Full name: David Hicks
Nationality: Australian
Age: 29
Family status: Single with two children aged 10 and 11
Occupation: Horse trainer/Jackaroo
Background
David Hicks, a former horse trainer/jackaroo from Adelaide, south Australia,
converted to Islam after training with the Kosovo Liberation Army in Kosovo.
According to his father, after David Hicks returned to Australia he decided
to go abroad to further his Islamic studies and to learn ancient Arabic. He
travelled to Pakistan to study in a madrassa, an Islamic school.
Following the 9/11 attacks in the USA, he telephoned his father from
Kandahar, Afghanistan, to tell him that he was going help the Taliban defend
Kabul from the Northern Alliance. He was captured on 9 December 2001 near
Kunduz in Afghanistan by the Northern Alliance.
"Thank you to everyone who has sacrificed time and effort in supporting me.
I can’t thank you enough… Hope to see you back in Australia" David Hicks in
a letter to supporters in Australia.
The Northern Alliance allegedly subjected David Hicks to ill-treatment
before handing him to the US authorities. After he was interrogated by US
and Australian officials aboard the USS Peleliu, he was transported to
Guantánamo Bay in January 2002.
David Hicks is currently the only Australian national detained at Guantánamo
Bay, after the release of Mamdouh Habib in January 2005.
Allegations of torture
In 2002 David Hicks submitted a report to the International Committee of the
Red Cross (ICRC) outlining abuses by US officials that he suffered in
Guantánamo. Although restricted in the details he was allowed to give,
Stephen Kenny, David Hicks’ former Australian legal consultant said that
this report referred to "specific incidences that I believe were not just
the actions of individual guards, but rather a well known activity that must
have been authorized by some reasonably high-up people in the chain of
command of the US forces."
"I have been beaten before, after and during investigations. I have been
menaced and threatened, directly and indirectly, with firearms and other
weapons before and during investigations."
David Hicks.
In August 2004 David Hicks gave a sworn affidavit to his military lawyer,
Major Michael Mori. Declassified in December, the affidavit makes disturbing
allegations about David Hicks’ treatment and the treatment of other
detainees in US custody. It lists a number of techniques allegedly used by
US interrogators that amount to torture or other cruel, inhuman and
degrading treatment.
David Hicks alleges that he:
- Was repeatedly beaten, once for eight hours, including while restrained and
blindfolded;
- Was forced to take unknown medication;
- Was subjected to sleep deprivation "as a matter of policy";
- Was not allowed to leave his cell in Camp Echo to exercise in the sunlight
between July 2003 and March 2004.
The US Department of Defense says it is investigating the allegations of
beatings. However, the official who announced the investigation sought to
discredit David Hicks’ claims by stating that they "seem[ed] to fit the
standard operating procedure in Al Qaeda training manuals". David Hicks’
allegations echo claims that have come not only from detainees, but also
from non-detainee sources, including FBI agents who have said they witnessed
abuses in Guantánamo.
David Hicks also alleges that he witnessed the activities of the Immediate
Response Force, which he described as a squad of soldiers who enter the
cells of "uncooperative" detainees in order to "brutalize" them, often using
attack dogs. According to the affidavit, David Hicks witnessed members of
the squad entering cells because detainees were praying or had refused
medication, and that the detainees were seriously injured. He says religious
detainees have been stripped naked and dragged around their cells, and have
been forced to view pornographic materials in order to break their will.
Family
David Hicks has been held incommunicado for long periods. Letters to his
family have reportedly been restricted, and he could not speak to his lawyer
until 12 December 2003, almost two years after he arrived at Guantánamo Bay.
During this time he was transferred from Camp Delta to Camp Echo where,
according to his father, he was "completely isolated. The cells are painted
white and they don’t see anyone".
On 29 June 2004 David Hicks was allowed for only the second time to talk to
his family on the telephone. He briefly met his father, for the first time
in five years, in August 2004.
"We had a few letters and there have been some messages via Major Mori
[David Hicks’ US Army appointed lawyer], but that’s it."
Terry Hicks, David
Hicks’ father.
Legal developments
David Hicks was one of the first Guantánamo detainees to be charged in
preparation for trial by military commission. He faces charges of
conspiracy to commit war crimes", "attempted murder by an underprivileged
belligerent" and "aiding the enemy".
In August 2004 David Hicks was brought before a military commission panel
for a pre-trial hearing. After being read the charges, he said to the
presiding officer: "Sir, on all charges, I plead not guilty". His trial was
set for 10 January 2005. However, the tribunals were suspended following the
November 2004 ruling in a US federal court in Hamdan v Rumsfeld that the
detainee in that case should have been presumed to have been a prisoner of
war until a competent tribunal determined otherwise, as required by Article
5 of the Third Geneva Convention.
As a prisoner of war, a detainee could only be tried in the same manner as
US soldiers, ie he should face a court martial. The judge also ruled that
even if the detainee was not a prisoner of war, the military commission
procedures were unconstitutional, particularly the fact that the defendant
could be excluded from certain proceedings. The US government has appealed
this ruling. Military commission proceedings have been suspended pending the
outcome of this appeal.
After a June 2004 Supreme Court ruling that detainees have the right to
petition for habeas corpus in US courts (Rasul v Bush), lawyers representing
David Hicks filed a petition with the US District Court in Washington DC.
The petition challenged his long detention, the absence of charges, and
numerous aspects of his detention, including the allegations that he had
been tortured.
The first judge on the DC District Court to interpret the Rasul decision,
Judge Richard Leon, ruled in favour of the executive authority of the US
President during war time, holding that the Guantánamo detainees had no
right to challenge the lawfulness of their detention. Two weeks later, Judge
Joyce Hens Green gave a contrasting opinion. She rejected the government’s
argument that the detainees have no substantive rights, concluding that they
must have more than just the procedural right "to file papers in the Clerk’s
Office".
Specifically, she held that the detainees had the US constitutional right
not to be deprived of liberty without due process of law. The government is
seeking to have a higher court, the US Court of Appeals for the District of
Columbia Circuit, resolve the conflict between Judge Leon’s and Judge
Green’s opinions in its favour. Meanwhile, the legal limbo of the detainees
continues, with no detainee having yet had the lawfulness of his detention
judicially reviewed.
Whatever the outcome of the appeal currently before the Court of Appeals,
the case is likely to be appealed to the US Supreme Court. This would likely
be the case in the Hamdan v Rumsfeld case as well what-ever the outcome of
the current appeal that is pending.
Australian and US authorities
On 25 November 2003 the US and Australian governments separately issued news
releases announcing that any trials by military commission of Australian
detainees would be fair. The Australian Minister for Foreign Affairs and
Attorney General said that their government had "reached an understanding
with the US concerning procedures which would apply to possible military
commission trials of the two Australian nationals…" This included an
agreement not to seek the death penalty against them. Even though the
tribunals would not meet internationally recognized standards for fair trial
and are beset by fundamental flaws, the Australian government was satisfied
with the military commission system, and welcomed the fact that David Hicks
was to be tried by one.
As the subsequent legal stalemate has continued, the Australian government has become more vocal in expressing its concern about the continued detention of David Hicks. Unnamed government sources have expressed concern about the lack of evidence against David Hicks and that he remains held without any judicial review. One official reportedly said: "We are very frustrated. The process is taking much longer than people might reasonably have expected. We don’t want this guy [David Hicks] in limbo forever".
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