THE former foreign minister Alexander Downer says David Hicks should be grateful he is still not in Guantanamo Bay, even after a US court ruled invalid the charge under which he was convicted.
Mr Hicks will seek to overturn his terrorism conviction and plans to sue the Australian government following yesterday’s decision by the US Court of Appeals that the charge of providing material support for terrorism could not be applied retrospectively.
Rejecting criticism of the Howard government’s handling of the Hicks case, Mr Downer said he had no sympathy for Mr Hicks, a former Adelaide resident who was captured in Afghanistan soon after the September 11, 2001, attacks. ”He would have been there for years if it hadn’t been for our intervention,” he said.
”We very much used the close friendship with the US administration to get his case heard. Anyone who goes and gets involved with al-Qaeda and the Taliban, that’s the sort of organisation you’re dealing with, you’re going to get into trouble. They’re no better than the SS.”
Mr Hicks said he was very happy. ”We have always said the conviction was doubtful and shouldn’t stand,” he said.
He called for an inquiry into why he was allowed to languish in Guantanamo Bay for so long and said he intended to sue the government. ”The Australian government knew for years that the system was not fair, but it put me up before it anyway,” he said.
Despite the court finding, Mr Hicks’s appeal is not assured because he pleaded guilty.
The court overturned the conviction of Osama bin Laden’s former driver, Salim Hamdan, who, along with Mr Hicks, was tried by the US military commission at Guantanamo Bay. Unlike Mr Hicks, Mr Hamdan did not plead guilty but was convicted.
The court found Mr Hamdan’s conviction could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime.
The crime was created by the US Congress in 2006, five years after Mr Hicks was captured.
In March 2007, in a plea bargain which was negotiated with the knowledge of officials of both governments, he pleaded guilty and was jailed for seven years. It was suspended for all but nine months. That May, he was flown back to Australia, sent to jail in Adelaide and released four days after Christmas.
Mr Hicks has said subsequently that he pleaded guilty just to get home. His lawyer, Stephen Kenny, said he would appeal the conviction in the US military courts. ”I have always been of the belief that the crime did not exist. It was an invention to convict those people in Guantanamo Bay who were innocent,” he said.
Mr Hicks’s former lawyer Michael Mori said he had warned from the beginning that the conviction would unravel. ”The fact that the charges had been made up retrospectively and were not valid offences under the laws of war was obvious,” he said.
The attorney-general at the time, Philip Ruddock, agreed with Mr Downer.
He said if Mr Hicks believed he was innocent, ”he should not have pleaded guilty”.
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