David Hicks

[S.A.M.]

Just now, in connection with another thread, I stumbled across David Hicks

Okay, I am not versed in miltary courts and how their unique and sometimes retroactive legal system operates but according to wikipedia:

David Matthew Hicks (born 7 August 1975[1]), is an Australian who was convicted by a U.S. Military Commission under the Military Commissions Act of 2006, on charges of providing material support for terrorism. Hicks was detained by the United States in Guantanamo Bay detention camp from 2001 until 2007 following earlier para-military and terrorism training at Al Farouq training camp during 2001.[2]

Hicks became the first person to be tried and convicted under the United States' Military Commissions Act of 2006.[citation needed] There was widespread Australian and international criticism and political controversy over Hicks' treatment, the evidence tendered against him, his trial outcome, and the newly created legal system under which he was prosecuted.[3][dead link][4][5]

Earlier, during 1999, Hicks converted to Islam[2] and took the name Muhammed Dawood.[6] He was captured in Afghanistan in December 2001 by the Afghan Northern Alliance and sold for a US$1,000 bounty to the United States military.[6] He was transported to Guantanamo Bay where he was designated an enemy combatant,[7] during which time he alleges he was tortured.[8][9] Charges were first filed against Hicks in 2004 under a military commission system newly created by Presidential Order.[10] Those proceedings failed in 2006 when the Supreme Court of the United States ruled, in Hamdan v. Rumsfeld, that the military commission system was unconstitutional. The military commission system was re-established by an act of the United States Congress. Revised charges were filed against Hicks in February 2007 before a new commission under the new act. The following month, in accordance with a pre-trial agreement struck with convening authority Judge Susan J. Crawford, Hicks entered an Alford plea to a single newly codified charge of providing material support for terrorism. Hicks's legal team attributed his acceptance of the plea bargain to his "desperation for release from Guantanamo".

In April 2007, Hicks was returned to Australia to serve the remaining nine months of a suspended seven-year sentence. During this period, Hicks was precluded from all media contact and there was criticism[citation needed] for delaying his release until after the 2007 Australian election. Former Pentagon chief prosecutor Colonel Morris Davis later alleged political interference in the case by the Bush administration in the United States and the Howard government in Australia.[11] He also said that Hicks should not have been prosecuted.[4] Hicks served his term in Adelaide's Yatala Labour Prison and was released under a control order on 29 December 2007. The control order expired in December 2008 and, since married, Hicks now lives in Sydney.

http://en.wikipedia.org/wiki/David_Hicks

How does the US military have the jurisdiction to try/convict Hicks? Does Australia have some arrangement with the US so that Australian citizens are under US jurisdiction? Or is the David Hicks case a precedent for some kind of international jurisdiction established by the US military?

 

[spidergoat]

He was captured on the battlefield, who cares where he is from?

 

[S.A.M.]

He was captured on the battlefield, who cares where he is from?

Which battlefield?

The letter recounts claims in Hicks's book that he was sodomised with a plastic instrument while in detention, had bones broken during beatings which at times lasted 10 hours, and at one stage did not see the sun for 12 months.

http://au.news.yahoo.com/thewest/a/-/national/9427013/supporters-seek-to-clear-hicks-name/

Can he sue the US for torture?

 

[spidergoat]

Afghanistan.

Probably not, since the information he would need to subpoena might be a matter of "national security". I'm not defending that, he should not have been tortured, and those responsible should be brought to justice.

 

[Believe]

Which battlefield?



Can he sue the US for torture?

What do you mean which battlefield? Did you even read your own post?

 

[James R]

How does the US military have the jurisdiction to try/convict Hicks?

The Americans claim to have captured Hicks fighting against them with the Taliban in Afganistan. But I'm not actually sure what their argument was about jurisdiction (but see below).

Does Australia have some arrangement with the US so that Australian citizens are under US jurisdiction?

No moreso than other nations. In general, if you're a foreign national and you commit a crime then you can usually be brought to trial wherever the offence was committed.

My guess is that US law also gives its courts jurisdiction to try those who commit crimes against US citizens, even where those crimes take place extra-territorially. The only problem then becomes actually arresting the criminal in a foreign jurisdiction. In the Hicks case, an arrest was obviously made and Hicks was brought back to Guantanamo. I'm sure that the US is in no way unique among nations in defining its judicial jurisdiction this way.

Or is the David Hicks case a precedent for some kind of international jurisdiction established by the US military?

I think you'll find that most nations give wide jurisdictions to their courts, even extra-territorial jurisdiction where their own citizens are involved. The problem is not a legal one so much as a practical problem of bringing a criminal to trial from a foreign country. That's where extradiction treaties and the like come into the picture.

