We’re wasting money trying to further punish David Hicks for the outright travesty of Guantanamo? Seriously?

So, the Commonwealth DPP has actually applied to seize the proceeds of David Hicks’ memoirs under the Proceeds of Crime Act – despite Hicks having never actually been found guilty of a real crime in a fair hearing in a real court – and the NSW Supreme Court has actually frozen them in the meantime.

For what? A “crime” that didn’t exist when he was alleged to have committed it? A profoundly unjust and corrupt process that had none of the protections of a fair trial and in which he was essentially forced to plead guilty to a ridiculous charge because otherwise his matter would never actually be heard?

What Australian court could possibly view what happened at Guantanamo as legitimate, as justifying the application of any further punishment here in Australia?

What a waste of public money. What an act of utter bastardry.

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48 responses to “We’re wasting money trying to further punish David Hicks for the outright travesty of Guantanamo? Seriously?

  1. What I really don’t understand is why Labor is covering for Howard’s mistake. What can they possibly gain by it? It’s punitive, to save the reputations of people who aren’t even in government any more.

  2. Here’s a solution, torrent the book and send Hicks a donation.

  3. jordanrastrick

    What I really don’t understand is why Labor is covering for Howard’s mistake

    I’m also not 100% sure about this.

    Would it be a decision coming from the AG to pursue this case, or would the Commonwealth DPP have some degree of independence in the matter?

    There’s a big political difference between “Minister takes no action to screw Hicks over any further” and “Minister instructs prosecutors to drop brief against Hicks.”

  4. Punishment for exposing uncomfortable truths is nothing new in politics.

  5. narcoticmusing

    Agreed Jordan – btw, long time no see 🙂

  6. A total act of bastardry.
    I really don’t understand the “proceeds of crime” laws anyway. At what point is the threshold to determine whether somerthing is a proceed of crime? Hicks pleaded guilty (under extreme duress as far as I can tell) to dubious charges then writes a book about what led him to that point and his subsequent experiences. How is writing a memoir a direct proceed of his specific “crime”? Is he forever embargoed from receiving any income that is even tangentially related to his life experiences? What if he documented the psychological trauma he received in Guantanano and the difficulties he experienced settling back into life in Australia? Would that cross the threshold and be a “proceed of crime”? Why does the threshold for Hicks appear to be more constrictive than for others, say, Mark “Chopper” Read for example?
    Smells like vindictiveness to me.

  7. Splatterbottom

    Interesting comment of the legal issues here. My issue of Hicks’ book is that it is inconsistent with his earlier admissions of his involvement in the jihadist movement. It is hard to feel sorry for him on this issue, though no doubt pious leftist hearts will bleed.

  8. It is hard to feel sorry for him on this issue, though no doubt pious leftist hearts will bleed.

    **sigh** … here we go …

  9. Yeah, there was a similarly stupid comment from a long-banned troll this morning:

    “Just imagine you endorsing a self-admitted terrorist sympathiser like David Hicks, who would have picked that one? 😆
    I bet you have an autographed copy of his book in pride of place next to your favourite games…”

    Yeah, believing in the rule of law is equivalent to “endorsing” David Hicks’ political views of ten years ago.

    The funny thing is, the buffoons who like the idea of locking Hicks up and making up a crime afterwards to try to punish him and then after imprisoning him without a workable charge for over five years offering him the choice of stay in Guantanamo in limbo for even more years or cop a plea to a bullshit made-up charge afterwards – those people have a lot more in common with the authoritarian Islamic dictatorships than they realise. Those dictatorships don’t believe in the primacy of the rule of law, either.

  10. his earlier admissions of his involvement..
    You mean the ones obtained under torture and applied against retrospective laws, for which they had to invent a whole new court system because Americas current system doesn’t allow a government to actually GUARANTEE a conviction?
    We’re familiar with it.
    Now piss off nimby.

    Why does the threshold for Hicks appear to be more constrictive than for others, say, Mark “Chopper” Read for example?

