David Hicks has now spent almost four years in Guantanamo Bay, the US prison in Cuba. Along with the rest of the prisoners, he has been classed as an "enemy combatant" - legal mumbo jumbo that strips him of any prisoner-of-war rights he'd be entitled to under the Geneva Conventions. He is also one of a handful of Guantanamo detainees selected to be "tried" before controversial "military commissions", which allow for secret evidence and no federal appeals.
David is appealing to be tried by a proper court or be released, but the Australian government is insisting that he be tried by a US military commission. This is despite serious misgivings among legal experts and even some US military prosecutors.
Last year, two US military prosecutors declared the process a "fraud" that is "rigged" to ensure convictions. The number of high-profile critics of the military commissions is growing, now including the American Bar Association, the British attorney-general Lord Goldmsith, the head of Australia's Military Bar, QC Captain Paul Willee, Justice John Dowd of the International Commission of Jurists and Lex Lasry, the Australia Law Council's attorney at Guantanamo Bay.
David's father, Terry, is pleased about this. He says that justice will only be served by bringing David home to be tried. Nothing less will be fair.
"Most of the actual charges against David come under the conspiracy act, which covers a million and one things including attempted murder", he told Green Left Weekly on August 18. "But the US officials have already said he hadn't done these things. David was then accused of translating terrorist books into English ... he is being accused of thought crimes."
David was picked up in 2001 by the Northern Alliance in Afghanistan and handed over to the US military. He was selected for trial before a military commission along with three others, including 35-year-old Salim Ahmed Hamdan, also known as Saqr al Jaddawi, a Yemeni national who is accused by the Pentagon of being a bodyguard and personal driver for Osama bin Laden between February 1996 and November 24, 2001. Hamdan was one of the first prisoners designated to stand trial before a military commission.
Hicks's military commission trial was suspended because of an appeal by Hamdan against the use of military commissions. US district court judge James Robertson's ruling, in November 2004, forced the US government to put all cases before its military commissions on hold.
But on July 15, the US Court of Appeals for the district of Columbia circuit ruled in favour of the Bush administration on the use of military commissions to try prisoners at Guantanamo Bay. It allowed for prisoners captured in the so-called "war on terrorism" to have none of the legal protections in the Geneva Conventions. Hamden's attorneys plan to appeal the decision to the Supreme Court.
Now that the military commissions have been ruled "legal", David's lawyers are appealing to the Federal Court. The commissions are to be presided over by a panel of three hand-picked prosecutors, and a finding of guilt can be by a two-thirds vote. They do not allow a prisoner any recourse to any US, foreign or international court, and leave the final decision on the sentence or conviction with the US president or the US secretary of defence, Donald Rumsfeld.
Hicks' legal team wants David to be tried in Australia. ALP leader Kim Beazley has said that a US court martial or a US court would be acceptable. According to Terry, while a court martial involves judges and juries, it would still be a problem because David is not considered a prisoner of war.
"If they decided he was, he'd have the full rights under the Geneva Conventions: the right to call witnesses, the right of appeal and the right to view all the evidence against him. In a military commission, no enemy combatant has these rights and the prosecution can bring evidence, hearsay and statements taken by coercion", Terry explained.
Terry praised US military prosecutors Major Robert Preston and Captain John Carr, who spoke out against the military commissions last year and whose email messages were leaked to the ABC in early August. "They were hand-picked. They were told that they had to find the prisoners guilty, but they had a heart and they got out."
In email messages obtained by the ABC, Preston and Carr criticised the US government's insistence on "pressing ahead with cases that would be marginal, even if properly prepared, to be a severe threat of the military justice system, and even a fraud on the American people". The ABC's August 1 7.30 Report quoted Carr as writing: "I expected that there would be at least a minimal effort to establish a fair process and diligently prepare cases against significant accused. Instead, I find a half-hearted and disorganised effort to prosecute a fairly low-level accused in a process that appears to be rigged." Preston admitted, "I lie awake worrying about this every night".
Terry confirmed that his son is in a bad way. David's lawyer, David McCloud, confirmed that David's eyesight is poor and his back is wrecked from not being able to stand up or exercise for long periods of time. "He spends 23 hours out of 24 in solitary confinement. Before he had 18 months, 24 hours every day, in solitary, and that's where he developed eye problems and got depressed."
"He also finds it hard when others around him leave and he stays", Terry said, referring to the fact that Spain, Britain, France and Germany have pulled their nationals out of Guantanamo Bay. The British government secured the release of four of its nationals in March 2004, and the remaining four in January. None were charged, despite the US military claiming that four were involved in military activities in Afghanistan.
Even the one US prisoner in Guantanamo Bay, 23-year-old John Walker Lindh, was taken to the US to face court. Lindh is accused of supporting the Taliban and has been charged with conspiracy to murder US nationals, providing support and services to foreign terrorist organisations, and using firearms and destructive devices during crimes of violence.
Howard has been talking about the need to "speed up" the Hick's case and blames David's defence team for "holding up the process". Terry said that David's team are preparing a case for the Federal Court, which could take at least four months given how non-collaborative the prosecution is.
Terry Hicks has devoted the last few years to campaigning for his son's release, but he is also concerned about the more than 70,000 people currently detained in Iraqi and Afghan prison camps. "Not only am I fighting for justice for my son, I hope I'm doing the others a service as well."