Former terror suspect David Hicks is being denied justice again

DAVID Hicks pleaded guilty before a US military commission to providing material support for terrorism, so why shouldn't the Commonwealth Director of Public Prosecutions recover the profits from Hicks's memoir under the Proceeds of Crimes Act, right?

I'll tell you why not. But, before doing so, let's make a few things abundantly clear.

Hicks is (or at least was) a ratbag if not far worse. His book was selectively written, badly at that. It didn't sell nearly as many copies as it would have had he been more open about the journey that saw him train with terrorists in Afghanistan.

Those who support Hicks now - to the point of idolising him - go much further in their defence of him than this article will.

It is not mutually exclusive to have a low opinion of the man but defend his right to a fair trial and due process. That was the point most Australians arrived at towards the end of the Howard era, when they started to question whether what was happening to Hicks could have happened to them if they ended up in the wrong place at the wrong time.

Of course Hicks was more than an innocent backpacker stranded on the border between Pakistan and Afghanistan when the terror attacks on September 11, 2001, happened; much more, even by his own account. But that shouldn't affect his access to the same legal rights anyone of us would expect.

Hicks was taken into custody by the US military before being shipped to Guantanamo Bay and held in solitary confinement in January 2002. His first contact with the outside world was nearly two years later, in December 2003, which was also his first contact with a lawyer.

All up, Hicks was held without charge for more than five years, during which time he claims he was tortured.

But don't believe a ratbag like Hicks when he tells you he was tortured: the FBI has confirmed the sort of torture Hicks claims went on at Guantanamo Bay in its case assessments.

While readers may breathe a deep sigh and say "So what?" at this point, registering little sympathy for Hicks misses the point. The point is that his treatment is relevant to his confession, rendering it as having been given under duress at best.

After years of incarceration without charges being laid, after torture and limited contact with the outside world, Hicks was given a choice: more indefinite detention or plead guilty as he did and quickly be returned to Australia. What would you do? After that kind of treatment I am surprised he didn't plead guilty to the JFK assassination.

The lack of due process leading up to Hicks's guilty plea undermines its veracity. That's what happens when you bend the law: sometimes it breaks.

The military commission that charged Hicks (not soon after his January 2001 capture but halfway through 2007) was a replacement to the US president's commission, which the US Supreme Court ruled unlawful in 2006.

Two key reasons were given: it wasn't compatible with the Geneva Conventions and its procedures were unfair.

While the second incarnation of this kangaroo court had slight improvements on the first, problems persisted, which is why Amnesty International says it doesn't meet fair standards for fair trials.

It is also why US courts have been flooded with complaints, with judicial decisions on the constitutionality of the commission still pending.

The Australian government may not have seen fit to stand up for one of its citizens' rights to a fair trial, but the British government did for its citizens.

It wasn't happy with the procedures of the US military commission and demanded British citizens be returned, years earlier than Hicks was.

That's the sort of court process that underpins the present attempt to seize profits from Hicks's book. If we are going to seize the proceeds of crime for cases such as Hicks's, why don't we just round up all the alleged (that word is important here because, outside the dubious military commission, that is all Hicks is) criminals whose assets we wouldn't mind getting our hands on in this country, ship them off to Nauru without trial (I hear we have a vacant facility there) and hold them indefinitely, with little or no contact with the outside world, before charging them with retrospective laws under the provisions of a kangaroo court.

We can then give these herded-up "criminals" an option: plead guilty and come home, and we will seize your assests, or continue to rot on Nauru indefinitely. And why not torture them while they make their decision?

If we don't already have laws in place that allow this to happen, fear not. In the case of Hicks's charges, they were applied retrospectively, so we can do the same for our Nauru experiment.

If readers still have little sympathy for people being stripped of natural justice in the circumstances given - the "if you do nothing wrong you have nothing to fear" argument - let's spell out how retrospective laws apply.

You do something entirely within the law, such as negative gear an investment property, but a change to the law makes doing so illegal, not just in future but for anyone who did so previously. That makes you a tax cheat. Doesn't sound very fair, does it?

Hicks cavorting with terrorists in the mountains of Afghanistan was not illegal under any layer of law until it was retrospectively made so. He may have been evil for doing so, certainly more so than investors seeking to make a buck out of the property market, but he wasn't acting illegally until years later when the law was changed.

The Australian Institute of Criminology stipulates two reasons behind why the proceeds of crime act was introduced: "to deprive criminals of the benefits of their financially motivated criminality" and because it "reduces the capital available to perpetrators of future criminal ventures".

If anyone thinks Hicks did what he did in Afghanistan (what exactly that was is hard to know because he has never faced a fair trial) for the financial benefit of one day writing about it, or with a view that the proceeds of his book might be used to fund future involvement in terrorism, they have a healthy imagination.

Literary proceeds orders also are designed to stop convicted criminals glamorising what they did or seeking fame and fortune from it. But you could hardly accuse the reclusive Hicks of doing that, even if his book airbrushed events he would rather forget.

It is easy to rattle off accusations that Hicks was up to no good with terrorist group Lashkar-e-Toiba, fought with the Taliban or that he would have committed a terrorist atrocity had he not been caught. But it's much harder to prove them.

Peter van Onselen is a Winthrop professor at the University of Western Australia.