Hicks: war crime missing in action
Tuesday, July 15, 2014
Justinian in Court in the Act, David Hicks, Guantanamo, Material support for terrorism, War crimes

Howard's terrorist pin-up boy David Hicks convicted of a war crime that doesn't exist ... DC Circuit Court of Appeals finds "material support for terrorism" is not a war crime ... Hicks' conviction likely to be quashed ... Bullied into a plea deal by the Bush and Howard governments in 2007 ... Soapy Brandis looking more than usually idiotic ... Miscarriage of justice 

Hicks: miscarriage of justice

David Hicks is one step closer to having his conviction as a war criminal quashed. 

After being captured on the Afghanistan battlefield and spending six years at Guantanamo Bay, Hicks entered a plea bargain in March 2007 before a Military Commission to a charge of "material support for terrorism". 

All seven judges of the US Court of Appeals for the DC Circuit have now found that material support for terrorism is not a war crime triable by military commission. 

Hicks' appeal against his conviction before the Court of Military Commission Review had been stayed pending the outcome of the DC appeal court in the case of Ali Hamza al-Bahlul, who had been Bin Laden's PR man. 

A charge of conspiracy against al-Bahlul has been upheld. 

In 2009 lawyers from the US Department of Justice told Congress that "material support for terrorism" was not a valid war crime and should be dropped from the Military Commissions Act. 

The offence had been created by Congress after Hicks allegedly committed it. Prior to the invention of the Military Commissions, material support for terrorism had never been a war crime. 

Hicks was accused of materially supporting terrorism by "engaging in combat" against US forces in Afghanistan. 

Fighting Americans on the field of battle had unexpectedly became a war crime. 

Congress failed to remove the offence from the Military Commissions Act and the Obama Administration still accepted a guilty plea for the offence from Ibrahim Al Qosi, bin Laden's cook and bookkeeper. 

This latest finding by the DC appeals court further weakens the Military Commission apparatus on Guantanamo. 

Since the detention centre became operational only eight prisoners have been convicted of war crimes. Six were the result of plea bargains (including Hicks) and another case was overturned by a civilian court. 

Six are in the process of being tried, including five accused of organising the attacks of 9/11. Hicks was the first Guantanamo prison to be convicted of an alleged war crime. 

The Australian entered what is known as an Alford plea - that is he maintained his innocence but accepted that the prosecution's evidence would be likely to convict him. 

The Hicks case was tainted by political meddling while he was portrayed by the Howard government as the country's number one terrorist. 

Colonel Morris Davis, the Pentagon's chief prosecutor at the Military Commissions, said that the process in Hicks' case had been flawed and driven by the Bush administration for the political benefit of the Howard government. 

After he was released from Guantanamo Bay the plea deal required him to spend nine months of a suspended seven year sentence in South Australia's Yatala prison. He was prevented from speaking to the media and waived his right to appeal. 

The government delayed his release until after the 2007 election. Thereafter he was placed on a control order that had been obtained by the AFP.  He could not leave Australia, had to report to the police three times a week, and could only use an AFP-approved mobile phone SIM card.

The control order expired in December 2008. 

The US prosecutors had failed to file the waiver of appeal and so that part of the plea deal became a nullity. 

Senator George Brandis kept up a campaign against Hicks from the Opposition benches and urged the Commonwealth DPP to bring a proceeds of crime case in relation to the publication of the book Guantanamo: My Journey

In 2012 the DPP withdrew the case after it was pointed out that admissions of guilt were inadmissible if they had been procured by "violent, oppressive, inhuman or degrading conduct". 

Hicks had been subject to all of those abuses at Guantanamo Bay and only pleaded guilty in order to be released from US custody. 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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