He was processed through a military commissions system that is so unjust the governments of the United States and United Kingdom will not subject their own citizens to it.
However, the Australian Government allowed David Hicks to remain imprisoned for more than five years, without valid charge, only to be processed in an unfair and unreasonable system.
In its Executive Summary, the US Manual for Military Commissions states that it affords all the judicial guarantees that are recognised as indispensable by civilised people.
In late January, the Australian Lawyers Alliance put together a panel of expert lawyers to monitor the new regulations announced by the US Office of the Military Commissions.
We took the step of establishing the review panel given the failure of government officials to support an Australian citizen in foreign legal proceedings.
In our opinion, it was quite clear from the beginning that the rules Hicks would be tried under amounted to little more than a kangaroo court.
There are three major points that need to be made about the rules of the military commission. Firstly, the charges laid against David Hicks were allowed to be retrospective. Secondly, hearsay evidence was allowed. And thirdly, evidence gained under coercion was admissible.
In the end, it did not matter. David Hicks got out of there any way he could.
The charges he faced were, from a legal perspective, a worry as well.
The offence of 'providing material support for terrorism' is clearly retrospective in its application to David Hicks. Proceeding with a trial on the basis of this charge was in clear violation of international treaties to which Australia and the United States are parties and contravenes the Australian Criminal Code.
David Hicks ended up agreeing to a plea bargain, where in exchange for a guilty plea, he would be able to come home and spend the remainder of his nine-month sentence in an Australian jail.
Adelaide lawyer Stephen Kenny, who represented David Hicks for three years from 2002, said although he was surprised by the guilty plea, he could understand the circumstances that may have led to the outcome.
David Hicks had been incarcerated for more than five years when he appeared before a military commission, and if he or someone else had challenged the validity of the system he was being processed by, it could have seen his trial suspended indefinitely.
He has agreed to not communicate with the media for a year and stated he had never been illegally treated while in US custody.
David Hicks cannot sue due to the conditions he faced while incarcerated, must pretty much stay in Australia for fear of further arrest, and admit he pleaded guilty voluntarily.
Since this deal was made the Australian Attorney-General, Mr Philip Ruddock, has admitted the gag order on David Hicks would not be enforceable and the US would only be able to act on any breach of the agreement if David Hicks came within their reach.
The Australian Government's inaction over David Hicks' ongoing incarceration, and the way his time in Guantanamo Bay came to an end, is a threat to the human rights of each and every Australian.
About the Australian Lawyers Alliance
The Australian Lawyers Alliance is an association of lawyers and other professionals dedicated to the protection and promotion of justice, freedom and the rights of the individual. Its members work in the areas of personal injury law, criminal law, immigration law, Indigenous law, elder law, employment law, laws affecting human rights and all types of law where ordinary people need assistance against the legal tactics of the state and big corporations.
This article was first published in the June/July 2007 issue of the Human Rights Defender, AIA's bi-monthly publication and was writen by Simon Morrison, National President of the Australian Lawyers Alliance. He has been a practising solicitor for 15 years.
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