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.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

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.

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