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Federal

Jul 24, 2012

Commonwealth drops Hicks action, damns plea deal

The Commonwealth's decision to abandon the pursuit of David Hicks for the proceeds of his book raises more questions about his treatment.

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The Commonwealth Director of Public Prosecution’s decision to abandon its legal action under the Proceeds of Crime Act against David Hicks for the proceeds of his book has raised fundamental questions about the plea deal he agreed to and his treatment during his incarceration at Guantanamo Bay.

In a remarkable statement released a short time ago, the CDPP in effect declared it could not rely on evidence from the military commission that convicted Hicks following his plea agreement in 2007, or Hicks’s admissions to the commission, and on that basis, “this office was not in a position to discharge the onus placed upon it to satisfy the court that the admissions should be relied upon and decided that these proceedings should not continue”.

Let’s go back to the deal a desperate Howard government struck with the Bush administration (said to have been negotiated directly with Dick Cheney) in 2007 to remove the internment without trial of Hicks as a political problem. Hicks was banned from speaking to the media for 12 months and from suing the US government for his treatment, and required to withdraw his claims that he’d been abused during his incarceration. On Hicks’ return to Australia, then-Attorney-General Phillip Ruddock told Laurie Oakes “you can’t profit under Australian law from talking about criminal acts in which you have been engaged and we would seek to ensure that he would not be able to profit from any story that he sought to tell.”

Hicks has recounted that he was subjected to beatings before arriving at Guantanamo Bay and then subjected to an extended program of psychological torture while in captivity there, before agreeing to a deal to be returned to Australia. He has said he made the plea deal under duress and feared that he would never leave Guantanamo unless he accepted it.

Hicks’s legal team wanted to use the prosecution to present evidence of the treatment Hicks experienced while at Guantanamo, including evidence from former guard Brandon Neely, who has recounted routine physical abuse of inmates and his own shame at their treatment.

The Commonwealth action against Hicks relied on his plea deal and the admissions made by Hicks as part of the deal. “The evidence available to my office was sufficient to commence those proceedings on the basis that Mr Hicks stood to benefit financially from the commercial exploitation of his notoriety resulting from the commission of a foreign indictable offence,” the CDPP Christopher Craigie SC said in his statement. “The evidence included Mr Hicks’ plea of guilty before the United States Military Commission and admissions made by him before that Commission.”

However, Craigie said, Hicks had challenged the admissibility of commission evidence “based upon the conditions and circumstances in which he made the relevant admissions. The challenge also relied upon the fact that Mr Hicks entered what is known in the United States as an “Alford plea”. This is a type of plea not recognised in Australia, whereby a defendant is able to acknowledge that the available evidence is sufficient to prove the case beyond reasonable doubt, without admitting commission of the offences charged.”

Hicks and his lawyers had also “served evidential material not previously available to the CDPP and AFP.” By declining to proceed and implicitly acknowledging the problematic nature of Hicks’ plea agreement, the CDPP has in effect delivered a telling blow against the Howard government’s deal with the Bush administration and confirmed Hicks’ claim that he made the agreement under duress.

“I’m pleased that they have finally looked closely at the evidence we filed in this case, and seem to have concluded for themselves that it showed that my so-called conviction at Guantanamo was unfair and was obtained through duress,” Hicks said in a media statement today.

The decision is similar to the government’s decision early last year to settle with Mamdouh Habib, who had sued the government for complicity in his torture in Egypt, Guantanamo Bay and elsewhere. Habib has never been charged with any terrorism-related offence (News Ltd was forced to apologise on the weekend for saying so). The prime minister at the time declared that settling was “in the interests of taxpayers”. Exactly which taxpayers, and what their position was under the Howard government, remains unclear.

Like Habib’s claims of torture, Hicks’ will now not be evaluated in independent, formal proceedings that might shed light on his treatment and the role of the Australian and US governments in it.

