David Hicks and the death of a legal system

"There is insufficient indication… that the appellant reiterated his desire to not appeal within 10 days." In other words, Hicks had not given sufficient grounds to show that he had waived his right of appeal. "Thus we hold the waiver is invalid and unenforceable." The result: "The findings of guilty are set aside and dismissed and the appellant's sentence is vacated."

The second point noted by the review commission, citing the Court of Appeals for the District of Columbia Circuit case of Al Bahlul (2014) was that "it was a plain ex post facto violation" to try a person for the offense of providing material support to terrorism after the fact. It was a "prejudicial error" that required a vacation of the conviction. While Al Bahlul's plea was different from Hicks, "those differences do not dictate a different result." Hicks, in other words, had been bludgeoned by unlawful retrospective punishment.

In a most conspicuous way, the treatment offered to Hicks did not merely violate every sacred canon of presumed innocence, it suggested a new legal order, one stacked with ghastly, Kafka-like qualifications. In the sinister legal purgatory of Guantánamo, Hicks could suffer Washington's own version of a disappearance, with connivance from a subservient Canberra.

Australia's political authorities continue that line, trumpeting a view that validates outsourcing torture, detention and confinement of its own citizens. (They can't even be patriotically indecent enough to inflict cruelties on their own people.) Showing a continuing tendency to ignore evidence placed before him, Australian Prime Minister Tony Abbott was resolute about the quashed sentence. "David Hicks was up to no good and I'm not in the business of apologising for the actions the Australian government takes to protect our country." (The statement would better read "inaction" in the name of Australian security.)

Others have preferred to ignore the procedure as a trifle. Commercial radio stations such as Sydney's 2UE suggested that the quashing of terrorism convictions did not imply he was a "saint". "He may be legally innocent, but not absolved of the guilt he did [sic]." Guilt has many shades, and such arguments fittingly ignore the one critical issue in all of this: that of the law. In the realms of such debate, a sober middle ground is nigh impossible.

The opposition leader, Bill Shorten, proved surprisingly qualified in his statements. "There is no doubt on one hand David Hicks was probably foolish to get caught up in that Afghanistan conflict, but clearly there has been an injustice done to him" (The Daily Telegraph, Feb 19).

The troubling feature of the findings by the review commission is that, at its heart, little is made of the plea bargain system itself. Nor is the entire military commission process examined in its crude corrosion of judicial protections. The conviction was quashed because it violated a procedural requirement, and a judicial requirement. Invalidating a badly understood waiver is one thing; invalidating the entire process of how he was dealt with, quite another. We can at least take heart from the fact that the judges were privy to ex-post facto nastiness.

For that reason, the fate of Hicks remains the greatest affirmation of fiendish legal inventiveness, the sort of cleverness that threw the law book out in favour of gossip, arbitrariness and political judgment. It is one the US legal system has, and continues, to pay dearly for. The Australian citizen, on the other hand, can always rely on his or her own government to surrender liberties at the drop of the judicial hat, an anaemic form of patriotism if ever there was one. Washington, right or wrong, will have its day.