After nearly 10 years, military trials at the Guantanamo Bay Detention Camp have produced a total of six convictions. One of those was David Hicks, who agreed to a plea bargain under which he would be sent back to Australia to serve out his sentence. On his release, he wrote a book about his experiences. Under “proceeds of crime” laws, the earnings from books about a criminal career are liable to confiscation, and the Australian government accordingly froze the proceeds and took action to have them forfeited.
The news today is that the Director of Public Prosecutions has abandoned the actions and paid Hicks’ legal costs[1]. Although no rationale was given, the general presumption is that the US conviction would not stand up in an Australian court, either because (as Hicks alleged) Hicks’ guilty plea was extracted by torture, or because the whole system failed to meet basic standards of due process.
Most simple of all is the fact that, unlike the usual case of plea bargaining (which is problematic enough), the options aren’t pleading guilty or going to trial. Rather those who plead guilty get a definite (and usually relatively short) sentence on top of their detention, while those who do not are held indefinitely without trial. All of this is relevant now that the Obama Administration is trying to “normalise” the plea bargaining process, by getting those who have pleaded guilty to testify against others accused of more serious crimes. Evidence extracted under this kind of duress is obviously worthless.
None of this proves that Hicks was innocent, either morally or legally. But that’s an inherent problem in a corrupted legal process. Since the trials are rigged in such a way that they can never produce an acquittal (those who might be acquitted are simply kept in detention without charge), a conviction doesn’t prove anything[2]. Morally, Hicks’ eagerness to go to war in any cause that would take him (he applied to join the Australian Army after returning from Kosovo) is pretty repugnant, but those who gave us Gitmo and the Iraq War are in no position to throw stones.
fn1. The only other Australian detainee, Mamdouh Habib, was threatened with similar action, but this did not proceed. He eventually received a substantial (but secret) settlement in return for dropping claims against the Australian government for its alleged involvement in his torture.
fn2. This is a problem even in the standard plea-bargaining system and has given rise to something called the Alford plea, apparently used by Hicks. The accused pleads guilty for legal purposes, while maintaining their innocence of the alleged crime.
John Quiggin 
“Morally, Hicks’ eagerness to go to war in any cause that would take him (he applied to join the Australian Army after returning to Kosovo) is pretty repugnant…”
True, but hardly unique and lower on the scale of moral repugnance than the many Australians working as mercenaries for the ‘security contractor’ industry on the fringes of the West’s wars of choice. Hicks’s brief military career started out with the Kosovo Liberation Army, which was at the time portrayed in our media as a band of heroes, but which we now know to be a mafia franchise and which was back then with much justification seen by Belgrade as a terrorist outfit. Just a few hundred km away from Kosovo, there were then and are now plenty of Australians serving in the Israeli military, many of whom will return to Australia and be feted for their activities.
The trouble with the case against Hicks always lay with the fact that, at the relevant time, what he was doing wasn’t an offence under Australian or US law. Retrospective application of criminal law is repugnant both legally and morally, and yet that is what he was convicted of.
About time and all. A complete disgrace the Australian government and government agencies complicity in the American government’s crimes against an Australian citizen, however foolish in his youthful idealism he may have been to have been in the wrong place with the wrong people at the wrong time. While the confiscation of the proceeds of crime is good legislation, no crime had been proven in a competent court, and no Australian court ought to have recognized the travesty of a confession obtained under extreme duress. Moreover, even if he had been convicted by a competent court of some crime, little if any proceeds of the book could be identified as the proceeds of crime as interest in the book was not primarily connected to any crime in the way it is in other cases. The real interest in Hicks book was not in any crime allegedly committed by Hicks but was in those crimes committed against him and others by the US government. Those crimes will never result in a single trial.
Now we have the continuing travesty of the Australian government once again complicit with the US government, this time against Julian Assange.
One wonders what the Bush-Howard administration-coalition would’ve done about the Julian Assange situation if inventing laws to retrospectively convict someone was almost par for the course.
