Every Australian Senator and Member of Parliament should take note of this monumental error by the former Howard Government, its prime minister, ministers and backbenchers – which included Prime Minister Tony Abbott - and the failure of domestic national security agencies to offer advice based on law and fact.
What this clearly demonstrates is that an Australian Parliament when passing anti-terrorism/national security legislation and, a Federal Government when creating policy in relation to terrorism/national security or responding to citizens held by foreign powers, need to eschew any tendency to hysteria and block their ears to dog whistling in the media when considering legislation before the House of Representatives and/or the Senate or the circumstances of individual citizens.
Governments make mistakes and giving them the additional powers will not eliminate the potential for error. Instead it may perversely increase this risk.
Australia's David Hicks, a former prisoner at the US Navy base at Guantanamo Bay, has won a legal challenge to his terrorism conviction before a military court in Cuba….
Last year, an appeals court ruled material support was not a legally viable war crime but prosecutors argued the conviction should stand because Mr Hicks agreed not to appeal as part of the plea deal, an argument that has now been rejected by the US Court of Military Commission Review….
Stephen Kenny, Mr Hick's lawyer in Australia, said the decision confirmed his client's innocence.
"Well it means David Hicks' conviction has been set aside and he's been declared an innocent man so it confirms what we knew all along," he said.
"David Hicks was innocent and that has formally been recorded by the military commission itself."….
BACKGROUND
David Hicks, an Australian citizen, was ‘captured' in Afghanistan in December 2001. He was transferred to Guantanamo Bay, Cuba, where he was detained by the US Military on the basis that he was an enemy combatant.
After almost three years in isolated detention, Hicks was charged with conspiracy, attempted murder and aiding the enemy and was committed to face trial before a Military Commission established pursuant to Presidential Order. However, before the trial could proceed, the US Supreme Court found that the military commission system was unlawful.
David Hicks was once more left in detention without charge and with no prospect of release in the short or long term.
In late 2006, the military commission system was re-established by an Act of the United States Congress and in early 2007 David Hicks was again charged and committed to face trial before a newly constituted Commission.
In March 2007, over five years after his initial capture, David Hicks pleaded guilty, pursuant to a pre-trial agreement, to a single charge of "providing material support for terrorism".
In April 2007, Hicks was returned to Australia to serve the remaining nine months of his suspended seven-year sentence.
Hicks was released on 29 December 2007, but was placed under a 12 month control order.
The Law Council took a close interest in David Hicks' case and played a prominent role in bringing his plight to the attention of Australian public. Throughout his period of detention, the Law Council was highly critical of:
* The inability of Hicks to effectively challenge the legality of his detention;
* Hicks' treatment in detention;
* The flawed and inherently unjust rules of procedure and evidence of the military commissions;
* The lack of any legal foundation for the charges initially pursued against Hicks;
* The retrospective nature of the charge eventually pursued against Hicks;
* The acquiescence of the Australian Government in Hicks' detention without charge;
* The acquiescence of the Australian Government in Hicks' trial before a military commission;
* The terms of Hicks' plea agreement; and
* The unnecessary imposition of a control order on Hicks upon his release.
Over this period the Law Council issued more than twenty press releases, public letters to Parliament and reports, including three reports from the Law Council's Independent Observer at Hicks' trial. These materials are available below.
