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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.


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.



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

  1. Oscar Jones

    What will the IPA have to say?. I argued back and forth about Hicls with one of their right wing pundits who regularly gets a gig on The Drum & in News Ltd outlets.

  2. Steve777

    I am not a fan of David Hicks nor of his choice to undergo military training with the Taliban. But what he did, while it would be illegal now, at the time broke no Australian law. He was found guilty by a dodgy military commission almost certainly using evidence obtained under duress. That certainly should not regarded as being found guilty of criminals acts by a properly constituted court of law. If the American military had evidence that he committed crimes, they should have charged him using proper due process, otherwise they should have treated him as a prisoner of war. And when it became clear that neither was going to happen, the Australian Government should have insisted on his repatriation, as did the United Kingdom for its subjects imprisoned in Guantanamo.

    The dropping of the case is the right result, although it may have been good to have had a chance to see the issues brought before a proper court.

  3. ConnorJ

    @ Oscar Jones – let me guess, those paragons of free markets and free speech over at the IPA supported the government in denying Hicks’s right to publish his story for profit?

  4. shepherdmarilyn

    Hicks broke no law in any country ever, the persecution and abuse of his human rights by Howard and then Roxon is disgusting.

    Might silence those pathetic old fools Gerard Henderson and Neil James.

  5. Mack the Knife

    The Ninemsm has a fairly sanitised version in their reporting that fails to go into much detail of why the prosecutors dropped the case other than insufficient strength of the evidence.

    I wonder if Hicks can sue Ruddock, Howeird, et al that slandered him?

  6. Liz45

    Well done! A good job ‘jobbed’? What happened to David Hicks was a damned disgrace. Initially, it took the US 2 1/2 years to lay charges, then they removed them, but continued to detain him for over 5 years altogether. What a travesty. The US ‘duchessed’ the Taliban during the Clinton years, and the Bush administration continued in that manner. There was no concern about the treatment of women and other civilians. Like now, the US and its allies are closed mouthed about the role of the war lords etc in Afghanistan, unless they have no choice but to make a comment – like recently, when the woman was executed in public. The Taliban are represented in the Karzai govt, but not a word of this to the coalition countries. And they made David Hicks out to be an evil monster????

    The US released Mamdouh Habib without charge; they didn’t want him to squeal either, but he has. The Howard Govt particularly all relevant Ministers and others are to be condemned for their treatment of not only these two men, but many others? So much for the US’s nauseating claims of democracy, justice and the rule of law! If only they practiced what they preached – Australia too! Shameful!

    Good on you David!

  7. Oscar Jones

    An IPA fellow called attendees at the 2011 Sydney Writers Festival “incredulous fools” in the SMH for listening to David Hicks describe his Gitmo days.

    That fellow is now an adviser to Tony Abbott. That’s the same Abbott who was part of the Howard ministry that completely over-looked the AWB kickbacks to the Saddam regime.

  8. CML

    This is about the first decent thing that has happened to this man.

    @ MACK THE KNIFE – Would Hicks have had a better chance to successfully sue those coalition members if this case had been allowed to proceed, his evidence had become public knowledge and he was able to establish that he did not break any laws? Just asking.

  9. shepherdmarilyn

    CML. he can sue, we know he broke no laws.

  10. shepherdmarilyn

    It is though another kick in the teeth for Brandis who pushed and shoved the AFP into this through senate estimates and an abuse of process.

  11. klewso

    Ruddock a paragon of “Howard justice”.

  12. shepherdmarilyn

    Ruddock should be in prison for crimes against humanity.

