David Hicks - New Charges

New Charges

On 3 February 2007 the U.S. military commission announced that it had prepared new charges against David Hicks. The drafted charges were "attempted murder" and "providing material support for terrorism", under the Military Commissions Act of 2006. Each offence carries a maximum penalty of life imprisonment. The prosecutors said they would argue for a jail term of 20 years, with an absolute minimum of 15 years to be served.

However the sentence, which was not required to take into account time already served, was ultimately up to a jury of US military officers. The Convening Authority assessed whether there was enough evidence for charges to be laid and Hicks tried. The charge of providing material support for terrorism was based on retrospectively applying the law passed in 2006.

On 16 February 2007 a 9-page charge sheet detailing the new charges was officially released by the U.S. Defense Dept.

The charge sheets alleged that:

• Around August 2001 Hicks conducted surveillance on the American and British embassies in Kabul.
• Using the name Abu Muslim Austraili he attended al-Qaeda training camps.
• Around April 2001 Hicks returned to al Farouq and trained "in al-Qa'ida's guerilla warfare and mountain tactics training course". The course included "marksmanship; small team tactics; ambush; camouflage; rendezvous techniques; and techniques to pass intelligence to al-Qa'ida operatives".
• While at the al Farouq camp, al-Qa'ida leader Osama bin Laden visited the camp on several occasions and "during one visit Hicks expressed to bin Laden his concern over the lack of English al-Qa'ida training material".
• On or about 12 September 2001 he left Pakistan after watching TV footage of the 11 September terrorist attacks to return to Afghanistan "and, again joined with al-Qa'ida".
• On his return to Afghanistan Hicks was issued an AK-47 automatic rifle and armed himself with 300 rounds of ammunition and 3 grenades to use in fighting the United States, Northern Alliance and other coalition forces.
• On or about 9 November 2001 Hicks spent about two hours on the front line at Konduz "before it collapsed and he was forced to flee".
• Around December 2001, Northern Alliance forces captured Hicks in Baghlan, Afghanistan.

On 1 March 2007, David Hicks was formally charged with material support for terrorism, and referred to trial by the special military commission. The second charge of attempted murder was dismissed by Judge Susan Crawford, who concluded there was "no probable cause" to justify the charge.

In March 2007, the prospect of further delay loomed when Mori was allegedly threatened with court martial for using contemptuous language toward the US executive, a US military discipline offence, by the Chief U.S. military prosecutor, Colonel Morris Davis, but no charges were filed against Mori.

Leaders and legal commentators in both countries criticised the prosecution as the application of ex post facto law and deemed the 5-year process to be a violation of Hicks's basic rights. The United States countered that the charges relating to Hicks were not retrospective but that the Military Commissions Act had codified offences that had been traditionally tried by military commissions and did not establish any new crimes.

Hick's defence lawyer and many international judiciary members claimed that it would have been impossible for a conviction to be found against Hicks. In her book on Hicks, journalist, Leigh Sales, examines more than five years of reporting and dozens of interviews with insiders and looks at the intricacies of Hicks's case, from his capture in Afghanistan, to life in Guantanamo Bay, to the behind-the-scene establishment and workings of the military commissions.

The Indian government launched an investigation into the attacks by Hicks on their armed forces in Kashmir, during 2000.