In response, the Australian government announced its acceptance of U.S. assurances that David Hicks had been treated in accordance with international law.^[32] In March 2006, camp authorities moved all ten of the Guantanamo detainees who faced charges into solitary confinement. This was described as a routine measure because of the impending attendance of the detainees at their respective tribunals. However, Hicks remained in solitary confinement, for seven weeks after the US Supreme Court's confirmed a ruling that the commissions were unconstitutional, which was reported to have "deteriorated his condition".^[35] Hicks was a well-behaved detainee, but he was in solitary confinement for 23 hours a day.^[36] The window in his cell was internal, facing onto a corridor.^[37][38] Hicks claimed to have declined a visit from Australian Consular officials because he had been punished for speaking candidly with consular officials about the conditions of his detention on previous visits.^[39] Hicks was talking about suicidal impulses during his periods in isolation at Camp Echo, "He often talked about wanting to smash his head ... against the metal of his cage and just end it all."

[edit] OARDEC administrative procedures

In 2004 the Bush administration set up the Office for the Administrative Review of Detained Enemy Combatants.

[edit] Combatant Status Review Tribunal

Combatant Status Review Tribunals were held in a trailer the size of a large RV. The captive sat on a plastic garden chair, with his hands and feet shackled to a bolt in the floor.^[40][41] Three chairs were reserved for members of the press, but only 37 of the 574 Tribunals were observed.^[42]

The Bush administration asserted that the Geneva Conventions did not apply to captives from the war on terror. This policy was challenged before the Judicial branch. Critics^[who?] argued that the USA could not evade its obligation to conduct competent tribunals to determine whether captives are, or are not, entitled to the protections of prisoner of war status.

Subsequently the Department of Defense instituted the Combatant Status Review Tribunals. The Tribunals, however, were not authorized to determine whether the captives were lawful combatants -- rather they were merely empowered to make a recommendation as to whether the captive had previously been correctly determined to match the U.S. Government's definition of an enemy combatant.

[edit] Initial charges

Hicks was charged by a U.S. military commission on 26 August 2004. A Summary of Evidence memo was prepared for Hicks's Combatant Status Review Tribunal on 7 September 2004, alleging:^[43]

a. The detainee is an al-Qaeda fighter:

1. The detainee affiliated himself with the Taliban.
2. The detainee knew his training was conducted by al-Qaeda, which had declared war on the United States.
3. The detainee was trained to use grenades, landmines, rocket-propelled grenades and other small arms weapons.
4. The detainee attended the al-Qaida Information Course in Kabul, where the instructor cited the al-Qaida bombing of the USS Cole as a positive example of the uses of al-Qaeda training.
5. The detainee met Osama Bin Laden on approximately eight occasions.

b. The detainee participated in military operations against the coalition.

1. The detainee personally collected intelligence on the American Embassy in Afghanistan for al-Qaida.
2. Following 9-11, the detainee met with a senior al-Qaeda leader to discuss various locations to fight against the United States and Northern Alliance forces.
3. After being stationed near the Khandahar airport, the detainee agreed to fight on the frontlines in Konduz.
4. The detainee was captured by Northern Alliance forces near Bagram.
5. While engaged in combat, the detainee failed to wear a uniform or any type of emblem or distinctive military article designating him as a fighter; nor did he follow any typical military chain of command.

In Guantanamo, Hicks signed a statement written by American military investigators that includes the following, "I believe that al-Qaeda camps provided a great opportunity for Muslims like myself from all over the world to train for military operations and jihad. I knew after six months that I was receiving training from al-Qaeda, who had declared war on numerous countries and peoples."^[13][44][45]

Hicks was charged by a U.S. military commission on 26 August 2004. That commission was subsequently abolished and the charges voided when on 29 June 2006, the United States Supreme Court ruled in the case Hamdan v. Rumsfeld that the military commissions were illegal under United States law and the Geneva Conventions.

The indictment prepared for the previously scheduled trial had alleged that Hicks had trained and conspired in various ways, and was guilty of "aiding the enemy" while an "unprivileged belligerent". No specific acts of violence were alleged. He was detained in December 2001.

