1. Posted October 30, 2010 at 9:46 pm | Permalink

    The whole sorry saga seems to be one of turning blind eyes to legal technicalities for political convenience together with masterful inaction. Why would that change now?

    For all his faults and errors, being used as a political football for so many years is a hell of a punishment.

  2. Posted October 30, 2010 at 9:49 pm | Permalink

    The mistake was made at the time of arrest/capture.
    If rule .303 had been properly enforced at that time, there would be no dilemma now about section 337A.

  3. Posted October 30, 2010 at 10:26 pm | Permalink

    There were solid legal grounds on which to hold Hicks, he should have been declared a POW and it would have been legal to hold him prisoner up to today and until the end of the war.

    The US’ failure to treat detainees as POWs seems rather silly to me; was any information gained so much more important than the damage done to the US’ causes in Afghanistan and Iraq?

  4. Posted October 30, 2010 at 11:09 pm | Permalink

    [email protected] I blame the Nazis.

    No, seriously. Once upon a time, things were relatively simple. If you fought in a uniform, you were a soldier and covered by the rules of war. If you did not wear a uniform but engaged in acts of war, you were subject to summary execution, since you were attacking the basis of public order itself (not merely engaging in criminal acts) but not availing yourself of the protections that came from being a soldier. (Part of the purpose being to encourage use of uniforms.)

    Then the Nazis brought the worst form of imperialism to European soil, partisans were heroes and the “wear a uniform” line lost a lot of its moral power.

    The problem with organisations such as al-Qaeda is that they obey no laws of war, engage in acts of war and have no standing as states. To say it is merely a criminal matter is fine for domestic terrorism (in states with high levels of public order and the capacity to enforce same), but has problems for international terrorism (which has all sorts of jurisdictional issues, including jurisdictions with limited capacity to enforce public order). To say their ideological killers are like soldiers both elevates al-Qaeda et al to the status of states and provides legal protections to folk who accept no limits on their own actions.

    There are also people suspected of engaging in acts of war but not actually caught specifically doing them.

    It’s a genuine dilemma. With some awkward trade-offs. The Obama Administration was committed to closing Gitmo. It has also greatly increased drone attacks. These two things are related. If you do not have a satisfactory way of detaining actual or suspected ideological killers, it is a lot easier to simply kill them at a distance.

    Posted October 31, 2010 at 3:59 am | Permalink

    Interesting post, LE.

    As for the reactionary tripe offered in defence of this miscarriage, all I can say is ROFL.
    If they want war criminal murderers to cough up, let them start with the likes of Blair and Howard.

  6. Patrick
    Posted October 31, 2010 at 6:24 am | Permalink

    They could, PW, but using the language the rest of us use, war criminal is a (somewhat loosely) defined term, and neither Howard nor Blair nor, to your shock, Bush seem to fit the description. Murderer as well, believe it or not.

    So it would seem a bit odd to pursue getting war criminal murderers to cough up, starting with two people who are neither.

  7. Posted October 31, 2010 at 8:32 am | Permalink

    [email protected] Great comment. But I really liked:

    My impression of him is of a weak, sad little man who joined up with a band of bullies to give himself a feeling of power over others. I’ve no particular interest in reading about him.

    It is worth asking questions about the treatment of prisoners of the Taliban, al-Qaeda etc. Except of course, they execute theirs or hold them to ransom.

    [email protected] The “war criminal” line is a very tiresome one. It more or less shouts “I don’t want to engage in any hard thinking”. I really cannot get morally outraged over overthrowing tyrannical regimes and replacing them by at least some attempts at democratic ones.

    In Iraq, for example, Kurdistan has been a great success. (And if the British had listened to Lawrence of Arabia–or, indeed, their original governor–and not put the Kurds, Shias and Sunnis in the same state to reward a Hashemite princeling, much future misery might have been avoided.)

  8. Posted October 31, 2010 at 8:37 am | Permalink

    [email protected] More good points. Perhaps it would have been better not to get quite so hung up on the jihadis not making any differentiation between soldier and murderer. Though I do understand wanting to avoid the circus that US criminal trials can turn into. I am not sure Miranda rights, for example, quite work on the battlefield.