  13. Buddy

    What this again highlights is that we value our ‘special relationship’ with U.S.A far more than we do the citizen of this country . I wish someone could explain exactly, what we do, get out of it! this war on terror was and continues to be cited a reason to put aside human rights , laws and common decency. I wonder what this measure has cost in $ and erosions of freedoms, and what actual benefit has been gained

  14. Scott

    The Proceeds of Crime Act 2003 states that the court has to be satisfied that the person committed a “foreign indictable offence”, regardless of whether the person was convicted or not, for the proceeds to be confiscated. It’s not about retrying the case per se. It’s not an appeal so Hicks would not be able to sue for unlawful imprisonment even if the court finds for him.
    In my opinion, the Government could have gone after the proceeds (he was convicted of a crime under US law which is also a crime under Australian law which is the important thing in the legislation). You could argue about retrospective legislation if you like, but it was pretty clear he wasn’t holidaying in Pakistan and a victim of circumstance. And while the Australian government has caved, the Yanks might still go after the proceeds (they can push the case themselves through treaty obligations if required)

  15. Mike Smith

    @Marilyn: You don’t think that it will for a moment (silence Henderson & James).

    @Mack: The USA went for immunity, hard to believe Howard and co would not have got the same idea.

    @Oscar: I don’t think “incredulous fools” means what the UPA thought it did. That’s he’s Abbott’s advisor surprises me not at all.

  16. shepherdmarilyn

    Scott, you really take the biscuit today for incredible stupidity.

    Hicks committed no crime in any country at all. What is so hard about that for you to grasp? Are you simply cretinous?

  17. Liz45

    @SCOTT – I agree with Marilyn. You really do take the biscuit today. There’s lots of articles and a few books about Guantanamo Bay and those who were locked up, tortured etc. There are many who’ve since been released and have written books about it. At least Britain demanded that their citizens be released. There was at least one man who was kidnapped on the street; there was another who was a journalist; there’ve been several. There were people who were taken to other countries, such as Egypt and also Europe. In fact, Blair should be charged with allowing these planes in British airspace without permission. Like Howard, he allowed the US to do whatever they liked. They should all end up in the ICC! The sooner the better for justice!

    Read ‘American Torture’ which outlines the use of torture from just after WW2 until a couple of years ago. In fact, the book starts with David Hicks and Mandouh Habib! The author is an american too!

    Even Howard had to admit, that if David Hicks was here, there was NO crime to charge him with! The US had stated early on, that he hadn’t injured a soul! Not one!

    Those who think David was a criminal should read about the US militia. Companies like Blackwater and the role they played in Iraq at least? Probably Afghanistan too! Who’s forgotten Abu Graib? And it was just ONE of them! There’s plenty of others, apart from Gittmo and Abu Graib! There’s heaps of info out there!

  18. Pedantic, Balwyn

    @Scott Chopper read kept the money from his book. So a convicted criminal, of serious felonies, is more deserving than David Hicks?

  19. The Old Bill

    I know its hard to believe Scott, but the facts say Hicks is not guilty. He was in Pakistan / Afghanistan long before September the 11th and training with the Taliban, who at that time were still being courted by the US, regardless of their support for al-Qaeda. He wasn’t involved in “terrorism”. He didn’t blow anything up in anger. He also was trying to leave the country unarmed when caught. It is also hard to believe that at any time before the invasion of Afghanistan by the “Coalition of the Willing” that Hicks would have been in any position to see an unbiased report of what was happening in the rest of the world. I don’t see Afghan TV for obvious reasons, but I presume during the Taliban years it would have made poor viewing. I don’t think Rupert M ran the newspapers there either, but if there were any, I bet they were just as full of crap as the stuff we were fed over the entire sorry saga of the US getting even. A bit hard to say he is guilty of anything except a very bad lifestyle choice.

  20. geomac62

    I, have the Drum on at the moment and Reith has spewed his usual guff . He thinks Hicks is nothing and of innocence by Hicks are risible . He broke no Australian law or for that matter USA law which is why the yanks had to create retrospective laws to charge Hicks . Remember that pic of Hicks holding military hardware ? Well it was when he was with the Albanians and it was like the pick Munk and Darcy had recently . The difference of course being Hicks was with Albanians who the west backed against Milocovic . What do you say about that Scott ? Maybe you never checked it out but then again you would I think trust someone like Reith and vilify someone like Hicks . Reith who committed a criminal act against the commonwealth and was let off from serious repercussions by paying back what had been fraudulently spent on his pin card . Reith who broke the very IR laws he introduced when he collaborated in the waterfront union bashing with Corrigan . If Hicks has any guilt then so has Howard , Reith , Downer , Vaile and last but not least the collaborator in email fraud Abetz . Ther are amny more but not so much in the criminal sphere just moral and integrity crimes .

