Hicks has spent five years, mainly in solitary confinement, at the Guantanamo Bay prison camp, which the US set up on illegally occupied Cuban territory to ensure independence from the legal system of any country, including the US itself.
"This is a new offence, created in 2006. To secure conviction the prosecution must not only bend the rules but make up crimes", Major Michael Mori, Hicks's US military defence lawyer, told a public meeting in Melbourne on March 1.
The military commission system was set up by US President George Bush after the September 11, 2001, terrorist attacks on the US, but were declared illegal by the US Supreme Court last June. Congress then approved new legislation at Bush's request to reinstate the system.
Mori explained to the meeting, which was organised by the city council's Melbourne Conversations project and attended by 1500 people, that to make the military commissions more politically acceptable within the US, Bush had exempted US citizens from having to face them.
Mori, along with other supporters of Hicks, has continually pointed out that if the Australian government wanted Hicks released, he would be.
When other Western governments have asked for their citizens to be released from Guantanamo Bay, Washington has obliged.
Australian government ministers such as Prime Minister John Howard, Attorney-General Philip Ruddock and foreign minister Alexander Downer have insisted that Hicks will receive a fair trial before the military commission. This is despite the same ministers prejudicing the possibility of a fair trial by competing with their US counterparts in their declarations that Hicks is a "terrorist" and "war criminal".
According to their statements, Hicks returned to Afghanistan after the 9/11 attacks to take part in resistance by Afghanistan's Taliban government to the US-led invasion of the country. These allegations were the basis of the charge of attempted murder that was put before the military prosecuting authority but has since been dropped for admitted lack of evidence.
Hicks says he returned to Afghanistan to collect his possessions, including his passport, so that he could go home to Australia.
Mori has continually pointed out that the attempted murder charge related to a hypothetical situation with hypothetical victims and that the prosecution acknowledged that Hicks never fired a shot at anyone. "If it's a crime to shoot at someone in a war (which it isn't, I looked for that one) then at least charge someone who actually shot at someone", he told the Melbourne meeting.
The remaining charge of intentionally providing "material support or resources to an international terrorist organisation engaged in hostilities against the United States, namely al Qaeda", is based solely on allegations that in early 2001 Hicks travelled to Afghanistan and stayed in an "al Qaeda guest house", that he then attended an eight-week weapons training course run by al Qaeda and met once with al Qaeda leader Osama bin Laden.
None of these activities, at time they are alleged to have occurred, were illegal under either Australian or US law for non-US citizens.
The charge sheet also includes the scouting and guard duties Hicks performed as a member of the Taliban government forces as supposed evidence of his providing material support to al Qaeda. But, again, these activities were not illegal at that time under either Australian or US law.
The US constitution explicitly prohibits Congress from approving any "ex post facto", i.e., retroactive, law.
Furthermore, many of the specific allegations being made by the prosecution against Hicks are based on confessions he made, or statements made by other prisoners, under torture, which would make them inadmissible in either a US civil court or a court martial.
At the same time as the charge sheet was served on Hicks, British lawyer Stephen Grosz was submitting a document to a British court outlining the abuse that Hicks has suffered while in the US military's custody.
According to this document, Hicks, who now has dual Australian and British citizenship, was subjected to beatings, solitary confinement, sensory deprivation, sexual abuse, sleep deprivation, injection with unidentified psychotropic drugs, being hooded and manacled, and being taunted and threatened while witnessing worse torture being inflicted on other prisoners.
Grosz's document alleges that Hicks was shown pictures of fellow Australian detainee Mamdouh Habib being tortured in Egypt. Hicks was threatened with "extraordinary rendition" to Egypt if he did not cooperate with his inquisitors.
During his rendition to Egypt, Habib was interrogated by both US and Australian, as well as Egyptian, secret police and the torture included electric shocks, simulated drowning and attacks by dogs. The US military eventually admitted that they had insufficient evidence to try Habib, even under the rigged military commissions system, and released him.
Since his return, Habib has been harassed by the authorities and vilified by the corporate media. He is currently standing as an independent candidate in the March 24 NSW elections on a platform of defence of civil liberties.
While most Western governments have secretly collaborated in the secret system of CIA- and US military-run prisons and prisoner transport flights, the European Union countries have held official inquiries into the rendition operations on their own soil and brought their citizens out of Guantanamo Bay.
The Australian government's refusal to defend Hicks's civil liberties is partly a statement of support for Washington's global extrajudicial secret police system, a public demonstration by the Howard government that it is Washington's "loyalist ally" in its war of terror on the Third World.
Hicks is also victim of the Howard government's consistent agenda of using Islamophobia to justify the introduction of draconian "anti-terrorism" laws that can be used to suppress peaceful political dissent.
The growing public support for David Hicks's immediate release is part of a wider disquiet about the Howard government's attacks on human rights domestically and abroad.