Breaking Hicks

ALMOST a decade after being captured in Afghanistan and sent, hands bound and mouth covered with a blue surgical mask, to a prison at Guantanamo Bay, David Hicks may finally have his day in court. On Wednesday, the NSW Supreme Court froze profits from his published memoir, pending an application by the Commonwealth Director of Public Prosecutions to seize the profits as proceeds of a crime. Hicks and his legal team will contest the order.

''Basically, the bottom line is yes, now he's going to have his chance,'' says Hicks's father and long-time spokesman, Terry. ''Everyone says he's guilty, and he's done this and done that, and it's never been tried in court.''

The court action on August 16 will not be a re-examination of Hicks's case or his admission that he provided material support for terrorism. The issue will go to Hicks's profile as Australia's most infamous one-time adherent of al-Qaeda, and the profits taken from the book he published last year, Guantanamo: My Journey.

''I am not, and have never been, a supporter of terrorism,'' Hicks writes in the opening pages. ''I am not a public threat. I did not harm anyone - I never attempted or planned to - nor was I accused of such. And I did not break any Australian, US or international laws.''

Terry Hicks wants a fair hearing. ''We're hoping it will be a proper judicial way of going, not like it was before. The other thing, too, is a lot of people don't realise David was never convicted of terrorism,'' he says.

The Commonwealth DPP has invoked the Proceeds of Crime Act, a federal law, which sets out a convoluted scheme to trace, restrain and confiscate the proceeds of crime against domestic law, even if someone has not actually been convicted of a crime. Sometimes it can also be deployed to confiscate the proceeds of crime against an overseas law.

Apart from the obvious targets such as houses, cars, jewellery, contents of bank accounts, it also attempts to target ''literary'' proceeds obtained by way of selling, publishing or otherwise telling a story.

To recover the royalties, an order has to be issued by a court after an application by the DPP, with the court taking into account a range of factors set out in the legislation. These considerations include whether publication was in the ''public interest''.

Leading lawyers who spoke to The Age said that it would not be hard to mount an argument that any discussion, including in a memoir, of the highly fraught and divisive Guantanamo processes could be in the public interest.

Several lawyers yesterday questioned the pursuit of Hicks the author on Australian shores. The very legitimacy of Hicks's conviction by a US military commission will be tested by the case, they say. Under the law, a person cannot profit from their literary proceeds arising from a foreign indictable offence. Legislation introduced by the Howard government to explicitly cover the US military commission system has since been repealed.

Professor George Williams from the University of New South Wales, who has stood for ALP pre-selection, says he is disappointed by the DPP's action, given the background to the case. ''I would have been happy to see them not proceed.'' He noted that while these legal proceedings could go on potentially ''for years'' if Hicks chose to fight it out in the courts, it could also provide him with a famous vindication.

Williams strongly doubts the decision to pursue Hicks was politically motivated, as alleged by some Greens politicians, and said he had faith in the independent judgment of the DPP who would have properly weighed up the decision to pursue Hicks.

''I don't see this as a vendetta,'' Williams says. ''It was a matter of judgment, I suspect they think this falls within the letter of the law.''

Hicks has also found an unlikely champion in Peter Faris, QC, who is known for his conservative political views. On the legal merits of the case, however, Faris doubts whether the recovery action will succeed as the relevant legislation is ''so badly drafted'' and the case has many technical hurdles. The Hicks case, according to Faris, is unusual and complicated. First, since Hicks's plea was taken in a military commission, he was not convicted by an overseas court of any crime. ''He's had a finding against him by a military tribunal that isn't a court, and I doubt that finding is a conviction as we understand it.''

Hicks's route to the commission, as it is well documented, was tortuous. He was handed over to the US authorities in Afghanistan in December 2001. In January 2002, he was taken to Guantanamo Bay where he was detained by the US military on the grounds that he was an enemy combatant. After being held for almost three years Hicks was charged with conspiracy, attempted murder and aiding the enemy and was committed to face trial before a military commission which was convened by order of president George W. Bush.

However, before any trial could proceed, in a landmark ruling in 2006 the US Supreme Court found that the military commission system itself was unlawful. Later that year, the system was re-established by an act of the US Congress and, in early 2007, Hicks faced fresh charges and was committed to face trial before a reconstituted military tribunal.

