Debate about whether the offence of material support for terrorism is or is not an example of retrospective legislation being applied to David Hicks has dominated the discussion on the charges finally being laid by United States military authorities under their revised military commission.

Supporters of Hicks being returned to Australia to face any relevant charges are making much of an alleged hypocrisy by the Howard Government. The argument is that Attorney-General Philip Ruddock has said there could be no such charges laid in Australia unless new laws were applied retrospectively and the Government is opposed to such retrospectivity. But the government isn’t opposing the US Government doing exactly that; material support for terrorism was not an offence until the Military Commission Act of 2006 made it one.

Or was it? It’s an interesting debating point for lawyers with the US military prosecutor Colonel Moe Davis maintaining this morning on ABC radio that there was such an offence when Hicks was arrested five years ago.

“It’s not a new offence, the difference here is the forum in which that offence can be prosecuted, so this is not a new crime, so I would say that that’s just a load of rubbish,” is how the Colonel referred to the arguments of the Hicks supporters.

Perhaps a better cause for protest would be the second charge that the Australian prisoner in Guantanamo Bay is facing – that of attempted murder. Colonel Davis has a novel definition of attempted murder that does not involve actually trying to kill anyone.

What is to be alleged against Hicks is that he had a gun at the time of his arrest and was prepared to use it to shoot a US soldier if he’d been at the right place at the right time. He just lacked the opportunity.

Using this kind of definition of a crime, there aren’t many people who would not be open to be charged with something. If thoughts were crimes, former President Jimmy Carter, for example, might find himself stoned to death in a country with sharia law.

After all, in a 1976 Playboy article he said:

I try not to commit a deliberate sin. I recognize that I’m going to do it anyhow, because I’m human and I’m tempted. And Christ set some almost impossible standards for us. Christ said, ‘I tell you that anyone who looks on a woman with lust has in his heart already committed adultery.’ I’ve looked on a lot of women with lust. I’ve committed adultery in my heart many times.

Peter Fray

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