Insight Australian Detainee Pleads Guilty before the First Military Commission By Dr Stephen Tully
Volume 11, Issue 11
Recently, David Hicks, an Australian interned for over five years in Guantanamo Bay, became the first individual sentenced under the newly-constituted Military Commission process. Hicks pleaded guilty to one count of intentionally providing material support to al-Qaeda in the context of an armed conflict against the U.S. and will be repatriated to Australia to serve a further nine months of imprisonment. This Insight reviews the factual circumstances of Hicks’ arrest and detention as well as the responses of the U.S. and Australian governments to habeas corpus proceedings commenced within both countries. These developments also have wider legal ramifications for the prerequisite of a fair trial under the law of armed conflict, what considerations are relevant to exercising diplomatic protection and the enforceability of a conviction by a U.S. Military Commission.
In 1999, Hicks served with the Kosovo Liberation Army, was trained in Pakistan and spent time in Kashmir. He allegedly attended al-Qaeda training camps in Afghanistan, associated with the Taliban, translated terrorism documents, received weapons and monitored U.S. and U.K. embassies in Kabul. He was captured by the Northern Alliance in November/December 2001, either guarding a tank, traveling in a truck or waiting at a taxi stand. He was transferred to U.S. custody, allegedly mistreated by U.S. nationals and transported to Guantanamo Bay in January 2002.
In November 2001, Military Commissions were established to prosecute non-U.S. citizens detained at Guantanamo Bay for violating the laws of war. Hicks’ petitions for habeas corpus were dismissed in July 2002. At that time, it was stated that ‘little is known’ about Hicks ‘except that he was allegedly living in Afghanistan at the time of his seizure by the U.S. government’ because he ‘had joined the Taliban’ and his government ‘indicated to the U.S. that it is appropriate that Mr. Hicks remain in U.S. military custody with other detainees while Australia works through complex legal issues and conducts further investigations’. The Australian government began pressing for Hicks’ trial in 2003. Hicks himself maintained that he was not an ‘unlawful enemy combatant’.
In June 2004, Hicks was charged with attempted murder as an unprivileged belligerent, aiding the enemy and conspiracy (including conducting terrorist activity with al-Qaeda). He pleaded not guilty in August and the trial was set for January 2005. In November 2004, however, the Military Commission proceedings at issue were invalidated in a trial court ruling that was subsequently reversed.
In January 2005, Mamdouh Habib, an Australian arrested in Pakistan during October 2001 and transferred to Guantanamo Bay via Egypt and Afghanistan in May 2002, was repatriated to Australia notwithstanding an inability to prosecute. In July 2005, ‘unlawful combatants’ could be tried by Military Commissions without the protection of the Geneva Conventions.
In November 2005, legal proceedings against Hicks under the Military Commission process were stayed until the U.S. Supreme Court issued its Hamdan decision. In December 2005, U.S. district courts were prevented from considering writs of habeas corpus filed by Guantanamo Bay detainees.
In June 2006, Military Commissions were adjudged to not satisfy the requirements for a fair trial prescribed by the Geneva Conventions. The Australian government indicated that Hicks’ repatriation would be sought if new substantive charges were not laid. The post-Hamdan Military Commissions were established in October 2006.
In February 2007, the constitutional validity of suspending the writ of habeas corpus in ‘all cases, without exception’ was upheld. At that time Hicks was charged with attempted murder and providing material support for terrorism. In March 2007, the first charge was abandoned and, with elections imminent, the Australian government indicated that further delay would prompt demands for Hicks’ return. On March 27, 2007, Hicks was sentenced for the second charge after his guilty plea.
Habeas Corpus Proceedings Initiated in Australia
Habeas corpus proceedings were commenced before Justice Tamberlin of the Australian Federal Court concerning an Australian government decision not to take steps to request Hicks’ release from U.S. custody and repatriation. Given ‘the history and importance’ of this ‘exceptional’ case, depriving Hicks of liberty was considered nothing short of a ‘fundamental contravention of a fundamental principle’.
Hicks argued that Australia owed a protective duty to citizens located abroad. Albeit unenforceable and imperfect, this obligation required the government to consider in accordance with law applications by imprisoned nationals to request repatriation from detaining authorities. This duty included properly executing and maintaining the rule of law under the Australian Constitution such that irrelevant considerations rendered invalid any decision not to request return. Taking into account an inability to prosecute Hicks under Australian or U.S. law was accordingly inconsistent with Australia’s protective function. Furthermore, considerations that did not conform to international legal standards were similarly inconsistent with a duty of diplomatic protection over its nationals. This included Australia’s willingness to waive the trial protections mandated by the international law of armed conflict by encouraging U.S. authorities to detain and prosecute Hicks. The government replied that the question of extraneous considerations was inapplicable because executive discretion was wide and unfettered.
Hicks also argued that trial by the newly-constituted Military Commission would not provide the trial protections required by customary international law or relevant treaty obligations incorporated under Australian criminal law. In particular, he was being denied the right to be tried before a regularly constituted court affording the requisite judicial guarantees under Geneva Convention (III) relative to the Treatment of Prisoners of War.
According to Justice Tamberlin, the U.S. Supreme Court had concluded that even for dangerous individuals who would kill civilians, ‘the Executive must nevertheless comply with the rule of law by undertaking to try him and subject him to criminal justice’. His Honour accepted that Hicks had been deprived of his personal liberty and subjected to lengthy detention without lawful trial. Furthermore, neither the act of State doctrine or the principle of non-justiciability warranted dismissal.