A lot of the post 911 American laws should not be recognized internationally because those laws extend US jurisdiction to every person regardless of whether they are American or not, in any place in the world. Another reason governments ought to be reluctant to recognise these laws is that they are extremely sweeping, and hence to avoid applying to a vast legion their application is subject to considerable discretion. When everyone is guilty but only those an executive selects are prosecuted you essentially no longer have rule of law. Having abandoned rule of law the US is well on the way to being a failed state, or maybe is already there.
If the DPP has admitted that Hicks had not broken an Australian law under what law was Hicks gaoled in Adelaide? He should have been freed on return to Australia.
These are the squalid loose ends of George W. Bush’s moronic “Global War on Terror” and of John Howard’s obsequious collaboration in this disastrous folly.
And Australians should not forget that US Military Commissions — the kangaroo court process under which David Hicks was tortured to confess his guilt — are accorded the status of genuine judicial processes under Australian law.
The Military Commissions of no other countries are accorded this status.
David Hicks may get his money but the source of this injustice remains until this legislation is amended.
Why has the ALP government allowed this legislation to remain on the books?
A sane decison.
Yet, politicians never learn.
In the wake of 4Corners this week the federal politicians have fled like pigs from a gun, as to Julian Assange’s case.
And they wonder why their poll numbers have dropped to 28%?
You would hope that this judgement gets maximum publicity in the US, just as the migration of Hicks’s defence lawyer, ex-marine Major Mike Mori to Australia might also.
Through all this mess I hope even the most politically partisan will acknowledge that there is not a cigarette paper’s difference between how far up the US’s bumhole both labor and libs are.
The people running the entire operation proved themselves dangerously incompetent and wilfully reckless, yet they have not had to answer for their crimes in court!
@David Allen
Yeah, enthusiastically cheered on my our wonderful MSM as testament by the recent ridiculous reaction to Bob Carr’s comment on US decline.
The suggestion that the Australian government is complicit with the US government in the Assange case doesn’t withstand detailed analysis.
Some people in the Australian government may have said some stupid things about the Assange case, but making stupid remarks doesn’t make by itself make you complicit in anything, even if there is anything to be complicit in.
J-D,
Surely you would agree that, at the very least, the Australian gov has adopted a “don’t ask don’t tell” approach to the question of US plans for Assange?
They don’t ask, apparently, then they say they ‘have no information’ that the US has any plans for Assange.
The SEARCH Foundation has published, in booklet form, a collection of articles on the economic and political crisis in Europe, titled Capitalism in Crisis: Europe, Austerity and the Left, 2012.
http://www.search.org.au/archives/3184
I wonder what that loudmouth and legal luminary the Hon Senator Brandis QC has to say given it was his view that, “There appears to be little doubt that, whether under Proceeds of Crime Act or the plea agreement, the royalties earned by Hicks from his memoir are recoverable by the Australian government”.
Well Senator, you are wrong, again.
Even if the Australian government hadn’t asked the US government any questions about Julian Assange, I don’t see how that makes it ‘complicit’ in anything, even if there is anything to be complicit in.
The Australian government says it has asked the US government. See here:
http://www.abc.net.au/news/2012-06-24/carr-says-us-has-no-plans-to-extradite-assange/4088862
@David Allen
Actually they are fighting over who gets to hold the cigarette paper.
The USA already has provision for dealing with this, and a similar situation is often cited as one of their great founding moments. The whole “no taxation without representation” is great, it means that even illegal immigrants in the USA can vote as long as they’ve paid even the tiniest jot of tax to whoever is holding the election. It should be quite simple to extend that to cover anyone within US legal jurisdiction. Which, as I understand it, is the entire world with a few minor exclusions like Guantanamo Bay.
Actually I’m full of shit, that’s not the way it works at all. The USA holds itself *above* all international law and precious few people get to vote for its government, even among its own citizens. You don’t really expect them to let scum like us influence their government in any way?