    They tried doing it with his too – I think it was his first book (or second). I think it might have been the same bloke that prosecuted him in Tassie (Damian Bugg).
    That attempt was derailed by sheer embarrassment.

  11. Splatterbottom

    Lykurgus: “You mean the ones obtained under torture”

    No I mean the ones in his letters to his family when he was training to be a jihad murderer.

  12. It’s sad how many of us are unable to de-couple our views of Hicks as a man from our willingess to fight for his basic human rights.

    Still, I think this prosecution will ultimately be a good thing. Hicks will be formally ruled by the Australian courts to have committed no crime and the rule of law will prevail.

  13. Grrrr! Ate my post (again) FUCK Worddpress!

  14. Splatterbottom

    Mondo, it is quite clear that Hicks did not commit a crime under Australian law. It is also clear that this particular issue is not about his basic human rights, but rather the proper limitations on him cashing in on his notoriety.

    Unsavoury as he may be, if Hicks is talking mainly about his mistreatment at Gitmo then this should not be the type of thing that is subject to the Proceeds of Crimes laws. Also, the legislation goes too far in purporting to apply to things that were not crimes under Australian law at the time they were done.

  15. “Grrrr! Ate my post (again) FUCK Worddpress!”

    If you’re having that problem regularly, maybe copy and paste your post into notepad before pressing post comment?

  16. It is also clear that this particular issue is not about his basic human rights, but rather the proper limitations on him cashing in on his notoriety.

    Au contraire SB, attempts by the State to confiscate the private property of an individual simply because he was a giant pain in their arse is a significant breach of that individual’s basic rights.

    Hicks committed no crime in Australia, and was not legitimately convicted of a crime in the US – and everyone knows it. Those arguing that he should be forced to forfeit his money are basing their position on nothing more than personal disdain for his actions.

  17. I agree that criminals should have the proceeds of their crimes confiscated by the state.

    However, I was not aware that writing a book was a crime, even when that book embarasses the state.
    When exactly did Australia join the ranks of North Korea, China and Israel?

    Cheers

  18. As Mr Hicks finally gets to tell his story in an Australian court and in public without bush or shrub propaganda with full media coverage .
    Maybe this will turn out to be a good outcome.
    In the end he will get the money and we will get to hear the truth about his unjust treatment. This will be a first hand account of his capture and sale to the seppos and being used by howards govt to promote a failed policy.

  19. He should donate all the proceeds to Amnesty International. Be a lot harder for the government to try to stop it then. At least without looking like even bigger shitbags.

  20. baldrickjones

    Write a book? No worries. Profit from it? Get fuggin lost. He plead guilty. Even if he wasn’t guilty, as a lawyer you should know the potential consequences of pleading guilty. Personally, I think he’s lucky that he didn’t get a 7.62 x 39 mm to the head in Afghanistan. But that’s just me and my knowledge about ununiformed combatants under the Geneva Convention.

  21. “maybe copy and paste your post into notepad ”

    Thanks – usually I copy to my clipboard prior to posting, I haven’t been posting much this past week because of work commitments. I grab five minutes at work to make a post here, I forget to copy to my clipboard, it’s frustrating.

    When I do repost (when I remember to copy) I get the duplicate post warning hence me having to alter the post to get it through. The blog is broken and I guess WordPress wont give a toss until a competitor comes along.

  22. “Write a book? No worries. Profit from it? Get fuggin lost.”

    You don’t believe in being paid for work, now? He’s not profiting from anything he did in 2001, he wrote a book and earned some money from the writing of it. You know, like anyone who writes a book.

    “He plead guilty. Even if he wasn’t guilty, as a lawyer you should know the potential consequences of pleading guilty. “

    In a real court where you have the alternative of a fair trial, yes. But of course that’s not what happened. It was a bullshit plea to a bullshit charge to get out of a bullshit process that had already imprisoned him unjustly for over five years. It simply is not a plea that any Australian court should accept as genuine, because it was not obtained through anything like a fair and lawful process. I suppose you think all those people forced to plead guilty by Stalin were “guilty” of their “crimes”, too.

