Was David Hicks convicted of a ‘non-crime’?

David Hicks could have his criminal charges overturned. AAP/Tracey Nearmy

On Monday the US Court of Appeals for the District of Columbia handed down a decision which invalidated one of the charges against Salim Hamdan – Osama bin Laden’s driver. Hamdan was convicted of the crime of “material support for terrorism” – just like David Hicks and numerous other Guantanamo detainees who may now never be tried.

Although “material support for terrorism” was criminalised by the 2006 Military Commissions Act, the court held that it was not a crime between 1996 and 2001, which was when Hamdan was working for Al Qaeda, and therefore could not form the basis of a valid conviction. The same principle presumably applies to Hicks, given he was captured in Afghanistan in 2001.

It has already been noted in the US that this is a remarkable decision from a “very conservative panel of a court that has not exactly been sympathetic to claims by Guantanamo detainees".

Retroactive criminal punishment

There is a long-standing legal principle known as nullum crimen, nulla poena sine lege (“no crime or punishment without law”) which holds that a deed must be prohibited by law at the time it was done, or the State has no right to punish anyone for it.

This principle (also known in international law as the principle of legality) was famously tested at Nuremberg and Tokyo after World War II. Some of the crimes of the Axis powers were deemed too heinous to go unpunished, yet arguably were not specifically prohibited in international law at the time they were committed. Out of this debate crimes against humanity arose in their modern form.

Interestingly, the US Congress stated in passing the Military Commissions Act that it merely codified existing crimes, rather than creating new ones (the same arguments used after World War II, and in an earlier review of Hamdan’s conviction). However, the Court of Appeals unanimously rejected this view, holding that “the statute does codify some new war crimes, including material support for terrorism".

The judgement also noted that the US Constitution bars “ex post facto” laws that “retroactively punish conduct that was not previously prohibited, or that retroactively increase punishment for already prohibited conduct".

The prohibition on retroactive punishment goes to the very heart of the rule of law – without it, what is to stop those in power from inventing laws to punish their opponents, or indeed anyone at all? With this in mind, it is hardly surprising that it is enshrined in so many high-level legal instruments.

What now for Hicks?

Australian commentators have already noted that the Court of Appeals decision appears to be manna from heaven for David Hicks, but there are a couple of problems he faces if he wants to have his own conviction quashed.

First, Hicks struck a “plea bargain” in 2007 with the Pentagon official in charge of his military commission, which included a commitment not to challenge his conviction.

US experts, including the Guantanamo prosecutor in charge of Hicks’ case Morris Davis, have said this makes it unlikely a US court will give him any further hearing, but his lawyers are determined to proceed anyway.

Incidentally, Hicks also promised not to describe his experience in Guantanamo Bay for at least one year after his transfer to Australia. When this ban expired, he did eventually write all about it in his book Guantanamo: My Journey.

Although safe under the plea deal, he was investigated by the Australian Federal Police under the Proceeds of Crime Act 2002. The Commonwealth Director of Public Prosecutions decided in July this year to drop the case, and in a statement to the media explained that the plea deal (and associated evidence) could not form the basis for further prosecution. At least one commentator observed that this statement cast doubt on the Government’s claims that Hicks’ deal was not made under duress, or under some kind of shady pact with Dick Cheney.

Hicks’ plea was unusual. The CDPP explained that it was what is known as an ‘Alford plea’ in the US. It involves admitting that the evidence could prove the prosecution’s case beyond reasonable doubt, and accepting the punishment, but not admitting to the actual commission of the acts in question. Such a plea cannot form the basis for a conviction in Australia.

It must now be asked whether a plea to a non‑existent crime is invalid from the beginning, which would mean Hicks’ certificate of conviction (as supplied to the Australian authorities) is automatically void. This would certainly simplify things, but it would be awkward for those who have consistently defended the process, including former Prime Minister Howard and former Foreign Minister Downer.

As Hicks’ former military lawyer Dan Mori observes, the Howard Government should be embarrassed that it failed to object to one of its citizens being convicted of what has proven to be an archetypal ‘trumped‑up charge.’ Hicks now plans to sue the Government the Government for damages, which could dredge up further damaging details about what was known and decided at the time.

Second, there is the chance that the US Justice Department may now appeal the decision. If such an appeal is allowed and the US Government prevails, Hicks (and Hamdan) could be back to square one.

The Obama administration has previously expressed reservations about the crime of material support for terrorism, and is against the Guantanamo military commissions (even if it lost the fight to close them down), so there may not be any such appeal. In that case, only the dubious plea bargain would stand in the way of Hicks’ criminal record being rewritten.

The Bigger Picture

This latest legal development only serves to underline the flawed legal basis of everything that goes on at Guantanamo Bay, which is often aptly described as a “legal black hole”.

Thanks to Wikileaks, we also know that it is far from being exclusively a secure place to detain the worst of the worst, which is how it is portrayed.

The US and Australian governments pride themselves on their human rights records, but Guantanamo Bay casts a long shadow over their credibility in this regard.