@J-D
The Australian government has turned its back and walked away from Assange, an Australian citizen. Our foreign minister has disingenuously claimed there is no evidence of the plans the US has for him. Of course the Australian government is complicit. Their treacherous behavior is disgusting, even if all too predictable.
Reiteration adds no merit to your assertions.
There is a better way to deal with captured terrorists.
The conflicts with al-Qaeda and the Taliban are governed by the laws of war.
These laws of war have long permitted detention without charge or trial until the hostilities have ended. It is pious to deny this. The Allies detained millions of POWs (and captured enemy personnel) without charge or trial by the time World War II ended.
The purpose of this wartime detention, both in 1939-45 and now, is not to punish but to prevent return to the battlefield. Some of the other detainees who have been released from Gitmo have returned to the battlefield.
Who is detained until the hostilities end is decided by Combat Status Review Tribunals under Article 5 of the Third Geneva Convention. These were also convened, for example, in the Vietnam War to decide the status of captured Viet Cong and army of North Vietnam soldiers. Only the latter were entitled to prisoner of war status.
The fact that Hicks was accepted into the ranks of al-Qaeda (or the Taliban) does not say much for their standards for recruitment and background checks or their fighting effectiveness. You wonder about the quality of the terrorist wanbees they turned away? I was surprised that al-Qaeda or the Taliban did not shot him out of hand as a possible spy.
Which “laws of war” are you talking about?
So far the US and it’s allies have thrown all laws out the window.
“Laws of War” complete bunk. The US was making it up as it went along. It was a terrorist act and rather than go on an indiscriminate rampage dragging numerous other compliant countries into its orgy of mass murder the US should have captured and brought to trial those members of the terrorist organization it so foolishly created. If the US were to refrain from its habitual meddling in other countries’ affairs all its problems would be internal.
That is those members responsible. Most probably knew nothing about the plot.
@Moz
As Chomsky just reiterated in the Guardian, one of the many reasons the colonial rabble rebelled was a fear that the illegality of slavery in the UK would be extended to the colonies. Of course a fanciful and self-serving rewrite of history neither started nor ended with the Americans.
@J-D
But I will thank-you for that reiteration nevertheless!
I liked the post and enjoyed reading it. This post was very well written with the complete and proper details. Thanks for sharing.
At least Hicks got home. You should be happy that the Australian Government actually seemed concerned about its citizen.
Here in Canada we have the edifying situation of Omar Khadr. Khadr http://en.wikipedia.org/wiki/Omar_Khadr was a 15 year old when captured by US troops in Afghanistan in 2002. He did plead guilty, and only after 8 years of illegal detention [1]. I don’t put a lot of faith in the guilty plea.
His legal team is suing the Canadian Government for the second time, or is it a third time, trying to bring him, a native-born Canadian citizen, home.
After 10 years of imprisonment, combined with a little torture now and again, the Canadian Government is still refusing to bring him home. The Canadian Federal Government apparently has a repatriation agreement with the USA on this but is dodging it.
The Minister of Foreign Affairs says he has to evaluate the security ramifications. Duh, he’s had two years since the apparent agreement with the USA.
1. if nothing else he should have been treated as a child combatant under the Optional Protocol to the Convention on the Rights of the Child to which I believe the USA has signed
jrkrideau, there is probably a racial tinge in it as to Hicks, a white person and more easily identifiable as “one of us”, not that by any normal standards he did any thing so wrong as to merit the treatment he received.
On a related issue, it seems true that adverse security assessments have created problems for some asylum-seekers arriving here by boat from war zones. They seem either remain in detention indefinitely if they’re not given the boot, depending on whether or not government or activists are challenging some aspect or other of the laws in the courts.
It seems this murky “security” stuff is now world-wide and usually furtive and pernicious.
nothing more like this, please – side disputes should in any case be in sandpits, I’ll open another one
Rog, either you have not heard of the Third Geneva Convention or you are pretending you have not understood what it means for why prisoners of war are prisoners of war.
