David Hicks – Free At Last
November 21, 2008

Australian Federal Police said yesterday that they will not seek to extend an order limiting the movements of former Guantanamo Bay inmate David Hicks.

Hicks, a poorly educated Australian citizen, father of two and a convert to Islam, left home in Adelaide on November 11 1999 to go to Pakistan the gateway to Afghanistan. Hicks had previously been in Kosovo (again on a side allied to the West).

Hicks was entitled to go to Afghanistan; there was no Australian law banning him. But it was a foolish thing to do given the conflict then underway. It was also an irresponsible because he had two children and wife left back in Adelaide. But, then, his life had not amounted to much anyway.

He did not kill anyone while in Afghanistan. He was arrested while fighting with Taliban forces against the US-backed Northern Alliance in Afghanistan in December 2001 (ie almost four months after Osama bin Laden’s al-Qaeda attack on “9/11”). Hicks was held on Guantanamo from January 2002. He was a co-operative detainee and did not cause any trouble. Hicks was the only “white” person in detention and so diluted the impression that the centre is only for non-English-speaking people (which it is). Hicks probably had more in common with the American guards than with the fellow inmates; Hicks did not speak Arabic and was not a fanatical Muslim.

The Howard Government did little to help him.

No US citizens were held there; they were tried on the US mainland in the usual courts eg John Walker Lindh who was sentenced to 20 years. British subjects were sent back to the UK. The English Court of Appeal called Guantanamo “an illegal black hole”; the British Government thought it was counter-productive because it added to anti-US feelings around the world.

What offences did Hicks commit? The US Government was not clear. Some of the original charges were: conspiracy, attempted murder by an unprivileged belligerent and aiding the enemy; in August 204 Hicks pleaded not guilty to all the charges; “attempted murder” makes no sense in a war zone.

In the end Hicks pleaded guilty to a charge of material support for a terrorist organization (all the other charges were dropped for want of evidence). This charge does not exist in the international law of armed conflict. It was a retrospective law. The US’s “War on Terror” is open-ended and we will not know when the end has occurred. There is no clear identification of the enemy. If the other detainees were to wait until the end of hostilities to be repatriated they could spend the rest of their lives on Cuba.

Why didn’t the Australian Government do more for Hicks? Initial public opinion was not on Hicks’ side; the Government had little incentive to act. The Howard Government immediately assumed that Hicks was guilty of something and so it was critical of him from the outset; it did not seek to find out more about the situation in an objective way. Australia is more pro-US than the UK and more loyal, and so it did not want to seem to be disloyal by insisting that Hicks get the same treatment as given to the UK detainees.He had not broken any Australian law. The Government would not introduce any retrospective legislation to cover him.

Hicks himself may be a “deadbeat dad” running out on his family, but his own father was a great campaigner on his son’s behalf. Hicks’ father and human rights non-governmental organizations (eg Amnesty International and International Commission of Jurists) kept up the campaign to see that Hicks got a fair trial. Some Government MPs also urged the Howard Government to do more. Eventually public opinion started to change.

A deal was done for him to be transferred back to a South Australian prison. Hicks served longer than most Australian POWs held during the two world wars.