Hicks gag affects our liberties

As late as last month, David Hicks's lawyers were still trying to delay his trial in the vain hope that the US Supreme Court would reject the new military commission process.

Had a stay been granted, you can be sure the US and Australian governments would have been blamed for the subsequent delay.

But the chances of this were always slim. The new commissions comply to the letter with the concerns of the Supreme Court. If the court were to agree to hear a new challenge, the majority would have been reinforced by the new Chief Justice. (In a lower court he had upheld the earlier military commissions.) In any event, the same federal judge who granted Hicks a stay in 2005, Colleen Kollar-Kotelly, rejected this application.

For Hicks, this was the last throw of the dice. He did what he probably should have done three years ago: he instructed his lawyer to negotiate a plea bargain. This had always been in Hicks's best interests.

Rather than abandoning him, the Australian Government not only bankrolled his defence, it extracted two crucial concessions: no death penalty, and any sentence to be served in Australia. The latter was risky, as once here he might challenge his imprisonment before an Australian court. The brief sentence agreed removes any incentive to do this.

Hicks has now earned the eternal enmity of the terrorist movement he once served. He has also pulled the rug from under the burgeoning Bring David Hicks Home industry. Having painted Hicks as the innocent wanderer, shackled in his cell, underfed and tortured, kept in a concentration camp in conditions reminiscent of the Nazi regime, the reality has exposed the hyperbole. He can no longer be used as a weapon in the Australian political debate, nor in the wider struggle to change Australian society, through, for example, a bill of rights regime.

Hicks has been rewarded with a sentence that is egregiously lenient. Admittedly, he pleaded not guilty to providing material support or resources for an act of terrorism. But he now says he intentionally provided material support to al-Qaida and was associated with an armed conflict. He had to satisfy the commission that his plea was genuine and not done, as the Hicks industry claims, just to get home. Hicks, of course, would have known the US had sufficient evidence to prove this, and probably more.

It is not that long ago a wartime conviction for a lesser offence could have resulted in the maximum punishment. So he has done very well. He was lucky that when he was captured, he was thought to be more valuable alive than dead. Then he was lucky to have ended up in American hands: who else would have given him a Major Michael Mori?

There is one aspect of the plea bargain, and one only, that is on principle wrong. But as there is no political mileage in it, will the Hicks industry argue it with the same passion it would have had he gone on to fight the case he was doomed to lose? What is intrinsically wrong is gagging a man who has served his sentence, however inappropriately short that may seem.

Apart from this, there is little that Hicks can legitimately complain about in relation to his detention. Critics of the US lack a historical and comparative perspective, and see far too much through the prism of the Australian criminal justice system. The Americans would have been perfectly entitled to hold Hicks for the duration of hostilities, even if he had been a regular soldier. This has happened to many Australians in living memory, but unlike Hicks they too often fell into the hands of barbarians. Just look at the photographs of the survivors of the Japanese death camps, and compare them with Hicks.

While the military commissions have to be fair and conform to international standards, they do not have to be a mirror image of an Australian criminal trial with all its imponderable technicalities, its almost impenetrable rules on the admissibility of evidence and its many indulgences towards the accused.

Whether it is necessary to go as far as we do at home is a matter of increasing community debate. But this is neither the standard to be followed in war, nor is it the standard followed in other democratic countries. Indeed this may have been a consideration in allowing Willie Brigitte to be tried in France about a terrorist attack he had planned to take place here.