Hamdan v. Rumsfeld was about military commissions not complying with the Uniform Code of Military Justice and the Geneva Convention. You seem to have missed this and other litigation over Gitmo and the laws of war.
Bush 43 did throw out the long-standing rule of international law that francs tireurs, upon capture, could be subjected to the death penalty.
Francs-tireurs are entitled to prisoner of war status provided that:
• they are commanded by a person responsible for his subordinates,
• have a fixed distinctive sign recognizable at a distance,
• carry arms openly, and
• conduct their operations in accordance with the laws and customs of war.
Francs-tireurs that do not conduct themselves in according to Article 4 of the Third Geneva Convention are liable to a field court-martial and immediate execution.
Be careful for what you wish for when demanding strict compliance with international law.
See http://en.wikipedia.org/wiki/Hostages_Trial
p.s. Many countries have established schemes for the transfer or repatriation of their citizens who are imprisoned elsewhere in the world – see http://www.ag.gov.au/Internationaltransferofprisoners/Pages/Listofparticipatingcountries.aspx
J-D,
Thanks for the link! It contains the exact weaselly-worded phrase I was thinking of:
“They haven’t said they have plans to extradite him. They haven’t been able to rule out that one corner of the American administration might not be considering it,…”
If anyone takes that as a genuine ‘Q&A’ resulting in a verdict of “good enough for me!”, then I have a Rupert Murdoch promise on ‘poison pills’ to sell them.
I stand by my original point, that is: the Aus Gov’s REAL position is ‘don’t ask don’t tell’ with a touch of plausible deniability thrown in.
What the US said in answer to the question may be weaselly, but how is that the Australian government’s fault? If we ask and they won’t give a straight answer, what are we supposed to do? Declare war?
What is the Australian government to do?
Recognise that the US weasel words are as good as an admission and protest loudly spelling out the dim view that Australia would take if the US was, in fact, planning to treat an Australian citizen in such a reprehensible manner. That instead the foreign minister echoes and accepts the weaselly words that the US hasn’t indicated any intention and so on, is simply disingenuous, and is active collaboration with the US.
Carr is a bad choice as foreign minister due to his well known long standing love of all things American. With such an abiding devotion this increasingly rogue foreign power no-one could expect him to ever stand up to the US when necessary in the best interests of Australia or Australian citizens.
Even if the US government is planning to make a request to have Julian Assange extradited, how is that reprehensible? Extradition requests are a legitimate procedure. If the US ever does make a request to have Julian Assange extradited, it will have to present a case to the legal authorities in whichever country it’s requesting his extradition from, and that country will have to determine legally whether the US case has been adequately made out. I can’t see which action it is that you think is reprehensible.
@Jim Rose yes Jim, so you have found Wikipedia and you can read.
The situation now is that the US govt is able to and has passed laws that sanctions US actions against non citizens in non US lands.
@J-D
“Extradition requests are a legitimate procedure.”
No. You’re wrong. An extradition request can be a legitimate procedure. The procedure is not of necessity legitimate.
rog, There is no legal reason why a nation at war must try to apprehend an enemy instead of shooting at him first. Every member of the enemy forces and leadership is a legitimate target in wartime, regardless of whether they can be caught or whether they pose an imminent threat.
If an attack comes from abroad, we are at war – the state of war is created by the enemy’s attack, and enemies can attack by surprise. The power to wage war is the power to wage war successfully – to pursue, engage and quell the enemy wherever they may be.
Wars are against other countries and often take place in other countries and involve non-citizens. Attacks from within are insurrections.
The 9/11 attack originated from abroad from a organised group so that is why U.S. is sending forces aboard to quell and deter further attacks. The direct equivalent is with suppressing pirates and those that harbour them.
