If being a Taliban shooting at enemies is not a crime, then why was David Hicks locked in a South Australian prison? Whether he pled guilty or not, the only thing that David could be tried on has now been found by a Guantanamo Military Tribunal to not be a criminal act.
Osama bin Laden's former driver Salim Hamdan was cleared overnight of two counts of conspiring with al Qaeda to attack civilians, destroy property, commit murder in violation of the laws of war. No Twin Towers, no USS Cole. Without admissions extracted under torture in Afghanistan, it appears the prosecutors didn't have a leg to stand on
He was convicted of the failsafe charge (imagine if he walked away found guilty of nothing?) the same charge that Hicks plead guilty to, that of providing material support for terrorism. Basically, by acting as Bin Laden's chauffeur, he helped Osama do what Osama did. That, it seems, is about all they could pin on him.
Deputy Chief Defence Council Michael Berrigan [1] says that "The travesty of this verdict now is that had the case gone to trial in 2004 he would have been acquitted of all the charges," There is, though, a greater travesty in the ramifications of this verdict.
It appears to me that the acts that Hamdan has been forund to be not guilty by a jury are the same as the ones that Hicks pled guilty to. Have a look at the allegations of the "material support" laid against Hicks, as reported in the Australian on March 2, 2007:
[extract [2]]
The first specifiation reads Hicks did "intentionally provide material support or resources to an international terrorist organisation engaged in hostilities against the United States, namely al-Qa'ida, which the accused knew to be such an organisation that engaged, or engages, in terrorism, and, that the conduct of the accused took place in the context of and was associated with an armed conflict, namely al-Qa'ida, or its associated forces against the US or its coalition partners".
The second specification reads Hicks did "provide material support or resources to be used in preparation for, or in carrying out, an act of terrorism, that the accused knew or intended that the material support or resources were to be used for those purposes, that the conduct of the accused took place in the context of and was associated with an armed conflict, namely al-Qa'ida or its associated forces against the US or its coalition partners."
Hamdan was convicted on only five of the eight counts in the "material support" charge. The BBC correspondent on ABC radio news overnight says that the Tribunal has ruled that for a member of the Taliban to shoot at an enemy soldier is not a war crime.
Here's where it can get interesting for Hicks. Picked up in Afghanistan in 2001 by the Northern Alliance, what' s the most that he could possibly have done? Shot at an enemy soldier. If that's not a crime, then David has been jailed both in Guantanamo and South Australia for something that isn't regarded as criminal. Given that "material support" is a crime introduced retrospectively by the U.S., should Hicks' innocence be as retrospective as the charge?
Having been found guilty by a jury, Hamdan faces one round of appeals at Guantanamo before he can take his case to the Federal Court. If I was South Australian Attorney General Michael Atkinson, I would be following what happens at that point very closely. Given the mood of the US judiciary chances must be pretty good that the convictions will be overturned. At this point it must be likely that David can ask for, and receive, an overturning of his conviction.
American Civil Liberties Union National Security Project staff attorney Ben Wizner, who observed the most recent trial:, says [3] that "In the strange world of Guantánamo justice, even if Hamdan had been acquitted on all charges, he would have been detained indefinitely. Nowhere else in the U.S. justice system can someone be held for life regardless of whether he is convicted or acquitted of a crime. Today's outcome represents nothing more than an illusion of justice."
It appears, then, that when Terry Hicks told us that his son was taking a chance to escape Guantanamo, he was spot-on. Now a free man (apart from the South Australian Government requested control orders) David may receive what he could well consider the first taste of true justice he's encountered in seven years.
By then the Bush Administration, like the Howard Government, will be long gone. I hope the last responsible leader remaining in power, SA Premier and Federal ALP President Mike Rann (ie the boss of the political party that runs the country) does the right thing when the time comes. Apologising would be a good start.
Later this morning, when sentence is passed on Hamdan, the first U.S. Military Tribunal convict since the Second World War, the process of annulling the horrors of Guantanamo will finally have truly begun.