In March 2007 - more than five years after being incarcerated in Guantanamo - Hicks struck a bargain and pleaded guilty to an offence of providing material support for terrorism arising out of his activities in Afghanistan. He was convicted and sentenced to seven years' imprisonment (of which six years and three months were suspended under a pre-trial agreement). Under the bargain, he agreed to assign to the Australian government any literary proceeds relating to ''the illegal conduct alleged in this charge sheet''.

Under transfer arrangements Hicks served nine months in Yatala Prison, back in his hometown of Adelaide. Hicks was released on December 29 2007, but was placed under a 12-month control order.

Richard Ackland, who publishes the legal publications Justinian and the Gazette of Law & Journalism, argues Hicks was elevated to the status of national ''bogyman'' during the Howard years, and while the decision to pursue him in the courts over the proceeds of the memoir was made by an independent body, the DPP's prosecution ''has political ramifications''.

''Hicks pleaded guilty to an offence invented by Congress after the fact, it did not exist at the time he allegedly committed it,'' says Ackland.

Despite being on the statute books, the proceeds of crime provisions have tended to be applied inconsistently. Notably, the only time the Commonwealth DPP invoked the literary proceeds clause was in relation to the publication of My Story, co-authored by Schapelle Corby, who was convicted and sentenced in Bali in 2005 for smuggling marijuana into Indonesia.

In April 2009, the Queensland Supreme Court ordered that the authors of My Story could keep $270,000 while the Commonwealth would recover $128,000. No reasons were published for the decision.

Although there are similar state laws, many others with criminal pasts such as self-confessed underworld hitman Mark Brandon ''Chopper'' Read, who spent 23 years in jail, have been left alone.

Read's notoriety has helped him publish more than a dozen crime books. He has also, famously, been the subject of a movie and has allowed his personal brand to be attached to a boutique beer called ''Chopper Heavy''.

The DPP declined to comment on its decision to pursue Hicks.

The enigma of David Hicks was captured by US Brigadier General Jay Wood, who wrote a secret US army assessment of how Hicks conducted himself during his first three years at Guantanamo Bay.

''Detainee's overall behaviour is compliant, but he has been deceptive,'' Wood wrote. ''Detainee was highly influential and often led in prayer, conducted speeches, and organised disturbances. Detainee's rapport with his interrogators determines the length and validity of his interviews. The detainee has otherwise been passive during his stay.''

Intended for American eyes only, Wood's assessment was leaked to Wikileaks and published in April. .

At Guantanamo, Hicks was deemed to be of ''high intelligence value''.

''The detainee's truthfulness level is low, and he is very likely to have information regarding terrorist operations and tactics,'' Wood claims in the secret assessment.

''Detainee used numerous aliases and obtained tremendous knowledge on ingress and egress routes to and from Pakistan and Afghanistan, as well as the locations of guesthouses throughout the region.''

But none of this information was considered crucial enough for the US to continue ''exploitation efforts'' - a euphemistic way of describing the interrogation Hicks underwent - after he was put on trial in 2004 at the specially convened US military commission. His mood had also soured.

''Detainee often attempts to procure information from US military personnel with whom he interacts,'' Wood wrote. ''He sometimes refuses to eat or drink, take medication, and shower.''

In his book, Hicks recalls the experience at Guantanamo somewhat differently.

''I do not sleep much because my captors tell me it is not allowed. Yet, even if I do manage to sleep, my fears fuel my nightmares - fear of pain, fear of the beatings, fear of the strange mind games I am subjected to. My captors never sleep. They work around the clock, devising new ways to harm me and the other detainees.''

The book is heavy with description of his time at Guantanamo, including diagrams showing the cells and conditions he had to endure. The abuse at the hands of his American guards is a regular theme. ''They seems to look for any opportunity to physically assault us - and definitely appeared to enjoy do so.''

Random House, publisher of the Hicks memoir, declined to speak to The Age about the court case, reportedly involving around $10,000 for Hicks - though his father says he doesn't have a clue how much money is involved.

He sees the court action as a further example of political pressure on his son. ''I just have that feeling that the agenda is probably a little more political than we realise,'' he says. ''Possibly the DPP have been put under a lot of pressure to proceed with this business.''

He spoke with David on the day of the court ruling but doesn't believe it would be a good idea for him to revisit the experience.

''We know what this is causing. It brings back memories. He had this when writing the book; you go backwards.''

Farah Farouque is law and justice editor. Daniel Flitton is diplomatic editor.