Hicks Faces About A Year In Australian Jail

Taken from The Sydney Morning Herald, March 29, 2007
By Tom Allard

DAVID HICKS will be behind bars in Australia until after this year's election, but his stint in an Adelaide prison will be relatively short, under a plea bargain being hammered out between prosecutors and his defence counsel.



Government sources confirmed yesterday that Hicks's prospective sentence would take into account his five years and two months in Guantanamo Bay but would also include a short period to be served in Australia. That period is "not close" to the five years being mooted in some reports, one government official said. The Herald understands that additional time to be served in Australia is about a year.

The outcome, still to be approved by a panel of US military commission officials and its Convening Authority, is a bonus for the Federal Government, as Hicks will be unable to conduct potentially embarrassing interviews before this year's election.

Terry Hicks, who heard of his son's guilty plea on an airport tarmac as he prepared to leave Guantanamo Bay for Australia, yesterday blamed the Federal Government for influencing the court hearing and forcing the guilty plea. "They demonised him, they prejudged him for five years," he said. "I suppose Mr Howard would be throwing his hands up with glee at the moment, but ... this was a way out for David regardless of whether he was guilty or innocent."

Mr Howard said he was not into "glee and vindication". "I understand how Mr Hicks feels. It is his son," he said. "I respect that, but let me deal with the facts. His son has pleaded guilty to a charge that he knowingly gave assistance to a known terrorist organisation, namely al-Qaeda."

But there is no doubt the Government is delighted. The Minister for Foreign Affairs, Alexander Downer, said yesterday the Government had unashamedly "been tough on the Hicks case".

However, it remains unclear how long it will take for Hicks to return. First he and his lawyers have to agree on which of 24 specific allegations that underpinned the charge of providing material support to terrorists he will admit to.

Hicks will also be grilled by a military commission judge over the authenticity of his guilty plea. His sentence will then be completed, probably within a week.

Hicks, along with the US and Australian governments, will then have to agree on the conditions surrounding his transfer to Australia.

The Attorney-General, Philip Ruddock, said the process meant that Hicks had no grounds to appeal against his sentence when he returned home, despite suggestions from the South Australian Premier, Mike Rann, to the contrary.

Mr Ruddock also said international prisoner exchange treaties prevented the Government receiving the prisoner from altering his sentence. This has implications for any attempt by a Rudd Labor government, or the South Australian Government, which will run his prison, to commute his sentence or offer a pardon.

"The principle is very clear: if a country were to unilaterally vary a sentence imposed on an individual in another jurisdiction, no country would deliver anybody up," Mr Ruddock said.

He also said Hicks would be banned from selling his story, which publicists said yesterday would be worth more than $1 million. In a letter to his friend Louise Fletcher, Hicks urged her not to write a book about him "because I would have no chance to make any money when I get home".

The Government spent more than $300,000 assisting Hicks, his lawyers and his father. The journey of Terry Hicks and David's sister Stephanie to Guantanamo Bay was paid by the Department of Foreign Affairs.

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A panel of military officers had recommended a term of seven years, but a section of a plea agreement that had been kept secret from the panel capped the sentence at nine months for David Hicks, who has been held at the U.S. military prison at Guantanamo Bay for more than five years. Under the agreement, the confessed Taliban-allied gunman will be allowed to serve his sentence in an Australian prison, but must remain silent about any alleged abuse while in custody.

Under his plea deal, Hicks stipulated that he has "never been illegally treated by a person or persons while in the custody of the U.S. government," Kohlmann said. In the statement read by Mori, Hicks thanked U.S. service members for their professionalism during his imprisonment. Furthermore, the judge said, the agreement bars Hicks from suing the U.S. government for alleged abuse, forfeits any right to appeal his conviction and imposes a gag order that prevents him speaking with news media for a year from his sentencing date. Hicks previously reported being beaten and deprived of sleep during his more than five years at the prison erected for terrorism suspects held at this U.S. Navy base.

Of his son's plea of being guilty, Terry Hicks said: "It's a way to get home. He was desperate; he just wanted to get out." Mr Hicks told ABC radio: "He's had five years of absolute hell and I think anyone in that position, if they were offered anything, they would possibly take it." Hicks will have to make a detailed confession of his crime to a military commission before he can be convicted and repatriated.

The plea deal guarantees that Hicks will be transferred to Australian custody within 60 days of sentencing and probably much sooner. Hicks is still designated an enemy combatant and will remain at his cell in the maximum-security Camp 6 until transfer, officials said.

The 35-point charge sheet presented to the commission members was a modification of the original indictment. All references to a connection with the Sept. 11 terrorist attacks were omitted, as were mention of Hicks discussing with Al Qaeda members his willingness to commit an act of martyrdom and his reported associations with notorious suspects including so-called American Taliban John Walker Lindh and Briton Richard Reid, the would-be "shoe bomber."

The revised list of accusations suggested Hicks' contacts with Al Qaeda were limited and low-level. An earlier clause accusing Hicks of having "expressed his approval" of the Sept. 11 attacks was changed to state that Hicks had no foreknowledge of the hijackings.

The Bush administration has been under intense pressure from the Australian government, which is holding elections this year, to resolve the case and return Hicks. After 11 years in power, Mr Howard is facing the worst opinion polls of his primeministership. A poll on March 20th gave Labor a 22-point lead over the government. However, a poll in December on the Hicks case itself rocked the government. It showed that about two-thirds of Australians thought Mr Hicks should be returned to Australia, and only one-quarter supported Mr Howard's hands-off approach. Since then Mr Howard has changed his public tune, blaming America for the delays in bringing Mr Hicks to trial. That may not be enough to assuage public anger, which probably runs deep enough to affect elections in a few months' time.

The tribunal process has succeeded in making Hicks, a directionless one-time kangaroo skinner, into something of a local hero. A senator who represents Hicks' state in Australia told the New York Times he would return "as a guilty man who has not had a fair trial. The Australian public will see through this process." A columnist for the influential national daily the Australian wrote that "this case has been about much more than Hicks. The U. S. justice system and the U.S. government's commitment to the rule of law have also been on trial. Although Hicks has pleaded guilty, the jury is still out on U.S. justice."