 

[Asguard]

On his rights to Sue I don't know but I doubt it because bush covered his ass. Against the Australian government for complicity he has a strong case. And BTW the court that "convicted" him was struck down so his conviction should be too

 

[James R]

Against the Australian government for complicity he has a strong case.

Could you explain that in more detail, please. What is his argument? Who says he has a strong case? What was the Australian government complicit in? Is complicity actionable? I assume you're talking about Hicks suing the Commonwealth in Australia. What are the relevant laws?

And BTW the court that "convicted" him was struck down so his conviction should be too

Got a reference for that? Who struck down the military tribunal that convicted Hicks? Did whoever it was say that its convictions are invalid under US law?

This is the first I've heard about some of this stuff. Hope you can help.

 

[Bells]

Can he sue the US for torture?

Nope. As a part of his agreement for release, he is not allowed to speak of what happened to him, nor is he allowed to seek legal recourse against the American Government about his treatment during his detention.

I say detention because he was held for years without charge. He was supposedly charged right before his release when pressure mounted from Australian human rights activists and lawyers, as well as his American defence force appointed lawyer to state what his charges or crimes were. He was then immediately released if he admitted guilt to those supposed crimes - which leads one to question why release him if he was such a danger to society which the Bush administration and the Howard Government had been touting for years.

Democracy and basic human rights.. grand ain't it?

 

[Asguard]

The tribulnal was struck down by the supreme court in the US which is why that has been the only trial. As for the case against the Commonwealth, its a federal offense for any Australian citizens to aid or be complict with anyone who commits torture. We are also sigitries to the convention against torture both of which could be used in a case against the Commonwealth.

 

[James R]

Nope. As a part of his agreement for release, he is not allowed to speak of what happened to him, nor is he allowed to seek legal recourse against the American Government about his treatment during his detention.

The gag order was only temporary, wasn't it? He has just recently released a book detailing his experiences.

The tribulnal was struck down by the supreme court in the US which is why that has been the only trial.

Got a link to something that confirms this?

As for the case against the Commonwealth, its a federal offense for any Australian citizens to aid or be complict with anyone who commits torture.

Did the Australian government aid anybody in committing torture? How so? Who says there is a case to answer on this? Got a link?

We are also sigitries to the convention against torture both of which could be used in a case against the Commonwealth.

Could it? Can you link me to one opinion from a lawyer who says that?

 

[S.A.M.]

What do you mean which battlefield? Did you even read your own post?

I can read, which is why I asked; he was handed over by some Afghans in exchange for US dollars. That doesn't sound like a battle field, more like a bounty hunter, except that for a bounty hunter to catch and bring someone - there actually needs to be a case against the criminal. There was no case against Hicks just as there was no case against hundreds of others who were similarly sold to the US for dollars.

WikiLeaks: children among the innocent captured and sent to Guantanamo
An illiterate farmhand and wood-gatherer who did not even know his own age was among the 150 innocent people incarcerated in Guantánamo Bay, secret documents disclose.

Mr Nasim was sent to Guantánamo along with scores of other innocent farmers, rug sellers, cooks, and taxi drivers rounded up as the US and Northern Alliance forces swept through Afghanistan after the fall of the Taliban in 2001. Others were sold to the Americans by opportunistic warlords in return for thousands of dollars.

http://www.telegraph.co.uk/news/wor...innocent-captured-and-sent-to-Guantanamo.html

So I repeat, which battlefield?

------------------------------------------------------------------------------------

Nope. As a part of his agreement for release, he is not allowed to speak of what happened to him, nor is he allowed to seek legal recourse against the American Government about his treatment during his detention.

I say detention because he was held for years without charge. He was supposedly charged right before his release when pressure mounted from Australian human rights activists and lawyers, as well as his American defence force appointed lawyer to state what his charges or crimes were. He was then immediately released if he admitted guilt to those supposed crimes - which leads one to question why release him if he was such a danger to society which the Bush administration and the Howard Government had been touting for years.

Democracy and basic human rights.. grand ain't it?

Do agreements made under torture hold water in court? According to his statements he had been tortured for several years and would have said anything, he was so desperate to get out of Gitmo; doesn't the Australian government have any recourse for subjects who are detained without trial by foreign states, tortured and indicted by kangaroo courts, especially when said courts are deemed illegal?

In a sharp rebuke to the Bush administration, the United States Supreme Court today ruled 5-3 that the military commissions system established by President Bush to try detainees at Guantánamo Bay is unfair and illegal. The American Civil Liberties Union, which filed a friend-of-the-court brief in the case, applauded the decision.

http://www.aclu.org/human-rights_na...anamo-bay-military-commissions-are-unconstitu

The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html

edit: according to this article on civil liberties in Australia

Can David Hicks sue the US Government – and also the Australian Government – for his arrest and kidnapping, followed by detention and “conviction” at Guantanamo Bay?