    “Personally, I think he’s lucky that he didn’t get a 7.62 x 39 mm to the head in Afghanistan.”

    The real motive – you don’t like him and regardless of the law you want him dead. Very revealing.

    “But that’s just me and my knowledge about ununiformed combatants under the Geneva Convention.”

    LOL. Yeah, the Geneva Convention was all about creating a class of people for whom the rule of law did not apply – they’re not prisoners of war, and they’re not civilians, they’re magical limbo people we can do what we want with! I think you need to put quotes around the word “knowledge” in your sentence.

    Bobby – I’m sorry you’re having difficulties with WordPress. I’m hoping they iron the problems out soon.

  23. “But that’s just me and my knowledge about ununiformed combatants under the Geneva Convention.”

    The whole Guantanamo incident clearly indicates that we need a new Geneva Convention to cover non-uniformed combatants as well. Until Afghanistan was invaded, the Taliban was the designated government and army of that nation. But they didn’t wear official uniforms or distinguishing marks. So it is perfectly OK to do whatever we like because the other guy is not wearing a uniform? Seriously?

    What if Hicks had been wearing a uniform and the Northern Alliance stripped it from him before selling him to the US? How would anyone know? Very convenient get out of jail free card there, giving the great powers the freedom to slaughter and torture because of the lack of uniforms on their opponents.

    What if we applied the same rules to regular crimes? If a bank robber is not wearing his official uniform of a balaclava, then summary execution is authorised. No trial necessary. Because trials are only provided to those who dress properly.

    The Geneva Conventions stuff about uniforms harks back to a middle ages notion of knights proudly wearing their standards and colors, fighting at a designated place and time. In this day of laser guided bombs and instant pattern recognition via satellite, only an idiot would paint a bullseye on their chest like that. War has changed. So the rules about fair treatment of prisoners must too.

  24. ___This post is not a duplicate___

    “But that’s just me and my knowledge about ununiformed combatants under the Geneva Convention.”

    But only when it’s them hey? You know, those two non-uniformed, armed CIA operatives running around at Mazar-A-Sharif causing total chaos. You only expect the enemy to obey the rules?

    By the way baldrickjones, do you support the Geneva Conventions? Bush and his cabal didn’t, they just tossed them out of the window and made it up as they went along.

  25. I suppose you think all those people forced to plead guilty by Stalin were “guilty” of their “crimes”, too.

    Oooh, the thread has descended to comparisons with Stalin! I call Godwins! Uh … “Godwinski”?

  26. baldrickjones

    “The real motive – you don’t like him and regardless of the law you want him dead. Very revealing.”

    Yeah that’s exactly what I said – word for word apparently. That strawman was set up and knocked down exquisitely! I only articulated that non-uniformed combatants are not covered under the geneva convention and can be executed as spies. That includes non-uniformed CIA officer too you know.

    I don’t support many things that Bush and co did, however Hicks is a convicted criminal and therefore he should not be able to profit from it. Like I said, he got poor legal advice if he wanted to clear his name. You can call the thing “bullshit” as much as you want. It doesn’t change anything.

  27. baldrickjones

    @uniquerhys

    I agree that the Geneva conventions need to be changed – but the point is that they have not been and therefore loopholes concerning uniformed combatants and un-uniformed combatants can be exploited. Moral issues aside, don’t forget that a lot of legal work went into Gitmo to ensure that it wasn’t ILLEGAL under U.S. and international law. I don’t support that, but as lawyers show us time and time again, the law is about the law and not about justice.

  28. I don’t support many things that Bush and co did, however Hicks is a convicted criminal and therefore he should not be able to profit from it.

    Do you undestand the concept of ‘duress’ Baldrick, and the implications it has on the legitimacy of a confession?

    If I beat you until you sign a confession admitting to being a criminal then are you, by definition, a criminal? What if, instead of beating you to make you sign the confession, I just lock you up for five years?

