The US Agrees That David Hicks Is Innocent

Eight years after he entered an Alford plea to the charge of providing "material support for terrorism" the United States has agreed that former Guantanmo Bay detainee, the Australian David Hicks, is innocent.

His lawyer, Stephen Kenny, has been confident for some time now that Hicks will have his conviction quashed by the US legal system, in part because of the similar outcome for former Guantanamo detainee Noor Mohammed. Hicks' former lawyer Dan Mori concurred and has told Fairfax media the US admission of innocence marks "the beginning of the end" of Hicks' ordeal.

David Hicks made headlines late last year when he heckled Attorney General George Brandis at a Human Rights Commission awards ceremony. Questioned afterwards by the media Brandis labelled Hicks a terrorist, "David Hicks, both in his book and also in his plea bargain document, confesses to acts which under Australian law… we define as terrorism offences."

The definition that Brandis was likely referring to can be found in the Counter-Terrorism Legislation Amendment (Foreign Fighters) bill, in legislation spearheaded by Brandis himself and passed by the government last year.

Hicks always maintained his innocence; an Alford plea allows a defendant to maintain his innocence while admitting that there is enough evidence to convict him.

Hicks was sentenced under the Military Commissions Act in 2007, one year after Congress passed the act, and five years after he was captured in Afghanistan and sold to the US for a bounty.

In the end his imprisonment in Guantanamo Bay detention centre lasted for six years and was followed by nine months in an Adelaide prison. In 2004 Hicks made allegations of mistreatment by US forces, and has maintained that he was tortured during his detainment. Other former detainees have made similar allegations. The Justice Campaign, a group whose stated aim is to get justice for Hicks, has filed a compelling series of articles and reports that strongly suggest Hicks' allegations of torture are true.

A common principle of most legal systems a law cannot be applied retroactively, a suspect cannot be charged for an act that wasn't an offense when he or she committed it. A law that overrides that principle is called ex post facto. In the US, but not Australia, there is a strong constitutional prohibition against such laws.

In 2012, while considering the case of Salim Hamdan, Osama bin Laden's driver, the the US Court of Appeals for the District of Colombia ruled that the crime of "material support for terrorism" was ex post facto and thus legal before 2006. Since that ruling there has been speculation that Hicks' conviction would be overturned.

There have been a number of complicating factors slowing Hicks' appeal for an overturning of his conviction. For instance, as part of his plea agreement, Hicks agreed not to appeal. As explained by Stephen Kenny to the ABC, "the United States government is saying 'although he's innocent he signed this agreement not to appeal and therefore the court has no jurisdiction to consider it and secondly, as a matter of contract law, the court should hold David to his bargain".

The US government likely relented because the Military Commission has it's own jurisdiction and has already set aside the conviction of the former detainee, Noor Mohammed from Sudan.

Like David Hicks Mohammed was captured and handed over to US forces within a year of 9/11. He was convicted (under the Alford plea) of providing material support for terrorism in exchange for a reduced sentence and an agreement to provide potential testimony against other detainees.

The Pentagon framed the overturn of Noor Mohammed's conviction this way, "Subsequent to his commission proceedings, decisions by the D.C. Circuit Court of Appeals in separate commissions cases established that it was legal error to try the offense of providing material support for terrorism before a military commission."

David Hicks' father, Terry Hicks, who in 2003 famously caged himself on a New York street in a demonstration against his son's detention in Guantanamo, is hopeful, telling the ABC, "I think once it all comes out positive, then we can all get on. I think what happens is a cloud lifts, the question marks are all gone."

*An earlier version of this article didn't make it clear that David Hicks never admitted guilt, he entered an Alford Plea. It also incorrectly stated that Hicks was captured on a battlefield.

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