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.