    Are any of these concepts of justice relevant to you?

  29. “Hicks is a convicted criminal “

    Not if you believe the rule of law. Only if you think it’s OK to make up charges after the fact and mete them out in what amounts to a Kangaroo Court that uses ‘testimony’ gained via torture.

  30. “Like I said, he got poor legal advice “

    The advice he got was cop this bullshit charge or rot in Guantanamo Bay torture camp indefinitely , of course, you being better than the rest of us would have opted to rot?????

  31. jordanrastrick

    “Like I said, he got poor legal advice if he wanted to clear his name.”

    Maybe his legal advice was “Pick one: hold out for due process and the possibility of having your name cleared; get out of detention in this life time”.

    “Hicks is a convicted criminal and therefore he should not be able to profit from it.”

    Would you say that Liu Xiaobo should not be able to receive the monetary component of his Nobel Peace Prize? After all, that’s a financial gain as a result of actions for which he has been duly convicted as a criminal by a court.

    @narcotic: Yeah, I’ve been busier lately, new job. Also a bit bored with the going through the same old Abbott vs Gillard vs Brown shouting matches over and over again 🙂 So I’m doing a spell of mainly lurking for the time being.

  32. baldrickjones

    A simple question for Jeremy here – under the law in Australia as it stands right now, is Hicks considered to be a convicted criminal?

    Yes or no?

  33. Fortunately, Baldrick, the Australian courts will now need to rule on that very issue.

    Unfortunately for you I doubt you will like the outcome.

    On another note – does anyone here think this might be a deliberate decision to embarass the former govt? Obviously the DPP knows that this case has no chance of succeeding, so is it possible they’re initiating it to make a point?

  34. ____This is not a duplicate____

    Baldrick, No!

    A simple question for you, do you believe in the rule of law?

    “On another note – does anyone here think this might be a deliberate decision to embarass the former govt?”

    Aaaaah… I hope so.

  35. baldrickjones

    I doubt the DPP would be allowed to initiate a case that has no chance of success, would they not have to look at the legislation and the facts of the case and find that there is some sort of case there?

    I believe in the rule of law totally – that a convicted criminal can’t profit from their crimes.

  36. Splatterbottom

    Mondo, the decision to bring this case is actually a lefty conspiracy to give Hicks publicity to boost his book sales. The government knows it will lose and that Hicks will end up with even more cash.

  37. baldrickjones

    BTW – I seperate my opinion of what Hicks is and did and what happened to him and the process that he went through. He is a scum bag who deserves to live in ignominity and not profit from his notoriety and confessed crime. But he should be allowed to live in peace now that he has served his time. As I said earlier – he could have been executed on the battlefields of Afghanistan without any clause of the geneva convention being violated.

  38. “that a convicted criminal can’t profit from their crimes.”

    So then you believe that Liu Xiaobo should not be able to receive the monetary component of his Nobel Peace Prize? (as per jordan).

  39. It does sound a bit unlikely when you put it that way SB.

    But I can’t get past the obvious here – there would seem to be almost zero chance of any Australian court upholding the legitimacy of Hicks’ conviction in the US.

  40. Splatterbottom

    Mondo, it is not clear to me exactly what the court will be deciding. See the link to Skeptic Lawyer in my initial comment above. She goes through the provisions she thinks will be relied on by the government. Then she says:

    I’m presuming that the CDPP will now seek a literary proceeds order under s 152 of the Proceeds of Crime Act 2002 (Cth). Sub-section (2) provides that applications for proceeds of crimes orders can be made where a person has committed a “foreign indictable offence” (regardless of whether the person has actually been convicted of the offence). ………

    Like all legislation, this is a little circuitous. But the essence of it is this: if Hicks is found to have committed a foreign indictable offence, and at the time when the application is made for a restraining order, the conduct is a crime under Australian law punishable by at least 12 months imprisonment, the court may grant the literary proceeds order pursuant to s 152(2) of the Act. Working out whether or not Hicks committed a foreign indictable offence may well open the whole Guantanamo process to judicial scrutiny in Australian courts. However, it is worth noting that Hicks’ conviction is not determinative of whether he committed a foreign indictable offence.

