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Hicks sees a new dawn

By Edwina MacDonald and George Williams - posted Thursday, 29 March 2007

In the end it was David Hicks himself, and not the Australian or US governments, who ended the uncertainty.

By pleading guilty, Hicks will serve a fixed sentence with the knowledge that there is an end in sight. Had Hicks pleaded not guilty, he may still have been found guilty by the military commission.

He would also have risked a sentence of life imprisonment, the maximum penalty for providing material support for terrorism.


Instead, the prosecution and defence have agreed upon a sentence that will be presented to the commission today. The guilty plea means that Hicks should soon be able to return to Australia.

Last year, Australia and the United States agreed to permit prisoners such as Hicks, who have been sentenced by a US military commission, to serve their time in an Australian prison. Hicks' guilty plea could be cast as a victory by the Australian and United States Governments. They can now point to a successful prosecution in the military commission.

After five years, they have finally achieved their first conviction. But that this has been brought about by Hicks' plea, and not after a trial, is significant. It bypasses the many questions about the fairness of the process, such as the potential to use hearsay statements or evidence that was obtained by coercion.

However, it seems that not even Hicks can end the debate. People are already questioning the integrity of his plea. This week, Hicks' Australian lawyer, David McLeod, indicated that an option Hicks was considering was how to get out of Guantanamo Bay at the earliest opportunity.

It also says a lot that members of the Greens and National parties are singing from the same song sheet.

Greens party leader Bob Brown said yesterday that Hicks' guilty plea was simply a plea for release, for an exit from the inhumane Guantanamo gulag. Nationals senator Barnaby Joyce said the only thing that was guilty was the judicial process under which he was being tried.


The plea will also come under further sustained legal attack. It might even be overturned.

Hicks' conviction does not resolve the allegations of unfairness and unconstitutionality levelled at the military commission. Hicks and other Guantanamo Bay inmates have already foreshadowed a challenge to the commission in America's highest court, the Supreme Court.

While there are continuing doubts about the plea and legal challenges to the trial process, there can be no closure to the case. Even a guilty plea might be undone if the commissions are struck down.

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First published in the Herald Sun on March 28, 2007.

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About the Authors

Edwina MacDonald is based at the Gilbert and Tobin Centre of Public Law, UNSW.

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Other articles by these Authors

All articles by Edwina MacDonald
All articles by George Williams

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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