  9. Patrick
    Posted October 31, 2010 at 8:45 am | Permalink

    Even in the US, Lorenzo, Miranda rights don’t apply to a war. The $64m dollar question is what is war and who is a combatant, these days. The best discussion about it occurs on opiniojuris.org – I especially recommend for a view I generally concur with, Kenneth Anderson, but all the others are pretty good too. One of them, Kevin Jon Heller, is a colleague of LE’s.

  10. Peter Patton
    Posted October 31, 2010 at 10:55 am | Permalink


    I would suggest that here we have a salutary caution against thinking that law and politics are mutually exclusive.

    On this issue I would advise the government to let sleeper cell mates lie.

  11. Peter Patton
    Posted October 31, 2010 at 11:03 am | Permalink


    The whole uniform thing is quite rational. Basically, the laws of war/international law evolved as agreements between sovereigns. A soldier wearing a uniform was doing the bidding of a sovereign, and thus other sovereign parties to international law would accord said uniformed soldier protections.

    Neither AQ nor the Taliban was a sovereign party to the Geneva Conventions, nor indeed any instruments of international law. Of course, while technically, this places the ‘soldiers’ of AQ/Taliban outside legal protections, the US still had the choice to accord them protections. I have always argued that the US erred in not making that choice. Not erred in law, but in diplomacy, which is much, much worse. 😉

  12. Peter Patton
    Posted October 31, 2010 at 11:09 am | Permalink


    “War criminal” is beyond tiresome. It is yet another in the long line of muddle-headed sophomoric cliches like ‘fascist’ ‘neocon’ ‘neoliberal’. Another cry in the night from an increasingly inarticulate and bamboozled left. Why don’t say what they mean, which is “you are a poo poo head”? 😉

  13. Peter Patton
    Posted October 31, 2010 at 11:12 am | Permalink


    Come on, admit it. You would PAY to be lead counsel for EITHER party in this litigation, wouldn’t you? 🙂

  14. kvd
    Posted October 31, 2010 at 11:33 am | Permalink

    Well I have always been very uncomfortable about The Australian Government’s handling/treatment of Hicks – the Australian citizen. This in no way is a defence of his reported or acknowledged actions, and perhaps rule .303 would have been best used to save having to think about it.

    But the fact remains Hicks committed no action for which there was a defined crime in Australia (aside: has that now changed – I don’t know?), was detained by a group called the Northern Alliance whose standing to do so was vague, handed to the US, and detained by them until they thought they’d fixed their judicial process sufficiently to charge him. He “plea-bargained” most probably just to get out of the place, and was returned to Oz, and further held, it now seems, on some pretty shakey ground.

    I agree completely with LE’s comments about this “sad little man”, however:

    What if he’d been an Aussie blogger in Tibet/China illegally stating his honest opinion of the regime, and suffered similar treatment?

    And if he committed no crime, but was imprisoned, which happens sometimes in all countries, where is the “recompense” for his unjust imprisonment? In the US this runs to 100’s of thousands per year. So, on that basis maybe his time in prison is “worth” offsetting against any “profits” he might now generate for telling his sad little story.

    You’re right; it’s all too hard. But I think our government should always “own” the problems caused by and/or faced by our citizens; and that, they failed to do, on the remarkable basis that he had committed no crime for which he could be charged.

  15. Peter Patton
    Posted October 31, 2010 at 12:00 pm | Permalink

    Agree with the ‘all too hard’ riff. And in this citizen’s gut, David Hicks has been more than sufficiently punished. Justice has been served no matter how fuzzily it maps onto law. He’s done his time.

  16. Posted October 31, 2010 at 12:55 pm | Permalink

    “…our government should always “own” the problems caused by and/or faced by our citizens…”

    Negative on that.

    An Australian who commits murder in (say) the UK would not have their actions owned by the Oz govt. Nor would anybody expect the Oz govt to take ownership of such action.

    The USA is well within its rights to vent its ire upon those who line up against it. Third country civilian participants in a war, who are captured by the other side are in a particularly unhappy situation.

    The mess Hicks got himself into was NOT the fault of the Australian govt.

  17. Posted October 31, 2010 at 12:58 pm | Permalink

    [email protected]: said “War criminal” is beyond tiresome.

