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When it comes to publishing, the situation is worse. Hicks faces a life long restriction on his freedom of speech. Fairly incredible, given that he has no ‘conviction’ entered in any ordinary court of law.
What the [publication ban means in practice is that Hicks has been forbidden for the rest of his life from writing or publishing anything about his Gitmo experiences that could turn a profit for himself, or for any other person or organisation – including say, Amnesty International. The only conceivable way Hicks can ever publish his version of events would be if he agreed to pay any proceeds into Australia’s ‘victims of crime’ compensation pool – again, this would be despite the fact his plea bargain was not the outcome of any normal US or Australian process of criminal justice.
“ What victims ? What crime ? “ Terry Hicks asks me rhetorically. His point being, the US military commissions involved are of dubious legality, and even the US Supreme Court has ruled against them on more than one occasion. In the case of Osama Bin Laden’s chauffeur Salim Ahmed Hamdan, the Supreme Court ruled in 2006 that the military commissions were neither authorized by federal law nor required by military necessity, and violated the Geneva Conventions.
Hamdan incidentally, remains in custody despite these rulings – and it was his latest round of hearings that triggered the testimony of Colonel Davis mentioned earlier.
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DAVID Hicks own big OE led him into to a form of rebellion beyond most parental nightmares. At worst, most Australian and New Zealand parents can be forced to cope with a haircut/lifestyle/spouse/voting preference that they can’t abide in their children, but eventually learn to live with. For Terry Hicks, his youngest child ended up embracing militant Islamic fundamentalism and re-naming himself Mohammed Dawood. That’s pretty extreme, right?
“It is. But I look at it like this,” he says. “The world is getting smaller.” Technology gives access to information, people can get from A to B in no time. “ Not only David, but a lot of young kids out there have the same access, and they want to have a look into what’s happening around the place. The problem is you can get into those cultures… but then can get into a spot of bother getting out.” After 9/11 when David wanted to get back to Australia, he found the borders had been shut down. Eventually the Northern Alliance got hold of him and sold him for a bounty to the Americans – who whipped him off to Guantanamo Bay.
It had been the culmination of several years of him trying to find a place and a way of making a difference. Hicks always had been a caring sort of child, his father says. He travelled, had even gone to Japan for a couple of years to try and raise racehorses. He ended up in Kosovo on the side of the good guys in that conflict, after the fighting had ended. He moved on to Afghanistan, well before 9/11, at a time when the puritanical Taliban were still capable by being seen by some credulous souls as a viable alternative to the corrupt warlords of the Northern Alliance.
After all, some very influential people had felt much the same way. Only a couple of years before David Hicks arrived, the Taliban’s positive role in a gas and oil pipeline project across Afghanistan was being touted to the Clinton administration – and in a Washington Post op ed – by none other than Zalmay Khalilizad, the Unocal oil company’s main lobbyist in Washington. Khalilizad went on to play an influential role in Iraq, and is currently the US ambassador to the United Nations.
When it suited, Khalilizad had promoted the same rosy view of the Taliban that would later land David Hicks in the torture rooms at Guantanamo Bay. “The Taliban do not practice the anti-U.S. style of fundamentalism practiced by Iran,” Khalilizad had written optimistically back in 1996. “We should…be willing to offer recognition and humanitarian assistance and to promote international economic reconstruction. It is time for the United States to re-engage,” he chided. Only after the Taliban became suspected in 1998 of being involved in the attacks on the U.S. diplomatic posts embassies in East Africa, did Unocal and Khalilzad change their tune.
David Hicks wasn’t privy to those top level briefings when he arrived in Afghanistan. For a wandering idealist like him, it would have still been possible in 1999 to believe that the Taliban were the best option available for rooting out the bad old ways of corruption, social distintegration and warlord violence. In the event, Terry Hicks says, it is not still clear whether his son ever did fire so much as a single shot in anger in any of his war zone adventures, including during his sojourn among the Taliban. After 9/11, Hicks was trapped, unable to return to Australia. It proved to be quite a short journey from there to Guantanamo Bay.
Hicks has signed a sworn affidavit saying that he was tortured while in the Guantanamo camp. Not waterboarding, his father says, but regular beatings. “Sleep deprivation…. He had his head slammed into concrete, he endured eight hours of beatings to his head, torso his feet, the back of his legs. I don’t disbelieve it. I believe it has happened.” Standard practice at Gitmo, borne out by the experience of other inmates. “I think this was one of the reasons for the gag order. To stop him from talking about it, especially before the election.”
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By year’s end, the Hicks family will know if the state will try to extend the control orders. If that happens, their legal counter challenge to the entire process could occur at that point. Right now, getting David back together again remains the top priority. Still, like a dog worrying a bone, Terry Hicks can’t let go of the bigger picture.
The way he sees it, the David Hicks and Dr Haneef fiascos are all part of what happens in social democracies when – as in the UK, Australia, New Zealand – the major political parties close ranks and speak as one on national security issues. The security services are left with no strong independent checks and watchdogs to make them justify their actions. Especially since 9/11, laws against terrorism have been rushed into place without striking anything like the proper balance between the needs of national security and the rights of the individual. Most security cases, he agrees could and should be conducted in open court, under the normal criminal court procedures that have been in existence for many, many years.
In the rare instances would truly be jeopardised by transparency you could still have a closed court, he says: “But the person who the evidence is against should be there to defend himself. The US military commission process says no, we don’t want them to know what we know about them.” Not even the defence legal team is allowed to be present, he adds. Only the prosecution is.
“It is a process that’s not going to work,” he concludes. “Because I still believe if you’ve done something wrong, you should be there to hear what they have to say about you. And give evidence against what’s been said.” The problems inevitably arise, he says, at the point where the military commission system crosses over with the criminal justice system, as verdicts are handed down, and sentences are delivered. At that point, the injustices become glaringly obvious. Those injustices are being seen by more and more people, he believes, optimistically.
Time for him to go. In only a couple of hours he’s got a public lecture to deliver out at the Drama School building in Newtown. The topic? Very broad, he replies dryly. These days it seems, Terry Hicks is fighting much the same battle his son thought he was fighting in Kosovo and in Afghanistan: in pursuit of a better world. In the end, David Hicks may not have changed very much at all, but he has succeeded in altering the reality his father inhabits. Not many sons and fathers have given each other so much.