A welcome development to erase the stain of the ongoing “war on terror”. I look forward to hearing those in Australia who backed David Hicks’ incarceration and torture saying sorry for this terrible injustice:
David Hicks has enlisted legal experts in the hope of having his terrorism conviction quashed.
In the three years since his release from the US military prison at Guantanamo Bay, Mr Hicks has moved from Adelaide to Sydney, found a job and married. However, those close to him say he will be free only when his conviction has been overturned.
That would also pave the way for him to bypass proceeds of crime legislation and tell his story. It is understood a book is already with publishers.
A co-director of the Sydney Centre for International Law, Associate Professor Ben Saul, said he was advising Mr Hicks and there would be an approach to the US President, Barack Obama, some time in the future.
“While I cannot speak for him personally, I think any reasonable person locked up in Guantanamo for six years and subjected to an unfair trial process and facing every likelihood of being convicted on a retrospective charge would have pleaded guilty to get out of there,” he said.
”His alleged conduct was not a crime under the law of armed conflict or under United States law at the time of its commission. You can’t easily make an argument that his plea was voluntary and not coerced – and that renders it unlawful under international law.”
Mr Hicks, 35, was arrested in Afghanistan by Northern Alliance forces in December 2001 after he trained in al-Qaeda-linked camps. Several months later he was transferred to Guantanamo, where he spent five years in isolated detention.
Under a pre-trial agreement in March 2007, he pleaded guilty to a single, newly created, charge of ”providing material support for terrorism”. That conviction paved the way for an emotional return to Australia, where he served a further seven months in Yatala prison in Adelaide before being released in December the same year.
Questions have long been raised about the conditions under which Mr Hicks signed the confession. Associate Professor Saul said Mr Hicks had been monitoring developments in the US since Mr Obama criticised the military commission system, calling it ”an enormous failure”.
“There’s ongoing litigation in the US so that will eventually provide a definitive legal answer about whether US courts see it as retrospective or not,” he said.
”That’s one avenue that David will wait to hear about. If all goes well, it gives him a pretty good argument to go to the US President and ask for a pardon, which would be a way of eliminating it from the record.”
Joshua Dratel, a New York lawyer who has represented accused terrorists in federal court and at Guantanamo Bay, said, ”The military commissions that existed when David pleaded guilty have been recognised as fatally flawed. Indeed, the US Congress and President have already reformed the commissions to address some of the fundamental deficiencies and the prior system is no longer operational or valid. As a result, David’s conviction, obtained under a system that has since been repudiated, should be considered null and void.”
George Williams, a public law expert at the University of NSW, said Mr Hicks might get his wish sooner rather than later.
”I think the most likely next big breakthrough will be that Hicks’s conviction will be found null and void, and ultimately overturned,” he said.
”I know that from the ongoing saga that has been the US military commissions it’s fair to say they [the charges] remain vulnerable. If a challenge succeeds, he would be an innocent man.”
Mr Williams added: ”You can imagine it would have a massive impact on public perception of his case but also on his life in the long term … and let’s face it, the process in which he did plead guilty has always been seen as legally fraught.”
In the US, the feeling is that Mr Hicks could be in for a long wait. A congressional source said there were many other issues relating to Guantanamo that have ”a much higher priority than … revisiting the Hicks case, which has been adjudicated and considered closed”.
Mr Hicks would not speak to The Sun-Herald, but a spokesman said: ”Although David continues to live with the residual effects of torture, he is pleased that legal experts have reconfirmed that the conviction is void. Having the truth of his situation come to light has been an important step in the healing process.”