RIGHTS-AUSTRALIA: Controls Over Ex-Taliban David Hicks ‘Excessive’

By Stephen de Tarczynski Reprint | | Print |

Stephen de Tarczynski

MELBOURNE, Jan 3 2008 (IPS) - As David Hicks, former ‘Australian Taliban’ and Guantánamo Bay inmate after his capture in Afghanistan in 2001, savours his freedom restrictions imposed on him continue to be excessive say lawyers and human rights activists.

Hicks’ freedom has been curtailed by a control order, imposed on him by a magistrate following an application by the Australian Federal Police (AFP).

“Control orders at the very least severely restrict a person’s liberty and at worst can amount to house arrest,” said Amnesty International Australia’s Campaign Coordinator, Katie Wood, in a statement following the decision by federal magistrate Warren Donald on Dec. 21.

Under the conditions of the interim 12-month control order, Hicks is required to report to police thrice a week and abide by a midnight to 6 am curfew. He is not allowed to leave Australia, must live at an address approved by the AFP, is restricted to using an AFP-approved mobile phone and SIM card, must not use a payphone or satellite phone and must not communicate with known terrorists.

Any breach of these conditions could result in Hicks being jailed for up to five years, although he appears to be willing to abide by the rules imposed upon him at this stage. Hicks’ lawyers did not oppose the control order, but did seek a reduction in the number of times their client must report to police, albeit unsuccessfully.

In a statement read by his lawyer, David McLeod, following his release from prison on Saturday, Hicks thanked his family and friends, his lawyers, civil society organisations and politicians who fought for his release.

But “first and foremost, I would like to recognise the huge debt of gratitude that I owe the Australian public for getting me home,” said Hicks. “I will not let you down.”

Now 32 years old, Hicks was captured by the Northern Alliance in Afghanistan in 2001 and sold to U.S. forces. He was held at the notorious Guantánamo Bay detention facility for more than five years. Originally from Adelaide, Hicks was found guilty in March this year of providing material support to terrorism by a United States military commission set up to try terrorism suspects.

Despite being sentenced to the maximum seven years – in addition to the five years he had already spent in custody – a pre-trial agreement suspended all but nine months of Hicks’ sentence. He was transferred from Guantánamo to Adelaide in May to complete his sentence.

Amnesty International Australia argues that control orders – which were introduced under controversial anti-terror legislation in 2005 – “violate human rights, including the right to a fair trial, the right to liberty, the right to freedom from arbitrary detention, the right to freedom of movement and association, and the right to be presumed innocent”.

“Control orders, although issued by a judge, do not have the fair trial guarantees required in criminal cases,” said Katie Wood.

Hicks is just the second person in Australia to be placed under a control order. In 2006, Melbourne man, Jack Thomas – who is set to face a retrial on terror-related charges – was issued with a similar control order, restricting his freedom of movement and association.

The Australian Democrats – a minor party that experienced poor results in November’s election but whose spokesperson, Senator Natasha Stott Despoja, was personally thanked by Hicks in his post-release statement – slammed the imposition of control orders.

“The control order regime is an unnecessary affront to our democratic rights and the courts can do little to prevent the perpetuation of injustice when the regime itself is flawed,” said Stott Despoja in a statement.

The Democrats’ Senator also took aim at the AFP – saying the police took advantage of a “free hit” against Hicks to make up for “a series of humiliating failures in anti-terrorism prosecutions” – and the government.

“Much of the blame lies with the Rudd Government, led by the Attorney-General, who could have prevented all of this by withholding his consent to the AFP’s misguided application for a control order,” said Despoja.

Eva Scheerlinck, chief executive officer of the Australian Lawyers’ Alliance – which seeks to protect and promote justice, freedom and the rights of individuals – told IPS that Hicks’ control order conditions will be relatively easy for him to deal with considering what he has dealt with in the past.

“I think, irrespective of whether a control order is warranted in his case, he’s survived incarceration at Guantánamo Bay in the most inhumane of circumstances, so I think we can say he’s probably survived worse things,” she says.

“But I also think he’s paid a pretty high price for his freedom even though he was never charged with actually hurting anyone or threatening to hurt anyone, and I think it’s a shame that he can’t just be left alone to get on with putting his life back together now,” says Scheerlinck.

The Lawyers’ Alliance chief is sceptical that Hicks is a threat to Australia. She argues that the justice system is sufficiently capable to deal with threats without the need to resort to control orders, which she describes as “almost like a home detention…or some sort of parole conditions.”

“If there’s enough evidence to charge them, (then) charge them. I don’t think people should have their privacy invaded in such a way,” says Scheerlinck.

“I believe in our legal system where someone is innocent until proven guilty…I mean, don’t our police already have sufficient powers to keep people under surveillance?” she asks rhetorically.

But the control order is not the only imposition on Hicks’ new-found “freedom”. As part of his pre-trial agreement with prosecutors at the military commission hearing at Guantánamo Bay, Hicks agreed, among other conditions, not to communicate with the media for a period of one year regarding his “capture and detention as an unlawful enemy combatant.”

Upon his release, Hicks said through his lawyer that he intended “to honour this agreement as I don’t want to do anything that might result in my return there (to Guantánamo)’’.