In the voided indictment of Hicks, the United States government had alleged that:

• In November 1999 Hicks travelled to Pakistan, where he joined the paramilitary Islamist group, Lashkar-e-Toiba (Army of the Pure).
• Hicks trained for two months at a Lashkar-e-Toiba camp in Pakistan, where he received weapons training, and that during 2000 he served with a Lashkar-e-Toiba group near the Pakistan Occupied Kashmir.
• In January 2001 Hicks travelled to Afghanistan, then under the control of the Taliban regime, where he presented a letter of introduction from Lashkar-e-Toiba to Ibn al-Shaykh al-Libi, a senior al-Qaeda member, and was given the alias "Mohammed Dawood".
• He was sent to al-Qaeda's al-Farouq training camp outside Kandahar, where he trained for eight weeks, receiving further weapons training as well as training with land mines and explosives.
• He did a further seven-week course at al-Farouq, during which he studied marksmanship, ambush, camouflage and intelligence techniques.
• At Osama bin Laden's request, Hicks translated some al-Qaeda training materials from Arabic into English.
• In June 2001, on the instructions of Mohammed Atef, an al-Qaeda military commander, Hicks went to another training camp at Tarnak Farm, where he studied "urban tactics," including the use of assault and sniper rifles, rappelling, kidnapping and assassination techniques.
• In August Hicks went to Kabul, where he studied information collection and intelligence, as well as Islamic theology including the doctrines of jihad and martyrdom as understood through al-Qaeda's fundamentalist interpretation of Islam.
• In September 2001 Hicks travelled to Pakistan and was there at the time of the September 11, 2001 attacks on the United States, which he saw on television.
• He returned to Afghanistan in anticipation of the attack by the United States and its allies on the Taliban regime, which was sheltering Osama bin Laden.
• On returning to Kabul, Hicks was assigned by Mohammed Atef to the defence of Kandahar, and that he joined a group of mixed al-Qaeda and Taliban fighters at Kandahar airport, and that at the end of October, however, Hicks and his party travelled north to join in the fighting against the forces of the US and its allies.
• After arriving in Konduz on 9 November 2001, he joined a group which included John Walker Lindh (the "American Taliban"). This group was engaged in combat against Coalition forces, and during this fighting he was captured by Coalition forces.

The US administration has alleged that Hicks:^[46]

• Attended advanced al-Qaeda training camps
• Associated with senior al-Qaeda leaders after 9/11
• Was issued weapons to fight US troops in Afghanistan
• Carried out surveillance on US and other international embassies

In an interview with The Age newspaper in January 2007, Col. Morris Davis, the chief prosecutor in the Guantanamo military commissions, also alleged that Hicks had been issued with weapons to fight US troops, and had conducted surveillance against US and international embassies. Davis stated he would be charged for these offences, and predicted the charging would take place before the end of January. He alleged that Hicks "knew and associated with a number of al-Qaeda senior leadership." and that, "he conducted surveillance on the US embassy and other embassies". He went on to compare Hicks to the Bali bombers, expressing concern that Australians were misjudging the military commission system due to PR "smoke" from Hicks's lawyer.^[46]

James Yee, a US Army chaplain who regularly counselled Hicks while detained at Guantanamo Bay, gave a statement shortly after Hicks was freed in December 2007. He said that he did not feel Hicks was a threat to Australia, and that "Any American soldier who has been through basic training has had 50 times more training than this guy".^[47]

[edit] Administrative Review Board hearing

Hearing room where Guantanamo captive's annual Administrative Review Board hearings convened for captives whose Combatant Status Review Tribunal had already determined they were an "enemy combatant".^[48]

Detainees who were classified as "enemy combatants" were scheduled to have their dossier reviewed at annual Administrative Review Board hearings. The Administrative Review Boards weren't authorized to review whether a detainee qualified for POW status, and they weren't authorized to review whether a detainee should have been classified as an "enemy combatant".

They were authorized to consider whether a detainee should continue to be detained by the United States, because they continued to pose a threat -- or whether they could safely be repatriated to the custody of their home country, or whether they could be set free.