  21. shepherdmarilyn

    That dirty deal saw David Hicks in jail in Yatala with mass murderers like the Snowtown killers – as the deal was invalid so was that imprisonment.

    AS was the control order put on him by the dingbat AFP.

  22. Mack the Knife

    There should be a Royal Commission into the AWB affair, considering Downer banned all public servants from cooperating with the enquiry, the deliberate dragging and under resourcing of the AFP and the AFP bribe to the officer in charge to quietly drop it.

    I’m still at a loss as to why Godwin Gretch and the LNP parliamentarians escaped any legal accountability for perjury and trying to bring down a government.

  23. rupert moloch

    Good show! That man Hicks has suffered enough.

    Now as for a former PM I can think of: crimes against the law of the sea… conducting illegal wars of agression… (etc)

  24. AR

    I wonder if this means that the A/G dept, post Mr PotatoHead, is starting to realise what a shed load of injustice was shoved in the too-hard basket?
    Maybe they’ll start to look at the request for a Pardon for the Customs bloke who was convicted over leaks about ignoring security reports about Sydney airport?
    It’s only been on the A/G’s desk since 2009, despute admissions in Senate Estimates by the (current) head of the AFP, Negus, that information was withheld from both the CDPP & defence.
    Given that the ALP ran in 2007 on the injustice of his prosecution and promised restitution in government..errr…umm ..oh yeah, this government is too obsessed with hanging on by its fingernails which is odd, since this would be a universally welcomed piece of decent, good publicity.

  25. Bill Hilliger

    David Hicks was deemed a criminal by numerous polititians of the former government.

    Many people think that quite a few of those polititians are the actual criminals for aiding and abetting the grand poobah of criminals George Bush. As time will prove yet again, polititians will triumph by being untouchable (under “I can’t recall” ruse) and above the law.

    The hope is that some of the opinionated journalist of the day finish up getting caught in that legal net called slander.

  26. zut alors

    At last a good news story. Perhaps there is such a thing as justice. Then again…

    Way back when Rumsfeld described Hicks as “one of the world’s most dangerous terr 0rists” I fell about laughing. Such a great irony because the west’s worst terr 0rists appeared to be centred in Washington, DC.

  27. botswana bob

    I await the inevitable “comments” from Rupert’s ranters in that sheltered workshop THE AUSTRALIAN.
    And where is dear old Phil Rudick–that selfsame bloke who wasn’t concerned at water boarding–with his comments about Truth, Justice and the American Way??

  28. The Old Bill

    Speaking of Phil Rudick Botswana Bob, Does he still wear his Amnesty International Tie Pin?? That was the best sight gag in Australian political history. Who could forget Phil wearing his serious face and Amnesty pin all shiny for the cameras, whilst telling us that Hicks had somehow bought Western Society to it’s knees singlehandedly___________

  29. Patriot

    Actually, he’s very lucky he was captured and taken away to Guantanamo Bay. He would have faced the death penalty in Afghanistan for apostasy.

  30. shepherdmarilyn

    Patriot, that is just ridiculous you moron. He converted to islam.

  31. MJPC

    It’s interesting that the Howard Government deemed Hicks a criminal based on evidence obtained under torture, yet participated in an act of aggression, which would deem them as war criminals, when they participated in the undeclared war against Iraq (Howard the ever compliant lapdog of Bush). Possibly the Stalin saying at work “the death of one is a crime, te death of many is a statistic”.
    I concur with those here who believe this is an excellent result, not because Hicks was a fool being caught in a Taliban training camp, but because it shows that justice can be served if injustice is addressed by the right legal defence.
    As for the US military, if anyone believes that all is right and just in US Military justice then they are sadly deluded. The US Military has a long history of obtaining ‘evidence’ under duress. Many of the confessions accepted at Nuremburg in 1946 were obtained after physical and phsychological torture of the inmates being held. I daresay nothing has changed since then as was evidenced by the photo’s from Abu Grahib prison.
    The sad thing from this is that Julian Assange will be subjected to the same process if he is sent to the US, with little or no support from the current (or future?) government; now there is a crime!