Will he benefit from a $5m-plus compensation payout, at $1m a year for his five years of wrongful detention, including time in an Adelaide prison, and have his enforced silence ended?

The US Administration has admitted before a US Senate Committee that the only offence to which David Hicks pleaded guilty - providing material support for terrorism - is almost certainly not an offence under the US military law system. They say that there is a "significant risk" appeal courts will rule against the Administration on the point of law.

Even the legitimacy of the 'system' is questionable, the US Senate was told, with reference to the Military Commission process.

A 'Military Commission' sentenced Hicks to seven years in prison in February 2007. The 'conviction' led to his spending nine months in an Adelaide prison, under an agreement between the US and Australian Governments, after more than five years of detention before 'trial' in Guantanamo. As well, to this day he is forcibly silent, and banned from profiting by writing or speaking about his experiences, as part of the sentence.

It appears from the recent US Senate testimony that Hicks' treatment by the US Administration – and therefore by the Australian Government also – was 'beyond the law'. That is, the 'crime' he was charged with never existed, because it could not exist under US military law. It is not a 'traditional violation of the law of war'.

As the US Assistant Attorney General, David Kris, said in evidence on 7 July 09 to the Senate Committee on Armed Services:

“...our experts believe that material support for terrorism is not a traditional law of war offence, thereby reversing hard-won convictions and leading to questions about the system's legitimacy.”

If the system was illegitimate, and the offence did not exist, Hicks' conviction must be annulled. He must be compensated for the detention and penalties imposed on him for actions which were not offences under any law of the USA or Australia.

Note: Virtually all Australian civil liberties, human rights and lawyer groups consistently argued the illegality of Hicks' circumstances from soon after his plight became known. It is not as if the reality of the illegality of the situation was not pointed out to the governments of both countries.

The legacy of Philip Ruddock as Attorney-General, and John Howard as Prime Minister, may be to force Australia pay suitably massive compensation because they got it wrong, in principle, morally, and legally. The US Administration may also be forced to pay compensation to Hicks because it acted beyond the law.

Importantly, Hicks would be free to say what he likes, when he likes, wherever he likes.

Here is the relevant part of US Assistant AG Kris's statement:

“...the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the US Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system's legitimacy.”

For the testimony before the US Senate Armed Forces Committee, click here:

US analysis of the situation is available here.

The Obama Administration may be forced to take a formal position in court on the basic question analysed above: Ali Hamza Ahmad Suliman al Bahlul was convicted on several charges, including material support and conspiracy, when he failed to put up a defence. His conviction has been appealed to the Court of Military Commissions Review where the Obama administration will have to take a position one way or the other - click here

US lawyers are starting to realise the ramifications of the Kris evidence: see article [dead link].

http://www.cla.asn.au/0805/index.php/articles/2009/hicks-in-line-for-big-compensation-payout

see also:

Today's The Australian newspaper reports that government moves to block Hicks from profiting by selling his story could backfire by providing the trigger for him to appeal against his terrorism conviction in Australia.

Mounting a challenge against the US Military Commission finding he had provided material support to terrorists in Afghanistan, which Hicks accepted under a plea bargain to return to Australia, would be consistent with his supporters' claims the process was unjust.

Several legal challenges to the validity of the military commissions are already under way in the US. Should they succeed, constitutional lawyer George Williams said Hicks's guilty plea would be invalid.


"That puts him in a very strong position," Professor Williams said.

http://www.heraldsun.com.au/news/na...jail-lawyers-say/story-e6frf7l6-1111115247467

 

[Asguard]

James that would be an appeals to authority but as Bells is a lawyer, bells what do you think?

 

[Asguard]

Oh BTW the reason he could write a book is because the nondisclosure agreement was uninforcible under Australian and South Australian law

 

[James R]

James that would be an appeals to authority but as Bells is a lawyer, bells what do you think?

I haven't appealed to anything. I've asked you to link me to something other than your opinion. Something more informative.

Oh BTW the reason he could write a book is because the nondisclosure agreement was uninforcible under Australian and South Australian law

Really? I thought it was because the gag order had expired.

Got a link for this one? No?

 

[S.A.M.]

I think both James and Asquard are right

Australia will not stop Guantanamo detainee David Hicks from talking to the media despite a gag order that is part of the plea deal that secured his release, the attorney-general has said.

Philip Ruddock said the government would not enforce the US-imposed gag on Hicks because if he did speak out he would not be breaking Australian law.
Hick's was convicted last week by a US military tribunal last week of providing material support for terrorism.

His US military lawyer, Major Michael Mori, had said his client could be sent back to Guantanamo if he talked to reporters.
But Ruddock said the Australian government would not legally be able to extradite Hicks back to the US if he spoke to the media.

"In Australia, we have a position about freedom of speech," Ruddock told ABC television late on Tuesday.