In September 2007 the Department of Defense released all the Summary of Evidence memos prepared for the Administrative Review Boards convened in 2005 or 2006.^[49][50]

[edit] Trial delays

[edit] Defence team

The U.S. Army appointed United States Marine Corps Major Michael Mori as defence counsel to Hicks. Hicks's civilian defence was being funded by Dick Smith, an Australian entrepreneur. Smith has stated that he was funding the defence "to get him a fair trial".^[51]

[edit] Delays in legal proceedings

In November 2004, Hicks's trial was delayed when a US Federal Court ruled that the military commissions in question were unconstitutional^{[citation needed]}. In February 2005 the Hicks's family lawyer, Stephen Kenny, who had been representing Hicks in Australia without compensation since 2002, was dismissed from the defence team and Vietnam veteran and Army Reservist David McLeod replaced him^{[citation needed]}.

Hicks's trial was next set for 10 January 2005^{[citation needed]} but there were numerous postponements and further legal wrangling over the years that followed. In mid-February 2005, Jumana Musa, Amnesty International's legal observer at Guantanamo Bay, visited Australia to speak to Attorney-General Philip Ruddock (a member of Amnesty International) about the military commissions. Musa stated that Australia was "the only country that seems to have come out and said that the idea of trying somebody, their own citizen, before this process might be OK, and I think that should be a concern to anybody."^[52] In July 2005 a US appeals court accepted the prosecution claim that because "the President of the United States issued a memorandum in which he determined that none of the provisions of the Geneva Conventions "apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a high contracting party to Geneva," that Hicks, among others, could be tried by a military tribunal.^[53] In July 2005, the US appeals court ruled that the trial of "Unlawful Combatants" did not come under the Geneva Convention, and that they could be tried by a military tribunal.^[54] In early August 2005, leaked emails from former US prosecutors criticised the legal process, accusing it of being "a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged" and "writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard, particularly when you want to call yourself an officer and lawyer".^[55] Ruddock responded by saying that the emails, written in March 2004, "must be seen as historic rather than current."^[56] In October 2005, the US government announced that if Hicks was convicted, his pre-trial detention would not count as time served against his sentence.^[57]

On 15 November 2005, District Judge Colleen Kollar-Kotelly stayed the proceeding against Hicks until the US Supreme Court had ruled on Hamdan's appeal over their constitutionality.^{[58][59][60][61][62]}

2006 was also fraught with delays. On 29 June 2006, in the case Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military tribunals were illegal under United States law and the Geneva Conventions. On 7 July 2006 a memo was issued from The Pentagon directing that all military detainees are entitled to humane treatment and to certain basic legal standards, as required by Common Article 3 of the Geneva Conventions.^[63] On 15 August 2006 Attorney-General Philip Ruddock announced that he would seek to return Hicks to Australia if the United States did not proceed quickly to lay substantive new charges.^[64] On 6 December 2006 Hicks's legal team lodged documents with the Federal Court of Australia, arguing that the Australian government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks's incarceration by the US comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.^[65][66]

On 9 March 2007, his lawyer said that David Hicks was expected to bring a case seeking to force the Australian Federal Government to ask the US government to free him.^[67] On 26 March 2007 Leigh Sales suggested, "The Hicks defence strategy relies on delaying the process for so long that the Australian Government will be forced to ask for the prisoner’s return."^[68]

As years passed, the legitimacy, integrity and fairness of trialling Hicks before a US military commission was increasingly questioned.^{[33][69][70][71][72][73]}

[edit] British citizenship bid

Wikinews has related news:

Australian Guantanamo detainee David Hicks gets British citizenship

In September 2005, it was realised that Hicks may be eligible for British citizenship through his mother, as a consequence of the Nationality, Immigration and Asylum Act 2002.^[74] Hicks's British heritage was revealed during a casual conversation with his lawyer, about the 2005 Ashes cricket series. The British government had previously negotiated the release of the nine British nationals incarcerated at Guantanamo Bay, so it was considered possible that these releases could be extended to Hicks if his application was successful.^[75]