    Yes… Very muddied, although there is a question on memoirs, profits, and illegal acts that arises from recent revelations in the UK.

    1) Blair was, before signing up for the war in Iraq, given advice from his legal gurus that that war would be illegal.

    2) Blair published memoirs, and is presumably getting his share of remainder bin profits.

    3) Our unlamented ex PM, Howard, has also published his memoirs.

    Now… imagine that a future determination in the UK was that the war was illegal. In that case, the words “war criminal” would appear appropriate, with Blair in the frame. If that happened, what of the profits from Blair’s memoirs?

    Now, with the Howard’s doctrine roughly of “we’ll do you for acting against the laws of our allies regardless of our laws”, that puts the profits of Howard’s memoirs, which I presume include discussion of Iraq, also in the difficult basket.

    I’m not saying either of those two PMs is necessarily a war criminal, not declaring the Iraq2 war was illegal (“dodgy and dumbt” certainly), but as heads of states commonly engineer wars and publish memoirs, it’s certain that some issue of proceeds of memoirs of some head of state will be raised at some stage. (I wonder if Pinochet ever published? He dodged the bullet in european law, so the question is moot in this case).

    As for the money from publishing profits, there’s not much to suggest Hick’s book would be generating much cash, it’d be in the remainder bin quicker than a politician’s.

    The other thing in the mix is that unlike many other people with publications that could be deemed the proceeds of crime, Hicks is probably unemployable (whether the effect of incarceration, the publicity, on top of his history of nomadic employment), so he’d be on some kind of welfare benefits anyway. Going for any publication profits would probably mean having to give the guy money every fortnight anyway. On the pure money side, the government cannot win, which leaves this latest effort of Brandis to appear little more than playing for headlines.

    I’d imagine the circles of friends and advisors of “unlawful immigrants” and other political footballs will be watching with interest.

  18. kvd
    Posted October 31, 2010 at 1:20 pm | Permalink

    Steve at the 18th Pub – a question:

    Why does Australia expend good money, much effort, and some diplomatic prestige on people like Corby, or Nguyen Tuong Van, or even the ditzy citizen who loses his/her passport in Toremolinos?

    The USA is well within it’s rights to vent it’s ire upon those who line up against it

    Dunno about rights, but they are certainly well practiced at it. Let’s hope they keep facing the other way – hey?

    Did not say the Australian govt was “at fault”. Did say, like others, that Hicks’ deeds should have been “our” problem to solve. Not some tricked up dodgy after-the-fact US “judicial process”.

    Personally, being judge jury and executioner for a moment, I would have set him free, by dawn parachute into Orzgun Province, with a bent and rusty AK47. As you say – his fault to fix.

  19. derrida derider
    Posted October 31, 2010 at 2:15 pm | Permalink

    IANAL, but it would seem incredibly risky for the government to seek to enforce any aspect of that US plea agreement through the Australian courts. Because if the court says it doesn’t hold water in Australia then it has to follow that there was no legal basis for Hicks’ detention in Australia. A civil action could be expected to follow.

    To other commenters, let’s not rehash here the justice or otherwise of Hicks’ treatment. We’re talking about law, not justice, and notoriously the two are often not at all the same thing.

  20. Posted October 31, 2010 at 2:20 pm | Permalink

    [email protected] My point was more that they are either criminal or combatants and if they were not going to be PoWs and you were not going to just shoot them, then they became criminals and Miranda applies. It is categorisation by elimination (so to speak).

    [email protected] I am sure Blair and Howard’s memoirs would have had sale value if the Iraq and Afghanistan wars had never taken place. Trying to work out what extra bit of profit (or even if there is any extra bit of profit) from that the wars did happen strikes me as a legal nightmare.

    Hicks, on the other hand, has memoir value only because he was detained. Since we do not normally ban criminals from publishing and profiting from memoirs (“Chopper” Reid comes to mind) why bother in his case anyway?

  21. TerjeP
    Posted October 31, 2010 at 2:24 pm | Permalink

    Hicks may have been a bad dude but it isn’t clear to me that he signed up for war against Australia or the US. As best I can tell he signed up for a war against the Northern Alliance and subsequently the Northern Alliance became our ally. If he did sign up for war against Australia and the US he deserves to get kicked black and blue by both.

