David Hicks is guilty; he has said so. In years to come, we must not let the revisionists cloud that fact. But did Australia fail him? The Prime Minister, John Howard, who likes to present himself as a politician of principle, would say no. He has defended Australia’s involvement in Iraq as an example of doing what he believes to be right, not what is popular. Mr Howard says, correctly, that government policy cannot be a slave to opinion polls. That being Mr Howard’s view, it is a pity the Prime Minister did not take a principled stand at the outset regarding David Hicks. Instead, Hicks was surrendered without demur to the American military. Only when the clamour of protest in Australia became too loud to be ignored did Mr Howard and his senior ministers discover that even a terrorist deserves due process. By then the Government had achieved the seemingly impossible by making a willing recruit to Muslim extremism into an object of sympathy.
The Government found itself confronting widespread concern at Hicks’s treatment in Guantanamo Bay and at the processes of the special military commission which would try him. Those concerns were justified. Yet the abiding issue from the Hicks case is not the treatment of one individual – important though that is – but the right of every Australian to proper legal process, and the duty of the Australian Government to defend that right.
Of course, there was no talk of a fair go for Hicks when he was captured in Afghanistan in 2001, and later shipped to Cuba. “Fair enough,” Australians would then have thought, Hicks had only himself to blame for the trouble he found himself in. Most were probably indifferent and some were very definitely hostile. The Australian Government, too, was happy enough for the Americans to keep Hicks. In truth, the Government would not have known what to do with him; after all, Hicks had not broken any Australian law. As well, it was at least arguable that the Americans should be given an opportunity to interrogate Hicks. The Government of Tony Blair would later demand that its nationals be returned to Britain, but Australia quietly abandoned Hicks to his fate.
WHAT the Australian Government could not have envisaged in early 2002 was that five years later, Hicks would still be in detention and would still not have been validly charged. It could not have foreseen Hicks would be appearing before a special military commission whose procedures were being condemned by eminent legal figures in Australia and the United States. That’s how things stood at the start of 2007. By then an increasingly embarrassed Australian Government was moving publicly and noisily to have the Hicks case resolved. Quite quickly, a new charge was brought against Hicks. Behind the scenes a plea bargain was sealed; Hicks had pleaded guilty to one count of material support for terrorism and had been sentenced to just nine more months in custody. Hicks is expected to be back in Australia soon to serve the balance of his sentence in an Adelaide jail.
For Hicks, this is the end of his interment in Guantanamo Bay. For his father, Terry, it is the end of a long quest to bring his son home. For the Howard Government, it is the prospect of defusing an increasingly divisive issue before it can intrude any further on the federal election expected at the end of the year. For many, it is the satisfaction of being able to call Hicks a convicted terrorist, condemned out of his mouth. Yet even Hicks’s most vehement detractors cannot be satisfied with such a “trial”, its outcome determined in high-level backroom deals. It has left critics with the opportunity to say that Hicks’s confession is inevitably tainted by the grim circumstances in which it was offered; Hicks’s hearing was first and foremost about grabbing an opportunity – perhaps a once-only opportunity – to go home. The place of truth and justice in the hearing was far less clear.
The Government will, however, be hoping that Hicks’s return means any further rumblings about the case will be only muted. Yet the matter may not so conveniently fade. It appears likely that the legality of the military commissions will be challenged in the US Supreme Court. If such a challenge succeeds, would that invalidate the prison sentence handed down to Hicks, and should he then go free? There is also scope for a challenge in the High Court of Australia to the jailing of an Australian on the order of a quasi-judicial body such as a military commission. All that, however, is for the future.
Mr Howard is correct: a government shows its mettle by doing the hard things because they are right. The test is a government’s willingness to put principle before popularity. Hicks was certainly never popular. At best he was seen as foolish and misguided; at worst a disloyal and dangerous traitor. But even the most adverse opinion of Hicks could not absolve the Government of its obligations to demand that he face a fair trial in a reasonable time frame. Hicks was entitled to expect that his Government would stand up for that right and demand that he be charged and that this be done swiftly. The Government failed to do so until the political pressure became irresistible.
- The Sydney Morning Herald
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