Hicks applied for citizenship, but there were six months of delays. In November 2005, the British Home Office rejected Hicks's application for British citizenship on character grounds, but his lawyers appealed the decision. On 13 December 2005 Lord Justice Lawrence Collins of the High Court ruled that then-Home Secretary Charles Clarke had "no power in law" to deprive Mr Hicks of British citizenship "and so he must be registered". The Home Office announced it would take the matter to the Court of Appeal, but Justice Collins denied them a stay of judgement, meaning that the British government must proceed with the application.^[76] On 17 March 2006 the Home Office alleged during its appeal case that Hicks had admitted in 2003 to the Security Service (British intelligence agency MI5) that he had undergone extensive terrorist training in Afghanistan.^[77] On 12 April 2006 the Court of Appeal upheld the High Court's decision that Hicks was entitled to British citizenship. The Home Office declared it would appeal the matter again, its last option being to submit an appeal to Britain's highest court, the House of Lords, no later than 25 April.^[78] On 5 May, however, the Court of Appeal declared that no further appeals would be allowed, and that the Home Office must grant Hicks British citizenship.^[79] Hicks's legal team claimed in the High Court on 14 June 2006 that the process of Mr Hicks's registration as a British citizen had been delayed and obstructed by the United States, which had not allowed British consular access to Hicks in order to conduct the oath of allegiance to the Queen and the United Kingdom.^[80] His military lawyer has the authority to administer oaths and offered to conduct the oath if the American government permitted it.^[81]

On 27 June, with Hicks's British citizenship confirmed, the British Foreign and Commonwealth Office announced that it would not seek to lobby for his release as it had with the other British detainees. The reason given was that Hicks was an Australian citizen when he was captured and detained and that he had received Australian consular assistance.^[82] On 5 July 2006 Hicks was registered as a British citizen, albeit only for a few hours — Home Secretary John Reid intervened to revoke Hicks's new citizenship almost as soon as it had been granted, citing section 56 of the Immigration, Asylum and Nationality Act 2006 allowing the Home Secretary to "deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good".^[83] Hicks's legal team called the decision an "abuse of power", and announced they would lodge an appeal with the UK Special Immigration Appeals Commission and the High Court.

[edit] Seizure of Hicks's legal papers

Following the suicide of three detainees, camp authorities seized prisoners' papers. Described as a security measure, it was claimed that instructions for tying a hangman's noose had been found written on stationery issued to the lawyers who met with detainees to discuss their habeas corpus requests. The Department of Justice acknowledged in court that "privileged attorney-client communications" had been seized. Hicks's lawyer questioned whether Hicks could have been part of a suicide plot, since he had spent the preceding four months in solitary confinement in a different part of the camp, and expressed concern that attorney-client confidentiality, "the last legal right that was being respected", had been violated.^[84]

[edit] New charges

On 3 February 2007 the U.S. military commission announced that it had prepared new charges against David Hicks. The drafted charges were "attempted murder" and "providing material support for terrorism", under the Military Commissions Act of 2006.^[85][86] Each offence carries a maximum penalty of life imprisonment.^[87] The prosecutors said they would argue for a jail term of 20 years, with an absolute minimum of 15 years to be served.^[88] However the sentence, which was not required to take into account time already served, was ultimately up to a jury of US military officers.^[89] The Convening Authority assessed whether there was enough evidence for charges to be laid and Hicks trialled.^[90] The charge of providing material support for terrorism was based on retrospectively applying the law passed in 2006.^[86][91]

On 16 February 2007 a 9-page charge sheet detailing the new charges was officially released by the U.S. Defense Dept.^[92]

The charge sheets alleged that:

• Around August 2001 Hicks conducted surveillance on the American and British embassies in Kabul.
• Using the name Abu Muslim Austraili he attended al-Qaeda training camps.
• Around April 2001 Hicks returned to al Farouq and trained "in al-Qa'ida's guerilla warfare and mountain tactics training course". The course included "marksmanship; small team tactics; ambush; camouflage; rendezvous techniques; and techniques to pass intelligence to al-Qa'ida operatives".
• While at the al Farouq camp, al-Qa'ida leader Osama bin Laden visited the camp on several occasions and "during one visit Hicks expressed to bin Laden his concern over the lack of English al-Qa'ida training material".
• On or about 12 September 2001 he left Pakistan after watching TV footage of the September 11 terrorist attacks to return to Afghanistan "and, again joined with al-Qa'ida".
• On his return to Afghanistan Hicks was issued an AK-47 automatic rifle and armed himself with 300 rounds of ammunition and 3 grenades to use in fighting the United States, Northern Alliance and other coalition forces.
• On or about 9 November 2001 Hicks spent about two hours on the front line at Konduz "before it collapsed and he was forced to flee".
• Around December 2001, Northern Alliance forces captured Hicks in Baghlan, Afghanistan.

On 1 March 2007, David Hicks was formally charged with material support for terrorism, and referred to trial by the special military commission. The second charge of attempted murder was dismissed by Judge Susan Crawford, who concluded there was "no probable cause" to justify the charge.^[93]

In March 2007, the prospect of further delay loomed when Mori was allegedly threatened with a US military discipline offence by the Chief U.S. military prosecutor, Colonel Morris Davis, but no charges were filed against Mori.^[94]

Leaders and legal commentators in both countries criticised the prosecution as the application of ex post facto law and deemed the 5-year process to be a violation of Hicks's basic rights.^[95][23][96] The United States countered that the charges relating to Hicks were not retrospective but that the Military Commissions Act had codified offences that had been traditionally tried by military commissions and did not establish any new crimes.^[32]

Hick's defence lawyer and many international judiciary members claimed that it would have been impossible for a conviction to be found against Hicks.^[97][98][99]

The Indian government launched an investigation into the alleged attacks by Hicks on their armed forces in Kashmir, during 2000.^[23]

[edit] Pre-trial agreement and sentence

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On 26 March 2007, following negotiations with Hicks's defense lawyers, the convening authority Judge Susan Crawford directly approved the terms of a pre-trial agreement.^[100] The agreement stipulated that Hicks enter a guilty plea to a single charge of providing material support for terrorism in return for a guarantee of a much shorter sentence than had been previously sought by the prosecution. The agreement also stipulated that the 5 years already spent by Hicks at Guantanamo Bay could not be subtracted from any sentence handed down, that Hicks must not speak to the media for one year nor take legal action against the United States, and that Hicks withdraw allegations that the U.S. military abused him. Accordingly, in the first ever conviction by the Guantanamo military tribunal and the first conviction in a U.S. war crimes trial since World War II, on 31 March, the tribunal handed down a seven year jail sentence for the charge, suspending all but 9 months.^{[101][102][103]}

Australian and US critics speculated that the one-year media ban was a condition requested by the Australian government and granted as a political favour. Senator Bob Brown of the Australian Greens said, "America's guarantee of free speech under its constitution would have rendered such a gag illegal in the U.S.".^[104] The Australian government denied that the media ban had anything to do with itself or the nearing 2007 Australian federal election,^[105][106] with Australian Prime Minister John Howard saying "We did not impose the sentence, the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks's lawyers, and the suggestion ... that it's got something to do with the Australian election is absurd." Brigadier-General Thomas Hemingway, the legal adviser to the military tribunal convening authority, has since claimed the gag order as his idea.^[107] Federal Attorney-General Philip Ruddock stated that Australian law would not prohibit Hicks from speaking to media, although Hicks would be prevented from selling his story.^[108]

The Law Council of Australia reported that the trial was "a contrived affair played out for the benefit of the media and the public", "designed to lay a veneer of due process over a political and pragmatic bargain", serving to corrode the rule of law. They referred to government support for the military tribunal process as shameful.^[109]

The length of the sentence caused an "outcry" in the United States and against Defense Department lawyer Susan Crawford, who allegedly bypassed the prosecution in order to meet an agreement with the defense made before the trial. Chief prosecutor Colonel Davis was unaware of the plea deal and surprised at the nine-month sentence, telling The Washington Post "I wasn't considering anything that didn't have two digits," meaning a sentence of at least 10 years.^[110]

