The Commonwealth Director of Public Prosecutions has given his clearest indication yet that an estimated $250,000 in profits from David Hicks’ autobiography, Guantanamo: A Journey, will be confiscated under the Proceeds of Crime Act.
The appearance of CDPP Director Christopher Craigie SC, before Senate Estimates last week was a dead tell for how the case, run in cooperation with the Australian Federal Police, will likely end up.
Shadow Attorney-General Senator George Brandis put the screws to Craigie in a lengthy session, asking him whether CDPP advice had been provided to the AFP since a joint meeting to discuss the issue was held on 13 October 2010. Brandis had previously raised the question at earlier Senate Estimates in February.
Craigie showed tenacity in resisting Brandis’ attempts to get specifics on the operation, noting that there were "inherent complexities". "I don’t think it’s appropriate that I walk you into the unique aspects of this," Craigie said.
Brandis continued to press the question, and Craigie cautiously admitted that "a range of advices" had been presented to the AFP.
Brandis then asked whether the advice contained what members of the legal profession would call "counsel’s advice on prospects" — the chances of a favourable outcome. Craigie retorted, saying it would be inappropriate of him to comment.
Eventually, after further wrangling between the two, Craigie ominously concluded, "With respect — watch this spot."
"I’m happy with that Mr Craigie," Brandis said, grinning.
On Monday the Attorney-General, Robert McClelland, told Sky News "I wouldn’t think it would be too long before a decision would be made in that area," and unless Christopher Craigie SC has the wryest sense of humour on the planet, we shouldn’t expect things to turn out well for Hicks.
Guantamo: My Journey details Hicks’ time at Gitmo, and recounts instances where inmates were beaten and put in "stress positions". It describes the squalid and cramped conditions of Camp X-Ray, and in one example, Hicks describes how Military Police assaulted one prisoner they alleged had scrawled "Osama will save us" on the floor of his cell:
"The first one held a full-length shield. He entered the cage first, slamming the detainee, pinning him to the cement floor with the shield, while the others beat him in the torso and face. The last to enter the cage was a dog handler with a large German shepherd. The dog was encouraged to bark and growl only centimetres from the Afghan’s face while he was being beaten. In later cases, the dogs bit detainees."
The book also explains that Hicks was in Baghlan, where he was picked up by Northern Alliance fighters, as a result of a missed taxi ride on the way to Kabul. Unable to speak Farsi and cut off by the Northern Alliance attacks post-9/11, he claims to have lost his way while heading to Pakistan to assist the Kashmiri independence movement.
After being turned over to US forces in 2004, charges were filed against him for acting as an enemy combatant. In 2007 he pleaded guilty to altered charges of providing material support to terrorism after the system of United States military commission under which he was initially tried was found to be unconstitutional. He was transferred to Australia and released on a control order later in 2007, which expired in 2008.
The account given in Hicks’ biography buttresses the claim of innocence maintained by his family and lawyers throughout the last 10 years. In particular, the accounts of torture support the case that his plea of guilty was submitted to secure his release from Guantanamo Bay.
Support for the former Gitmo inmate certainly hasn’t waned, and if anything has redoubled since the publication of Guantanamo. He was given a hero’s welcome and standing ovation at the Sydney Writers’ Festival this month.
Senator Brandis has maintained Hicks is a "self-confessed terrorist" and describes the book as "noxious". Brandis accuses Robert McClelland of interfering in the DPP’s case, having lost heart on the issue for fear of pushing any Labor voters remaining in the Writers’ Festival set further left to the Greens.
The Proceeds of Crime Act, which lists as one of its purposes under section 5(b) "to deprive persons of literary proceeds derived from the commercial exploitation of their notoriety from having committed offences", would be used to force Hicks to forfeit any earnings to the Commonwealth. The issue under contention is whether Hicks’ guilty plea still amounts to a "conviction" following the repeal of provisions in the Act specifically inserted by former attorney-general Phillip Ruddock for the recognition of US military commission convictions.
That question seems on the verge of being resolved — and I’m hedging that in the future David Hicks will have to give his Writers’ Festival addresses pro bono.
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