"Hicks should be released … He will not be given recourse to a fair trial under the US military commission, however it is constituted. There will be no presumption of innocence. The evidentiary tests are poor. And therefore this is a question of basic civil rights and civil liberties for all of us."
-Kevin Rudd, 2006.
There has always been much controversy surrounding the six years of illegal detention and ill-treatment of David Hicks.
The illegality and unlawfulness of the conviction and subsequent "plea agreement" signed by Hicks continues to surface.
Last month, the amended Military Commissions Act of 2009, was passed by the US administration, due to vocal international criticism from a vast number of legal experts and human rights groups.
Along with Australian Prime Minister Kevin Rudd, even US President Barack Obama criticised the military commissions under the 2006 act as being deeply flawed, unfair and an enormous failure.
So, what do the changes to the Military Commissions Act and the mounting evidence of torture and ill-treatment mean for Hicks? More to the point, is it now time for the Australian government to ask the Obama administration to issue Hicks a pardon and formally render the conviction invalid in Australia?
First, some facts about the Hicks case that have not been well publicised.
Hicks did not, and has never, "confessed" or admitted to supporting terrorism. Hicks pleaded the Alford plea, which is codified under US Criminal Law. This means that he pleaded guilty, but did not admit guilt to the accusation against him, which was providing material support to terrorism (ie. "I will plead guilty to get out of here, but I didn't do it").
In the charge sheet, the US did not accuse Hicks of hurting anyone, being involved in any terrorist attack or its planning, or knowing of any terrorist attack.
In fact, it has been shown in the interviews made public by the Australian Federal Police that Hicks disagreed with violent terrorist acts and definitely does not believe in targeting civilians. He said he went overseas to help people, not to harm them.
Hicks was convicted of "providing material support to terrorism". This charge was invented during the administration of then-US president George W. Bush, and is not a legitimate war crime.
Recently, Lt. Col. David Frankt and US Assistant Attorney General David Kris testified to the US Senate Armed Services Committee that "material Support" should not be in the 2009 act as it is not a traditional war crime, and would likely be overturned on appeal in a regular court.
The charge itself was applied to Hicks retrospectively, which flies in the face of the rule of law and international fair trial standards.
The political interference into US military commissions has highlighted the illegality of the conviction. Bush administration prosecutor, and staunch Republican, Colonel Morris Davis resigned from his position in large part due to the political interference in the Hicks case.
Davis said that, if it were up to him, he would not have charged Hicks at all.
In addition to this, a Dick Cheney staffer revealed the political deal done between Cheney and then-Australian prime minister John Howard to secure a plea agreement on Cheney's visit to Australia in February 2007.
In other words, the process was entirely politically rigged to obtain a conviction.
The provisions of the plea agreement that were, and still are, imposed on Hicks include:
· A clause to say that Hicks pleaded guilty voluntarily, of his own "free will";
· A gag order preventing Hicks, friends, family, or any other third party on his behalf from speaking with the media for one year (this expired in March 2008, but Hicks is still subject to proceeds of crime legislation);
· A clause saying Hicks has never been illegally treated by any person whilst in US custody;
· The waiving of all Hicks' rights to appeal or collaterally attack his conviction, sentence or any other matter relating to the prosecution;
· The agreement that Hicks will "cooperate fully", by giving interviews with US and Australian law enforcement officials for the rest of his life;
· All profits Hicks may be entitled to receive through, for example, publishing books or media interviews be given to the Australian government; and
· For the term of Hicks' natural life, the US may detain him in any country outside of Australia as an "unlawful enemy combatant".
The fact remains that the plea "agreement" would not hold up in any court due to the fact that it was signed under duress and can't be considered voluntary.
This is especially apparent when we consider the growing evidence of the torture and ill-treatment, that Australia was complicit in, and the appalling conditions of confinement within Guantanamo.
Obama has refused to release photos depicting interrogations (which would more than likely include photos of Hicks). But he has released, albeit heavily edited, memos which outline interrogation techniques endured by those in US custody.
Some of the techniques included: mock executions; being threatened with weapons and power drills; threatening to rape and kill family members; and the exploitation of the detainees fears.
We have not heard Hicks' story yet. But we do know from former detainees, lawyers, human rights groups and his 2004 affidavit, that he was subject to torture and abusive treatment contrary to the Convention Against Torture, and therefore any agreement should be held as invalid.
In any event, the Military Commissions Act was changed because the Obama administration admitted that the system was unfair and did not afford internationally recognised fair trial standards.
Even our own Attorney-General Robert McClelland commented (while in opposition) in 2003: "The Howard Government is devaluing our citizenship with its support for the trial of David Hicks by a US military commission at Guantanamo Bay" because its practices are "alien" to "Australians' expectations of a fair trial …"
If the 2006 act was changed due to it being inherently unfair, discriminatory and not affording internationally recognised fair trial standards, Hicks' conviction was therefore unlawful and illegal.
The Australian government should formally recognise the invalidity of the conviction in Australia, and seek a pardon for Hicks in the US.
What is readily forgotten is that Hicks is still subject to a suspended sentence and lives with the stigma and vilification attached to a false terrorism-related conviction.
There is no better time for the Rudd government to right the wrongs of the former Howard government by asking for Hicks to be pardoned, and formally recognise that the conviction is invalid in Australia.