"I'll leave it to your imagination as to a way in which somebody seeking extradition in relation to a party for breaching a so-called gag order would be able to be delivered up through the judicial processes in Australia."

Asked if nothing would happen if Hicks spoke to the media, Ruddock said: "I suspect you are probably right."


http://english.aljazeera.net/news/asia-pacific/2007/04/200852513297222731.html

But I think Hicks chose to wait till the end of his gag order. I don't blame him, I wouldn't trust the Aussie government either.

 

[James R]

SAM:

A lot of the material you're linking to is several years old. At least one of your links is from 2006. Things have moved on in the Hicks case since then. I'm not up with all the latest developments, but Asguard thinks he is. That's why I'm asking him for links so you and I can find out what the current state of play is.

We had a change of government in Australia in 2007. John Howard is no longer Prime Minister. Phillip Ruddock, the previous Attorney General, is long gone. The Liberal Party no longer governs. We now have a Labour government under Prime Minister Julia Gillard. And she's the second Prime Minister since John Howard, the other being Kevin Rudd.

 

[Asguard]

Irrelevant James, if a case could be made then it can be made now and the government can't say "well it wasn't us it was them. That's not how the system works. If he choses to take a case to the federal court it doesn't matter that the government has changed. Now if your asking WILL he I don't know that's up to him, could he? Sure I believe that other Guy who's name escapes me won an out of court settlement and I'm sure Hicks would be settled out of court too if only to prevent the bad press (especially with our troops dying)

On the gag order why exactly do you think if he couldn't be gaged under Howard why do you think it would be any different under gilard? The law hasn't changed

 

[James R]

Asguard:

I'm not arguing that the current government would be any less liable than the Howard government if Hicks has a case.

I've asked you several times to provide some information other than your personal opinion on whether he in fact has a case. Do you have any information, or are you just speaking off the top of your head?

 

[Bells]

The gag order was only temporary, wasn't it? He has just recently released a book detailing his experiences.

The gag order was for a year.

But he was releasing information about his treatment in Gitmo as soon as he was released, through his lawyer and his father. At the end of the day the gag order could never be legally enforced in any court of law - not in Australia and actually not in the US either.

Could it? Can you link me to one opinion from a lawyer who says that?

Yes, it could.

As an Australian citizen, he has rights, none of which were upheld during his detention in Gitmo. At one point his lawyers took the Australian Government to court for failing to uphold his rights as a citizen of this country and for failing to demand that the US Government comply with the Geneva Convention and not torture him. It was a very good stratergy which put the Australian Government of the day in a very uncomfortable and public situation of defending the use of torture and denying a citizen his rights. Ruddock aged visibly during that time.

Do agreements made under torture hold water in court? According to his statements he had been tortured for several years and would have said anything, he was so desperate to get out of Gitmo; doesn't the Australian government have any recourse for subjects who are detained without trial by foreign states, tortured and indicted by kangaroo courts, especially when said courts are deemed illegal?

It wasn't just that though. The US Government could never ever bring him to court for a breach of a gag order in a US court. At the time, the Howard Government AG was quite suprised by the gag order in the first place, as it is not enforceable, not here and not there. So Mr Ruddock at the time stated very clearly that he would not act if Hicks did speak out after his release.

One of the biggest gripes in the Australian legal community at the time was that here was an Australian citizen, being illegally held and tortured. He was a Taliban member, not a member of Al Qaeda, and the war was supposedly to go after Al Qaeda. At the time, many of us expressed disbelief and disgust that they would arrest and detain him for supposedly defending himself and the Taliban Government against an armed invasion. Which in and of itself is not illegal. The issue was that they did not declare him to be a prisoner of war, which would have forced the US to accord him his rights as per the Geneva Convention. Instead he was in limbo, not a POW and he was not charged until the pressure grew to a tremendous amount and they literally seemed to throw together a range of charges right at the end.

What was funny was that Minister Ruddock (the AG) at the time was clearly uncomfortable with the stance his Government was taking but he backed them every step of the way. His reputation as a member of Amnesty International is trashed and he will NEVER be able to get that respect back.

As for suing the Australian Government - Mamdouh Habib (an Australian citizen and who had been detained and tortured at Gitmo) did sue and the Australian Government settled with him as long as he drops his case with them... sooo... what does that tell you?

But I think Hicks chose to wait till the end of his gag order. I don't blame him, I wouldn't trust the Aussie government either.

His gag order was only for 1 year.

The only thing he can not do or is not supposed to do is to profit from his crime (so to speak). His publishers have countered that and have refused to disclose if he was paid anything for his book and cited confidentiality as a result. The Government of the day never went after him for his book though. Thankfully for him, the Howard Government was not in power when he released his book .. then again, it would have made them look like bigger tools than they made themselves to be during the Hicks and Habib saga.