The first war of the U.S. was with the Barbary Pirates in the 1790s. Their leaders waged war against the shipping of other nations, seized cargos and ships, and sold captives into slavery.
p.s. David Hicks has that rare gift of wandering around in a daze in some of the most dangerous places in the world and living to tell his story.
@Freelander
Canada has had this problem. If one googles “Leonard Peltier” you get things like:
Leonard Peltier was extradited on the basis of fabricated evidence of a supposed eye witness. The United States government has subsequently acknowledged that the affidavit evidence was fabricated.
The Peltier case was a highly political one and the US Justice Dept lied to the Canadian court.
I suppose possibly the procedure can be abused. In this instance, plainly, the US has not yet abused the procedure since the US has not yet lodged any extradition requests.
If there were any evidence that Sweden was abusing the procedure, Assange and his legal team had the opportunity to present that evidence in the UK courts. The UK courts heard Assange’s case and ruled the other way.
Even if the UK court judgements were utterly wrong and without foundation (and I haven’t seen any reason to think so), how is Australia complicit in that?
@Jim Rose Shorter Jim Rose on lawful war
1 define or identify an enemy
2 declare war or maybe
3 not declare war
4 conduct war.
Breaches of the Jim Rose war law are sometimes called war crimes however prosecuting war crimes is another matter as they are not subject to law.
@J-D
Australia has refused to seek assurances against extradition from either Sweden or the US. They have taken an almost comically low profile and leapt about every which way to avoid receiving any advice from either government that would face them to act. It is unsurprising that the Gillard government has taken this position when you remember that Gillard actually declared Assange guilty of, umm, well something or other. When the Federal Police investigated they found that something or other the prime minister dislikes is not an offence in terms of Australian law.
Sweden has a history not only of improper extradition but of extraordinary rendition. Assange has not actually been charged with anything in Sweden. Officially the Swedish prosecuting authority only wants to question him in relation to the sexual assault allegations. The UK courts refused to look beyond the European arrest warrant, issued by a prosecutor not a court, and ocn ethey ahd taken position the outcome was inevitable.
rog, who attacked whom on 9/11?
the renegade Left forgets that in response to the 9/11 attacks, the UN security council passed resolutions 1368 (12 September) and 1373 (28 September), which explicitly recognised the “inherent right of individual or collective self-defence” of member states and further defined the 9/11 attacks as a “threat to international peace and security”.
The truth is that most renegade leftists were committed to opposing the war, and they were prepared to oppose it without regard to its causes or character, and without any visible concern about preventing future terrorist attacks.
Your alienation is radical. How else is there the unwillingness of you and the rest of the renegade Left who, after all, live here, and whose children and grandchildren live here, to join in a serious debate about how to protect against future terrorist attacks?
HT: micheal walzer
All those who actually did the ‘attacking’ on 9/11 died in the attack. Others who supported that attack before the fact seems to have been a relatively small number. The attack was a criminal enterprise and in no way justified a murderous rampage of the scale that followed against large numbers of people who had nothing to do with the attack, by a so-called ‘super’ power, the US, which also managed to ‘dirty up’ the most of the rest of the West by dragging them together in its rampaging posse.
The whole post-911 adventure was badly thought out and the reaction created the current ‘Islamic’ threat that we now have. A more circumspect and more calmly thought out approach would have been so much better. However, that would have required moral leadership, but morals and leadership seem never to have been so lacking in western democracies, and with most of the American public baying for blood circumspect moral leadership stood no chance of being delivered.
The hysterical reaction of the US and allies to 911 has done considerably more damage to the West than the initial attack did.
The best defence is to not have people who wish you harm, and something the US as a fading power should recognise is that one way of minimising those numbers of people who wish you harm is to avoid going out of your way to provide people with a reason to wish you harm. Sadly, instead we in the west have been going out of our way to do the opposite.
But In September 2001, George W. Bush simply demanded that the Taliban deliver Osama bin Laden and destroy bases of al Qaeda. This was an appropriate demand, i.e., the extradition of an accused criminal. Presumably, if the Taliban government in Kabul had acceded to these demands, there would have been no additional Afghan war.
