To join one terrorist group could I suppose be regarded as careless. To join four is pretty much beyond the pale.
Many of the basic facts in the Hicks case are not in dispute. Because of a lavishly taxpayer-funded film, The President Versus David Hicks, we have in Hicks's own words some account of his activities.
For example, he spent a considerable time with the Pakistani based terror group Lashkar-e-Toiba. LET is one of the most vicious and murderous terrorist groups in the world. It has killed many people and has made frequent attempts to kill Australians.
In the film a letter from Hicks to his father is quoted in which he writes: "Every night there is an exchange of fire. I got to fire hundreds of rounds. There are not many countries in the world where a tourist can go and stay with the army and shoot across the border at its enemy, legally."
Recently on the ABC's Lateline Tony Jones declared, with all that smug and ignorant banality in which Lateline specialises, that David Hicks had never tried to kill anybody. Well, just who was Hicks shooting at when he was with LET? Would the innocent Indian soldiers who may have been killed by Hicks feel just the same as Jones?
Undoubtedly the Americans deserve criticism for allowing the process to drag on so long, although it's worth noting that the French took more than three years to bring accused terrorist Willie Brigitte to trial.
The past two years of delay for Hicks were caused by legal appeals against some of the technicalities of the military commissions which will try Hicks and other Guantanamo detainees. Nonetheless the delays before that were due in no small measure to disorganisation and foot-dragging by the Bush administration. Bob Woodward makes this clear on pages 275-6 of his book, State of Denial.
He describes a National Security Council meeting at which Condoleezza Rice attempted to move along an elaborate inter-agency process to establish legally reliable military tribunals. Then attorney-general John Ashcroft was a strong advocate as he knew they would eventually be reviewed by US courts.
Then defence secretary Donald Rumsfeld dismissed all this, saying simply: "They are bad guys."
Rumsfeld would not move quickly as he believed the priority should be keeping the Guantanamo inmates off the battlefield and getting information from them.
As with many things, Rumsfeld's stubborn, ill-advised blocking tactics stored up a world of trouble for the Bush administration and its friends, as Guantanamo became an effective focus for anti-Americanism.
Nonetheless, it would be a very bad day indeed if Hicks were released without having to answer for his actions. According to the charge sheet against Hicks he first joined the Kosovo Liberation Army and fought for them. He later joined LET and trained with and fought for them. According to the charge sheet, Hicks "engaged in hostile action against Indian forces".
According to the charge sheet Hicks, with LET assistance, travelled to Afghanistan and attended al-Qa'ida training camps, training in weapons, explosives, land mines and the like. He met Osama bin Laden and complained of a lack of English language training materials.
After September 11 2001, Hicks rejoined with al-Qa'ida to fight against Afghan Northern Alliance, US and other coalition forces. One member of the coalition Hicks wanted to fight against was Australia.
Some of these facts are disputed by Hicks, but many are not. Hicks at one point in correspondence back home describes himself as a member of the Taliban.
Any way you dice it, Hicks's actions are morally repugnant, as is the anti-Semitism he expressed in correspondence with his father. All the actions that Hicks admits to would be offences today under Australian law.
Part of the public confusion about Hicks has come from the way the laws of war work. Often war criminals have been tried for actions that were not outlawed by statute during the war when they took place.
In a normal war enemy combatants can be held until the cessation of hostilities. That is no good with the war on terror which could go on for decades. So the US has a review of whether people in Guantanamo are still a threat. The US has released more than 350 Guantanamo inmates, and more than a dozen of these have been captured or killed later as they attempted, once more, to kill innocent people.
Terrorist cases do involve real legal difficulties. Just as in a pedophilia case the rights of the accused are compromised in the interests of justice - in evidentiary matters and in the suspension of the normal right for a defendant to face their accuser - so in terrorist cases there are genuine concerns about disclosing intelligence sources and the like.
What is necessary is a fair legal procedure, but it does not have to be one which precisely replicates a normal criminal trial.
The Australian campaign for Hicks has been a parody of liberal self-regard and moral vanity. It has demonstrated clearly that the class of civil liberties lawyers and their ilk do not take the war on terror seriously. In their closed and privileged world they have no understanding of the real dynamics of terror.
Justice Michael Kirby demonstrated this with foolish remarks this week saying there had been an overreaction to 9/11.
Presumably Kirby has never read the numerous, authoritative al-Qa'ida and other jihadi discussions about the Islamist ethics of nuclear terrorism, and their ambition to acquire and use nuclear weapons.
Despite the fascist Howard Government's ruthless suppression of all dissent, in fact the Hicks debate has been ludicrously one-sided, as the only people who have routinely spoken on the case have been Hicks supporters.
This, added to the unreasonable length of time the case has taken, has made the politics of it increasingly difficult for the Howard Government.
There are four possibilities now for Hicks - that he'll be found guilty, that he'll plead guilty in a plea bargain, that he'll be acquitted or that the appeals process will further delay the trial. The last is what his lawyers are banking on. They are hoping it gets just too hot for the Howard Government and that eventually Canberra will have to request Hicks be sent home untried.
That would be a great victory for those who have argued all along that Hicks should never have been detained at all. It may be that there is a divergence of interests arising between Hicks and his lawyers.
His lawyers would like to make a broad political point against Guantanamo. On the other hand, a plea bargain may be Hicks's best chance of getting home, especially if it offered him a sentence of just a little more than time already served, so that he could return to Adelaide and perhaps spend 18 months more in an Australian prison.
Politics permitting.
By Kelvin Thomson - posted Thursday, 22 February 2007