Ben Wizner of the American Civil Liberties Union described the case as "an unwitting symbol of our shameful abandonment of the rule of law".^[111]

[edit] Political manipulation claims

Pentagon chief prosecutor Colonel Morris Davis resigned from the US defence force on 5 October 2007 citing dissatisfaction with the Guantanamo military commission process. Davis alleged that the process had become highly politicised and that he had felt "pressured to do something less than full, fair and open".^{[112][113][114]}

In November 2007, allegations from an anonymous U.S. military officer, that a high-level political agreement had occurred in the Hicks case, were reported. The officer said that "one of our staffers was present when Vice-President Cheney interfered directly to get Hicks's plea bargain deal. He did it apparently, as part of a deal cut with Howard". Australian Prime Minister John Howard denied any involvement in Hicks's plea bargain.^[102][103]

In 2008, Colonel Davis elaborated on his earlier criticisms, saying that the Hicks trial was flawed and appeared rushed for the political benefit of the Howard government in Australia. Davis said of his former superiors that "there is no question they wanted me to stage show trials that have nothing to do with the centuries-old tradition of military justice in America". On 28 April 2008, while testifying at a pre-trial hearing at Guantanamo for Salim Hamdan, Colonel Davis said that he had "inherited" the Hicks case but did not consider it serious enough to warrant prosecution.^{[8][115][2][116][117]}

[edit] Repatriation and release

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On 20 May 2007 Hicks arrived at RAAF Base Edinburgh in Adelaide, South Australia on a chartered flight reported to have cost the Australian government over $ 500,000. Attorney-General Philip Ruddock asserted that this arrangement was the consequence of US restrictions on the transit of Hicks through US airspace or territory preventing the use of less expensive commercial flights.^[32][118] Hicks was taken to Adelaide's Yatala Labour Prison where he was kept in solitary confinement in the state's highest-security ward, G Division.^[119]

Hicks was released on 29 December 2007 and placed under a control order obtained by the Australian federal police earlier that month. The order required Hicks to not leave Australia, to report to a police station three times a week, and to use only an AFP-approved mobile phone SIM card.^[120] On 19 February 2008 he was given special dispensation by federal magistrate Warren Donald to leave South Australia. On 20 February 2008, Hicks moved to Abbotsford, New South Wales. A curfew between 1:00am and 5:00am was imposed.^[121]

[edit] See also

• Terrorism in Australia
• Combatant Status Review Tribunal
• Guantanamo military commission
• John Walker Lindh
• List of converts to Islam
• Islamic terrorism

[edit] References

[edit] External links

[edit] Media

• The Trials of David Hicks (multimedia), The Age.
• The President Versus David Hicks. A documentary about the "Australian Taliban", David Hicks. The film follows the struggles of David's father. Released in 2004.

v • d • e Detainees facing charges before the Guantanamo military commission February 2004 Charges Ali Hamza al-Bahlul (conspiracy) - Ibrahim al-Qosi (conspiracy) August 2004 Charges David Hicks (support) November 2005 Charges Omar Khadr (murder), Sufyian Barhoumi, Ghassan al-Sharbi, Jabran bin al-Qahtani, /Binyam Muhammad June 2006 Ruling All tribunals are cancelled, following Supreme Court ruling in Hamdan v. Rumsfeld that Military Commissions were unconstitutional. Future charges are under the Military Commissions Act of 2006. February 2007 David Hicks (support), Omar Khadr (murder), Salim Hamdan (providing support) May 2007 Charges Salim Hamdan (providing support) October 2007 Charges Mohamed Jawad February 2008 Charges Khalid Sheikh Mohammed, Walid Bin 'Attash, Ammar al-Baluchi (providing support), Ramzi Binalshibh (providing support), Mustafa al-Hawsawi (providing support), Mohamed al-Kahtani March 2008 Charges Ahmed Ghailani (embassy bombings) June 2008 Charges Mohammed Hashim (launching rockets), /Binyam Muhammad