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About-face on Hicks a victory for the bullied

by Mary Kostakidis

So the Australian government has shot itself in the foot while aiming at David Hicks. It would be funny if it weren’t so appalling.

The withdrawal of the dubious literary proceeds of crime action against Hicks raises questions the Commonwealth DPP has not fully answered. Why was the case dropped? What new material was presented by Hicks that prosecutors were unaware of when launching proceedings?

The DPP’s statement acknowledges the plea Hicks entered in the US – an ”Alford plea” whereby a defendant is able to acknowledge the evidence without admitting commission of the offences charged – ”is not recognised in Australia”. Furthermore, the DPP was unable to ”satisfy the court that the admissions should be relied upon”, and the defendant ”served evidential material not previously available to the CDPP & AFP”.

'Alford plea' ... David Hicks.
‘Alford plea’ … David Hicks. Photo: Jacky Ghossein

Egged on by the shadow attorney-general, George Brandis, who, thanks to the plea bargain orchestrated by John Howard, can refer to Hicks as ”a convicted terrorist”, the DPP’s decision to commence proceedings seemed extraordinary at the time.

In Australian law, evidence of a confession is not admissible unless the court is satisfied the confession was not influenced by violent, oppressive, inhuman or degrading conduct, or by a threat of conduct of that kind.Does anyone believe this is not precisely how confessions were extracted at Guantanamo Bay?

However, what we ”believe” is not the point. The point is that it was about to be proved in a court of law, as the DPP’s actions demonstrate.

All the evidence pointed to the fact Hicks’s statements about what he had done in Afghanistan were the result of mistreatment by the Americans. Indeed, Hicks’s book goes into painful detail on that very subject, and on his attempts to get help from Australian authorities who were aware of his treatment. He has come dangerously close to proving this in court.

From the start, it must have been blindingly obvious to the prosecutors that the evidence they relied on to establish what Hicks had done was evidence produced by torture and oppressive treatment. The only conclusion to be drawn is that the government was banking on Hicks’s poor psychological state and underestimated the support he would receive to obtain a just outcome under Australian law.

This episode is an example of what happens to bullies when someone stands up to them. The actions of the Australian government in Hicks’s case have been reprehensible, with no difference between the approaches of the Howard and Gillard governments. He has not been able to recover from what is now a 10-year ordeal.

The sad facts are that the Howard government would not bring Hicks back to Australia because he had not broken any Australian law. He had not broken any American law either. He was ultimately given the choice of pleading guilty to a trumped-up charge under a retrospective law, or staying in Guantanamo Bay indefinitely.

After five years at Guantanamo, Hicks was close to killing himself. He signed on the dotted line. Upon finishing his sentence -handed down by a subsequently discredited military commission – in South Australia’s Yatala prison, he wrote Guantanamo: My Journey. I hope this now means the book will again become available.

The Australian government’s approach to Hicks is now being echoed in its treatment of Julian Assange. Accusations of ”wilful blindness” on the part of our government are growing. Ironically, Assange is now also being represented in Australia by Julian Burnside, QC, who represented Hicks in the literary Proceeds of Crime action. Burnside has written to the Attorney-General, Nicola Roxon, with very specific questions about what the government knows about moves in the US to indict Assange, and what measures it is taking to protect his rights. His detailed letter went to some lengths to set out the known facts. The response was the usual claptrap about knowing nothing.

The only conclusion to be drawn, says Burnside, is that the government is aware of American plans from which Assange needs protection, or it has suspicions about American plans and prefers to turn a blind eye.

They are banking on our lack of interest to get away with it, again.

Published in the Sydney Morning Herald on the 24th July, 2012: http://www.smh.com.au/opinion/politics/aboutface-on-hicks-a-victory-for-the-bullied-20120724-22n3x.html#ixzz22LgPMU00