Hicks and his lawyers were told yesterday of the decision not to proceed, and the matter was finalised with costs in Hicks’ favour this morning.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

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44 comments

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44 thoughts on “Commonwealth drops Hicks action, damns plea deal

  1. Liz45

    @JOHNFROMPLANETEARTH – He was a very young man when he went overseas. He’s still only young. Would you like to be judged for some of the things you did when you were still growing up.

    We now know that young men’s brains don’t finish maturing, developing etc until their mid 20’s, which is why they’re over represented in car accidents etc, binge drinking and other behavioural negatives. Many are totally different when they finally mature. They have trouble with their rational, reasonable thought processes combined with their emotional side. If they’re raised in a stressful environment this also has an impact on their brain’s development, that is, that there isn’t a pathway linking both sides of their brain. Once you understand these basic realities, it’s easy to realise why some young people, particularly males, engage in activities that an older man would run miles from. They also have difficulty in appreciating the repercussions of some of their actions. It doesn’t take an Einstein to understand these things. It explains many behaviours, while not condoning the negative ones. Perhaps you could read up on these realities.

    However, if you look at many of the politicians on the other hand, allegedly responsible adults and leaders?? who start wars, engage in horrific practices like at least condoning torture and other horrors, there is probably little chance that they’ll change for the better. It’s interesting to note, that the politicians who condemn David Hicks have more than a ‘blemished past’ themselves. David Hicks did NOT injure anyone? The same can’t be said for Bush, Blair, Howard, Reith, Ruddock, Andrews, Obama and so on. I find David to be a sensitive young man who speaks his truth simply and with conviction, as does his Dad. The others are despicable hypocrites! Major Michael Mori had enormous respect and admiration for David. He was willing to spoil his future career prospects to take a stand on matters of justice and principle! I’d adopt him as an ‘extra son’ any day – David too!

    How about you? What about your principles of justice and the rule of Law?

  2. Liz45

    @PATRIOT – There’s a major part of the justice system called where any person charged MUST be brought before the Court to hear the charges laid against him. The US, Britain & Australia lecture ad nauseum about these high ideals, that ‘makes us different to the terrorists’ etc etc? How do you explain what the US does in Guantanamo Bay, Abu Graib type jails in Iraq, Afghanistan, some European countries and of course, Egypt? How do you justify this basic tenet of our superior justice system? How come Ivan Milat, the horrific murderers of the Snowtown people etc are all afforded this high and mandatory part of our democracy, but don’t do it with people like David Hicks, Mandouh Habib and others. (habeous corpus I think it’s called?)

    You can’t pick and choose the people who are afforded this right, but deny others. No wonder young people rebel and/or hold adults with disgust for these blatant examples of hypocrisy. If I hear Barack Obama, Hillary Clinton or indeed the PM’s of Britain and Australia rave on about Syria etc I’ll be sick. Obama picks his ‘death targets’ every Tuesday morning it seems – before or after breakfast I wonder. Bush, Blair and Howard, all religious, church going christians broke International Law and others by whipping up ‘reasons’ to invade a sovereign country, leaving over 1 million dead and who knows how many injured – and then went back to church!

    Reith broke the Law; he lied about children overboard; Ruddock just missed out on having to go before the Senate? High Court for his outrageous comments re a High Court decision; he, Andrews, Howard and others remained silent when the FDPP lied in Court about Dr Haneef. As others have already observed, not one of these people have been brought before the Court. Then there’s AWB and others? All of them got off! Disgusting!

    You can’t defend the indefensible and assert that you have principles etc – you haven’t. You speak volumes when you defend any of the above and more. If it’s proven that there was ANOTHER conspiracy by the Libs to destroy a colleague, they’ll go free too! Why? They’re all part of the system, that’s why? Sickening! And some young person gets a community service penalty for kicking over garbage bins in the main street? No wonder young people rebel! It’s a glaring example of ‘do as I say, not as I do’?

    Oh yes, when these people drop off the perch, the rest of us will have to foot the bill for their state send off! The eulogies will be nauseating! Stifling! Sickening!

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