Howard government moved quickly on claims against David Hicks

The Howard government agreed within three months of the capture of alleged terrorist David Hicks that he had been apprehended legally by the United States while looking at ways to prevent him from selling his story.

Cabinet documents released by the National Archives on Sunday reveal the Howard government also moved quickly to allow America to investigate and begin legal processes against Hicks before Australia would consider its own possible legal actions against the Adelaide-born man.

David Hicks leaves Yatala Prison in Adelaide in 2007, after six years in captivity.Credit: Shannon Morris

Hicks, captured in Afghanistan in December 2001, was moved with other alleged terrorist fighters to America’s Guantánamo Bay naval base in Cuba.

While accused of having trained with al-Qaeda and to have met terrorist leader Osama bin Laden, he alleged he was subjected to torture during his incarceration at Guantánamo.

The cabinet papers show a verbal briefing was made by then-attorney-general Daryl Williams in February 2002.

At that meeting, the cabinet agreed the government “regards the detention of Mr Hicks by the United States as lawful”. It also agreed that Australia was willing to let the US investigate Hicks before Australia would look at its own possible legal actions.

Cabinet was aware of allegations Hicks had been in Kosovo and Kashmir, deciding to approach the International Tribunal for the former Yugoslavia to determine if it had information about the man.

Just three months after his capture, cabinet also decided to look at possible laws to prevent Hicks ever selling his story for profit. Federal profits of crime laws were changed in 2004 to include convictions under US military commissions.

In his autobiography, John Howard described the issues around Hicks and particularly the length of time it ultimately took for the US to bring him to trial as a “barnacle”.

“Most Australians suspected that Hicks was at least guilty of the things to which he ultimately pleaded guilty. They had little sympathy for him, but he should have his day in court,” Howard wrote.

Howard noted the delay in prosecuting Hicks aided his supporters making him “some kind of martyr”.

Hicks ultimately consented to a plea bargain in 2007 under a US military commission and returned to Australia to serve out his sentence. The conviction was overturned as part of a US review of the military commission process in 2015.

He would also write his own autobiography. Federal legal action to prevent him from profiting from his book was ultimately abandoned.

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