In reply, the Taliban regime offered to try Bin Laden in an Afghan court, so long as the United States provided what it called “solid evidence” of his guilt. This, too, is an appropriate response, because Osama bin Laden may have commited crimes on Afghan territory. Moreover, Kabul stated it was prepared to incorporate US complaints into any legal action
Precipitately, the Bush regime refused to accept the legitimacy of Afghan legal procedure. The regime stated that it refused to hand over its evidence to Kabul.
The Bush regime therefore backed itself into a contradictory situation. It conceded that Kabul had effective control over the governance of Afghanistan to effect the apprehension and extradition of OBL, yet refused to recognise the legitimacy of Kabul’s judicial system. Therein lies the central contradiction of the Bush regime folly in Afghanistan.
Now, more than a decade later, Bush’s successors are seeking ways to grasp the painful nettle of conceding to the Taliban a legitimate role in the governance of Afghanistan. The Bush regime bit off much more than the US can chew. The US continues to choke on Afghanistan.
If only the Bush regime had shown a little respect and patient, perhaps Bush’s legacy would have been slightly less risible.
Of course Australia has not sought assurances against extradition. On what basis, ever, could country X (Australia in this case) ask any other country (Y) not to pursue legal proceedings? Because the responding party in the legal proceedings is a citizen of country X? Why on earth would country Y be expected to regard that as sufficient grounds for dropping the matter? If the Swedish government asked the Australian government to give guarantees that it would not institute extradition proceedings against a Swedish citizen, what would you expect the Australian government to do? I can tell you what I’d expect: I’d expect the Australian government to reply by saying that Australian courts and prosecuting authorities are politically independent and that the government will not interfere in their decisions. The Swedish government should expect that, too, and would therefore best avoid looking foolish by making no such request. It’s the same when the boot is on the other foot. If the Australian government asked the US government, or the Swedish government, or the UK government, or any other foreign government to give guarantees of the kind you’re talking about, it would just make Australia look foolish.
I have looked at the judgement of the High Court of England and Wales, which can be found online at this URL:
http://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html
The High Court of England and Wales decided, contrary to what you suggest, that it would look at what it called ‘extraneous evidence’ and not just at the warrant. It found that, taking into account the differences between the stages in the Swedish system and the stages in the system of England and Wales, the proceedings against Assange in Sweden had reached a point equivalent to ‘being charged’ in the system of England and Wales, and that the extradition requirement that Assange be ‘accused’ and not just ‘suspected’ had been met.
The court also found that the Swedish prosecutor who issued the warrant had the required status of a ‘judicial authority’ and also that the prosecutor’s action had been subject to independent scrutiny by Swedish judges in the Svea Court of Appeal.
I can’t find anything wrong in the court judgement. But even if there is serious error in the judgement of the High Court, that judgement is not an action of the US, and it’s also not something in which Australia is complicit. If the Australian government complained that the judgement of the High Court of England and Wales was wrong, it could expect no better results than would follow if the UK government complained that an Australian court judgement was wrong.
@Katz
It was even worse. The Taliban offered to hand Osama over to The ICC in The Hague for examination, but Bush rejected the offer, one assumes because
a) He’d look weak in front of his own folks
b) The US doesn’t recognise the ICC, because if it did it would have no basis for not handing over Oliver North and his gang for trial.
c) He wanted to invade Afghanistan and make someone pay.
The American public wanted blood. That many innocents would be part of quenching that thirst was not a concern.
A fair trial with evidence demonstrating guilt beyond a reasonable doubt is simply not the American way.
Rather the American way is one of kill lists and drones,immunity from prosecution or judicial review,enhanced interrogation, extraordinary rendition, collateral damage, persecution of whistle-blowers and a complacent and compliant media. A place of gun deaths at home and worse deaths away.