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HICKS’ CASE DROPPED. July 25, 2012

Posted by wmmbb in Australian Politics, Human Rights, Social Environment, US Politics.
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The case against David Hicks alleging he was profiting from crime from the sale of his autobiography has been dropped by the Commonwealth Director of Public Prosecutions.

Is it now open to him to seek damages through the courts for the media gag order imposed following his release and for damages for the treatment he received at the Guantanamo Bay torture camp?

The testimony of a former prison guard of the treatment of prisoners that he was personally involved with at Guantanamo is horrendous(via Crickey). Two former British detainees attempted to sue for damages but the US Supreme Court refused their appeal on what might be described as a technicality:

The case was dismissed because the alleged abuse occurred before the U.S Supreme Court said that the constitution covered detainees in Guantanamo.

Of course, promoting international law, it is very useful not be a signatory to The International Declaration of Human Rights and other protections of human rights.

Jamelle Wells reported for the ABC:

Outside court today, Hicks said the DPP’s decision brought him some closure and helped clear his name.

He said he was pleased the authorities seemed to have concluded that his conviction at Guantanamo was “unfair” and “obtained through duress”.

“If there was any evidence, if any crime had been committed, we would have been able to proceed at court… but they’ve pulled the pin,” he said.

“I feel like this acknowledges Guantanamo Bay and everything is illegal.”

In a statement, the DPP said the decision to drop the case had been made after new evidence came to light.

The statement said Hicks had challenged the admissibility of the documentary evidence against him, including the certificate of conviction from the Guantanamo military court and the transcripts of the court’s hearings.

“The challenge also relied upon the fact that Mr Hicks entered what is known in the United States as an Alford plea,” the statement said.

“This is a type of plea not recognised in Australia, whereby a defendant is able to acknowledge that the available evidence is sufficient to prove the case beyond reasonable doubt without admitting commission of the offences charged.

“In support of the challenge, the defendants served evidential material not previously available to the CDPP and AFP.

“If, at any stage in the conduct of legal proceedings by the office, there is a concern as to the sufficiency of available evidence, then the office will review the matter regardless of what stage the proceedings have reached in the court process.

“Accordingly, I have taken advice from the Queen’s Counsel from the private bar who has been briefed in the matter and from lawyers within my office.

“After careful consideration of all matters, including the advice received, I reached the view that this office was not in a position to discharge the onus placed upon it to satisfy the court that the admissions should be relied upon and decided that these proceedings should not continue.”

The Commonwealth has been ordered to pay Hicks’s court costs.

Dropping the case raises the question that the allegation was not thoroughly investigated in the first place, or that the documents relating to an indictable offence were taken as face value. At Crikey, Bernard Keane observes that the implication is that the submitted evidence could not be relied upon, aside from the acceptability of plea bargaining. In this case we have access to a primary document. The Commonwealth Director of Public Prosecution has issued a media release to explain there decision quoting the Director as saying:

“As is often the case under the Proceeds of Crime Act, these proceedings were commenced with initial steps to preserve assets from dissipation, in order that the assets placed under restraint could remain available to satisfy any orders that the Court might ultimately make.

The evidence available to my Office was sufficient to commence those proceedings on the basis that Mr Hicks stood to benefit financially from the commercial exploitation of his notoriety resulting from the commission of a foreign indictable offence.

The evidence included Mr Hicks’ plea of guilty before the United States Military Commission and admissions made by him before that Commission. These admissions are recorded in the following documents, which were obtained through international cooperation:

  • A certificate of conviction issued by the Military Commission in relation to Mr Hicks, for an offence against 10 United States Code section 950v Part 25 – providing material support for terrorism, to wit al Qaeda.
  • The transcript of the Military Commission hearings on 26 and 30 March 2007.
  • The Stipulation of Fact, Charge Sheet and Pre-Trial Agreement produced in the course of the Military Commission proceedings against Mr Hicks.

Following commencement of the proceedings, Mr Hicks challenged the admissibility of the documents listed above, based upon the conditions and circumstances in which he made the relevant admissions. The challenge also relied upon the fact that Mr Hicks entered what is known in the United States as an “Alford plea”. This is a type of plea not recognised in Australia, whereby a defendant is able to acknowledge that the available evidence is sufficient to prove the case beyond reasonable doubt, without admitting commission of the offences charged.

In support of the challenge, the Defendants served evidential material not previously available to the CDPP and AFP.

If, at any stage in the conduct of legal proceedings by the Office, there is a concern as to the sufficiency of available evidence, then the Office will review the matter regardless of what stage the proceedings have reached in the court process.

Accordingly, I have taken advice from the Queen’s Counsel from the private bar who has been briefed in the matter and from lawyers within my Office. After careful consideration of all matters, including the advice received, I reached the view that this Office was not in a position to discharge the onus placed upon it to satisfy the Court that the admissions should be relied upon and decided that these proceedings should not continue”.

David Hicks is interviewed outside the Supreme Court in Sydney:

Is it sufficient to claim, as he does, that he has been vindicated. In the light of this decision, should the Australian Government take up his case with the Americans? I would like to continue in the  belief as to the thoroughness and the justice of the Australian court processes as they related to serious charges, as distinct from “slot machine justice”. Still, and it is a great wrong, David Hicks can count himself fortunate compared to those you remain at Guantanamo. Glenn Greenwald observes:

Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a “meaningful” opportunity to contest the legality of their detention.

. . .

The New York Times Editorial Page today denounced these new rules as “spiteful,” cited it as “the Obama administration’s latest overuse of executive authority,” and said “the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.” Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees’ right to legal counsel.

. . .

What made Guantanamo controversial was not its physical location: that it was located in the Caribbean Sea rather than on American soil (that’s especially true since the Supreme Court ruled in 2004 that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty — and what still makes it such — is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama’s so-called “plan to close Guantanamo” — even if it had been approved in full by Congress — did not seek to end that core injustice. It sought to do the opposite: Obama’s plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.

Whatever the faults of those who framed The US Constitution, it is clear they were Common Law lawyers, and they did not include into the writ of habeas corpus as an afterthought but as process central to their conception (sec 9.2). The document produced at Runnymede will be 800 years ago in 2015. In 1297, the long title was “The Great Charter of the Liberties of England and the Liberties of the Forest”.

ELSEWHERE:

John Quiggin addresses the same topic observing observing that coercive evidence is not probative in Australian, or indeed American, courts, except perhaps Military Commissions:

None of this proves that Hicks was innocent, either morally or legally. But that’s an inherent problem in a corrupted legal process. Since the trials are rigged in such a way that they can never produce an acquittal (those who might be acquitted are simply kept in detention without charge), a conviction doesn’t prove anything[2]. Morally, Hicks’ eagerness to go to war in any cause that would take him (he applied to join the Australian Army after returning from Kosovo) is pretty repugnant, but those who gave us Gitmo and the Iraq War are in no position to throw stones.

While I would not attempt to justify Hicks behavior, I think it relevant to take into account that at the time of his involvement, firstly in Kosovo and later elsewhere, he was a convert to Islam. The failure at the time for an international response to injustice meted out to Muslims was a concern, and was presumably part of Hicks’s motivation.

Then you have to question the vetting process that products of the bounty hunters in Afghanistan, I imagines principally but not exclusively from the Northern Alliance, who swept them up from the battlefield. OK some spoke unfamiliar Afghan languages, but Hicks speaks only English. Exactly, what were Bush and Howard pushing? Probably the politics of fear, and that seems to have worked a treat if the intent was to create a repressive legal and social environment.

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