    It looks like it is irrelevant whether Hicks was convicted provided the conduct would have been an offence under then US law and current Australian law. How is the government going to prove this? Will they have access to US information. If not the court may conclude that there is not sufficient evidence that the conduct was criminal under US law. The US will argue the Australian court did not have all the facts and, in any case, Hicks pleaded guilty.

    It will be interesting to see what standard of proof the Australian court requires. Will the court require proof that the conduct was beyond reasonable doubt criminal, or merely that a reasonable jury or tribunal could have taken that view and convicted Hicks?

  41. narcoticmusing

    there would seem to be almost zero chance of any Australian court upholding the legitimacy of Hicks’ conviction in the US.

    Why not? Australian Courts are influenced by decisions of American courts all the time and vice versa. If everything that is provable was all a-ok by the US courts, why wouldn’t Australian Courts uphold them? This is different to say, the situation with Liu Xiaobo where our courts do not utilise nor pay respect to their law.

  42. “If everything that is provable was all a-ok by the US courts, why wouldn’t Australian Courts uphold them? “

    Well, for one, the GB process wasn’t a real court. It had none of the protections of a real criminal process. Usually the US courts have most of them.

    “He is a scum bag who deserves to live in ignominity and not profit from his notoriety and confessed crime.”

    I reckon he deserves some compensation for the five years he was forced quite unjustly and quite wrongly to serve, actually.

    Anyway, he’s not profiting from his “crime” – he’s profiting from his subsequent work, writing a book.

    “A simple question for Jeremy here – under the law in Australia as it stands right now, is Hicks considered to be a convicted criminal?”

    That question doesn’t really make sense. Under which law in Australia? Considered by whom? In what context?

    Would the GB finding qualify as a “prior” conviction for the purpose of criminal proceedings here? I’d say no, but it’s a fairly unprecedented situation so I doubt anyone can be completely certain what the court would decide. You’d hope they’d treat it like any other show trial result.

  43. narcoticmusing

    I suppose then it will depend on how influential the GB process was in terms of being considered ‘lawful’. There will certainly be a lot of pressure for a finding in the affirmative.

  44. Every time someone writes something about David Hicks I end up spending 3 or 4 hours on youtube wetting myself at his namesake Bill.

    If you’ve never done it I recommend it.

  45. Hey do they have proceeds of crime legislation in Great Britain?

  46. “But he should be allowed to live in peace now that he has served his time.”

    His time? What time? Time metered out by whom? Time served for what offence?

    You’re trying to make his years in Guantanamo sound like some kind of legitimate penalty. They weren’t. They were an unlawful imprisonment with absolutely no grounding in legality. At no point did he see the inside of a courtroom or speak to a judge. He was charged with a crime that didn’t exist when he committed it.

    I agree with you that he certainly has a suspicious history and I think he’s probably a scumbag. That doesn’t mean we can just lock him up without a trial for years – THAT, in fact, is a crime. A definite crime, with nothing like “suspicious” and “probably” and “think.”

    If China did this to an Australian national, we’d be up in arms about it.

  47. narcoticmusing

    For people to suggest Hick’s detention was justified – or ought to be justified – by Australian law, when there was no Australian law broken, do not value freedom as much as they claim.

    It is not for us to determine, based on him being a ‘scumbag’ or otherwise, that we should suddenly make a law in order to punish rather than restrain. There are few greater forms of oppression than a State willing to make up laws retrospectively to oppress another. No citizen is safe if the law is undefinable.

  48. Splatterbottom

    Jules: “Every time someone writes something about David Hicks I end up spending 3 or 4 hours on youtube wetting myself at his namesake Bill.”

    Looks like my favourite Bill Hicks skit, ‘Hooligans’, needs to be updated in the light of recent events.

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