The Australian government argued that habeas corpus was unavailable to Hicks because he was in continuous U.S. physical custody and Australia’s ability to persuade or request his release fell short of control. Hicks countered that he would have been released from U.S. custody at any time if Australia requested his repatriation and there was no reason to suppose that the U.S. authorities would not accede to such a request. Justice Tamberlin concluded that the Australian government had not presented any evidence to rebut the presumption that deprivation of liberty was prima facie unlawful. Hicks was accordingly entitled to lead and test evidence concerning co-operation arrangements and relevant commitments between Australia and the U.S. concerning his internment. Although this task had a ‘reasonable prospect’ of success, it was sufficiently ‘difficult and novel’ that Hicks subsequently undertook plea bargaining with the U.S. Defence Department. Following the exclusion of his civilian counsel from Military Commission proceedings, Hicks ultimately agreed to refrain from media communication for one year , waive future claims, remain liable to detention, confirm his voluntary plea and declare non-illegal treatment while in U.S. custody and control lawfully pursuant to international humanitarian law.
The Future for David Hicks
Hick’s conviction may not remain unchallenged.A conviction against another Australian for receiving al-Qaeda funds was recently overturned due to involuntary admissions made to Australian authorities. Jack Thomas was mistreated during indefinite detention by Pakistani authorities, was threatened by an American and could not expect repatriation without waiving his legal rights. Subjecting Hicks to control orders for preventing terrorist acts is similarly uncertain until their constitutional validity has been ascertained.
Habeas corpus proceedings in Australia for Hicks have become moot and the U.S. Supreme Court has recently denied petitions for certiorari initiated by other Guantanamo Bay detainees. However, the Hicks judgment illustrates comparative jurisprudence on non-justiciability, the act of state doctrine and the application of administrative law principles and human rights considerations to the discretionary exercise of diplomatic protection. By affirming the role of judicially-determined constitutional restraints upon executive decision-making, the judgment may assist in determining the fate of other individuals held at Guantanamo Bay.
About the Author
Dr Stephen Tully practices law in Sydney, Australia.
 For the view that this charge does not constitute a war crime, inaccurately conflates two U.S. federal offences and violates the principle of non-retrospectivity contrary to the U.S. Constitution, Australian criminal law and treaties to which both States are parties, see Vickery, McCormack, Nicholson, Charlesworth, Griffith, Byrnes, Boas, Kaye & Rothwell, Advice in the Matter of the Legality of the Charge against David Hicks, March 8, 2007 (www.lawcouncil.asn.au/shared/2435666621.pdf). ‘The David Hicks Affidavit’, Sydney Morning Herald, Dec. 10, 2004. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004) rev’d 415 F.3d 33 (D.C. Cir. 2005). Habib v. Bush, No. 02-5284 (D.C. Cir. June 10, 2002) determined in Al Odah v U.S. 321 F.2d 1134 (D.C. Cir. 2003). Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005). Hicks v. Bush (U.S. D.C. Dist. Col., Nov. 14, 2005).  Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2680 (2005). Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).  The U.S. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006); 45 I.L.M. 1246 (Oct. 17, 2006). For the view that these Military Commissions suffer the same procedural defects as their predecessors, violate Common Article 3 and are inconsistent with Hamdan and Australian criminal law, see Nicholson, Vickery, Charlesworth, Byrnes, Griffith & McCormack, Opinion on David Hicks and the Military Commissions Act 2006: Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law (http://www.hrlrc.org.au/files/IZQF2TUDOX/Hicks%20%20Opinion%20on%20War%20Crimes.pdf). Boumediene v. Bush Nos. 05-5062 etc (D.C. Cir., Feb. 20, 2007). Hicks v. Ruddock et al.  FCA 299 (Federal Court of Australia, Mar. 8, 2007) (http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/299.html) (hereinafter ‘Hicks’), paras. 91 & 94.  The government was ‘well satisfied’ with the progress of negotiations ‘in the event of [Hicks] facing any kind of trial or arraignment in the U.S.’: Australian House of Representatives, Hansard No. 11 (2003), May 27, 2003, 15028-15029. To deprive individuals of a fair trial by denying the judicial guarantees envisaged under that Convention would be an offence: s.268(31) Criminal Code Act 1995 (Aus). For the views of Australian lawyers on the prospect of a fair trial for Hicks, see Australian Law Council, ‘Australian Government Has Failed Hicks, Law Council Tells Prime Minister’, Aug. 11, 2005 (http://www.lawcouncil.asn.au/hicksjustice.html#reports). Hicks, para. 71  ‘PM tells the party: I could free Hicks-but won't’, Sydney Morning Herald, Feb. 7, 2007.  Hicks, para. 92.  Compare ‘We can't enforce Hicks media gag: Ruddock’, ABC NewsOnline, Apr. 3, 2007 (http://www.abc.net.au/news/newsitems/200704/s1889044.htm). R v. Thomas  V.S.C.A. 165, paras. 85, 88 & 90 (Victorian Supreme Court (Court of Appeal) Aug. 18, 2006). Anti-Terrorism Act 2005 (Aus). For the human rights implications of terrorist offences, see New South Wales Council for Civil Liberties, ‘Written Submissions’, Mar. 4, 2006 (http://www.nswccl.org.au/docs/pdf/ICJ%20submission.pdf). Thomas v. Mowbray (M119/2005) (Australian High Court (Original Jurisdiction)). Boumedienne v. Bush, Al Odah v. U.S (U.S. Sup. Ct., Apr. 2, 2007).
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