  32. Paddy Forsayeth

    Blair Bush and Howard ought to have been (is it too late?) arraigned before the courts as war criminals. While Hussein was a bustard he was not much worse than many around to world then and today. These three criminals conspired to bomb and invade a sovereign country and kill, it is believed, in excess of 100000 people. Correct me if I’m wrong but the Israelis boarded a ship on the high seas and killed 10 people and still nothing has been done to redress this crime. It does seem that we dish out justice only to ‘enemies’ not to ‘friends’.

  33. zut alors

    @ Paddy Forsayeth: ‘It does seem that we dish out justice only to ‘enemies’ not to ‘friends’.’

    Apparently the US is eager to give a serve to anyone who takes their fancy, whether enemy or friend. We should remember the White H0use was very chummy with Hussein several years before they decided he was a blight on civilised society. Such a pleasure to see old photos online of Rumsfeld and Hussein warmly shaking hands.

  34. Patriot

    Shepherdmarilyn, he converted to lslam, then renounced it. That’s callled apostasy. It’s punishable by death in Afghanistan.

  35. Mike Smith

    @Patriot: Even renouncing under duress?

  36. geomac62

    I wonder if we have our own version of Gitmo ? What is the arrangement for the base in Darwin and has a time limit or lease been set . After all its nearly a century since the yanks granted themselves gitmo as reward for ” freeing ” Cuba after the false claim the Spaniards blew up a US navy ship . False claims that were created/encouraged by a media tycoon named Hearst , shades of Murdoch and Iraq . Will there be a no law law at Darwin as in Gitmo ? We already know that no marine will be facing an Australian court if accused of a crime no matter how serious . Thats part of the arrangement for any US base on foreign soil , no foreign court for their forces . With all the bases in the pacific I fail to see why one is needed in Darwin . Guam taken during spanish/US war , Diego Garcia , Korea and Okinawa must surely tick all the boxes . The Philippines may have a lesson or two worth noting regarding US bases on foreign soil .

  37. geomac62

    patriot or pap to trot
    The veracity or lack of it in your assertions have no bearing on innocence or guilt relating to retrospective charges laid against Hicks . Major Mori knew the charges were wrong and even the prosecutor Mo , whatever his name is said the eventual sentence was a political fix for Howard . The US courts said the military tribunals were legally flawed . The article relates to the commonwealth dropping action against Hicks in relation to his book sales . They would have as much chance of success in an action against howard for war crimes profit from book sales .

  38. listohan

    How independent has the DPP been in this case? Why leave it to the last minute to drop the case?

  39. 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!

  40. Johnfromplanetearth

    Hicks is one lucky man, i wonder what he thinks about the demise of his “lovely brother” Osama Bin Laden, does he remember this quote “The only true Muslims are those fighting” ~ David Hicks.
    Ask David Hicks this one question “what is the definition of the word infidel according to the Koran”? He can only give you one answer.

  41. 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?

  42. Mike Smith

    @John!fromplanetearth[1]: It means disbeliever, or one without faith. So what’s your point? I’d wear the tag infidel proudly.

    [1] note the use of the boolean ! meaning not.

  43. Liz45

    @MIKE SMITH – Me too, Mike. In fact, with the continued media coverage of the abuse of children by catholic priests and brothers, I find myself asserting this constantly. Have no time for any of them, regardless of their beliefs. I don’t think extremists of one group are any worse than the others. If John was trying to assert that, he’s conveniently looking through one eye only. If anyone in my family organises a catholic funeral for me, I’ll rise up out of ‘me box’ and bop them!

  44. Mike Smith


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