    Aussie mercenaries operating in countries with which we have no alliance and which lack any legitimate democratic government should still be bound by the rules of war but should otherwise be free to take sides. And if an Aussie bumps of Mugabe I don’t think they should be locked up in an aussie prison.

    If Hicks had been fighting for the Northern Alliance he would have been spared our wrath. I’m not sure he would have been a better person though. A lot hinges on what he did when in the way of decisions and I don’t know the facts well enough to really say.

  22. Posted October 31, 2010 at 2:25 pm | Permalink

    [email protected] On reflection, you are probably right in your second paragraph. (It would also presumably have left open the option of trying them for breaking the laws of war.)

    Your first paragraph, that is roughly right, though there are complications. Part of the purpose was to differentiate soldiers from civilians and soldiers from murderers. Ideological killers deny both distinctions.

  23. derrida derider
    Posted October 31, 2010 at 2:32 pm | Permalink

    Lorenzo @10, it wasn’t to reward but to compensate him that Faisal was given Iraq. He’d been promised Syria and the Lebanon for fighting the Turks, but the British had secretly also promised them to the French at the same time.

    Similarly Hussein was given Transjordan (later Jordan) to compensate him for the promised Palestine, which the British of course had also promised to the Zionists and which they tried to keep for themselves.

    It really is true that an awful lot of the Middle East’s current problems have their roots in the despicable behaviour of of the British in the first quarter of the twentieth century.

  24. Peter Patton
    Posted October 31, 2010 at 2:35 pm | Permalink

    We’re talking about law, not justice, and notoriously the two are often not at all the same thing.

    My point precisely. And while we might say “well he would say that, wouldn’t he”, we would do well to heed Cicero’s warning.

    Silent enim leges inter arma

    In times of war, the law falls silent

    Even 2,000 years later, Cicero’s warning bells still ring for US Chief Justice Rehnquist

    The laws will not be silent during time of war…but they will speak with a somewhat different voice.


    Memo to those with wanderlust during times of war: Caveat emptor.

  25. Peter Patton
    Posted October 31, 2010 at 2:36 pm | Permalink

    Or in the case of an “adventurer” selling his jihadi wares.

    Caveat venditor

    Seller beware

  26. Peter Patton
    Posted October 31, 2010 at 4:18 pm | Permalink

    Lorenzo @10, it wasn’t to reward but to compensate him that Faisal was given Iraq. He’d been promised Syria and the Lebanon for fighting the Turks, but the British had secretly also promised them to the French at the same time.

    Faisal wasn’t promised anything. The Hussein-McMahon Agreement was with his father, the emir of Mecca. And promise is gilding the lily,

    Similarly Hussein was given Transjordan (later Jordan) to compensate him for the promised Palestine, which the British of course had also promised to the Zionists and which they tried to keep for themselves

    Again, Hussein was promised nothing, but given Transjordan – illegally mind you under the terms of the Treaty of Versaille’s Mandate system – to manage the conflict among Hussein’s three sons. In fact, Transjordan was part of both the area of Palestine promised to the Jews under the Balfour Declaration, and which was given legal and diplomatic effect in the Treaty of Versailles.

    If you want to understand all this you need to look away from the Brits and Jews and focus on the Arabs – Hussein, Abdallah, Farouk, Haj Amin al-Husseini, Faisal. That’s where the real action was.

  27. Posted October 31, 2010 at 9:37 pm | Permalink

    I have a strong sense that this one is best left alone by all concerned. I suppose some clever lawyer could attempt to make the issue of Hick’s post-plea Australian detention separable from his subsequent book profit, but it would still have to be argued on the merits, and it’s not something I’d be game to try on.

  28. Posted October 31, 2010 at 9:43 pm | Permalink

    The “book profits” matter will have to be decided without any financial input from me.
    I’ll not be buying a copy.

    Not to deny him the money, my boycott isn’t going to make any difference. But because the book seems to be light on the interesting stuff & too heavy on how-hard-done-by-he-was.

    If it was full of thrilling details of Jihad training camps, complete with details of destructive firepower, & ripping stuff about the command structure & motivations of his fellow jihadists, (i.e. stuff boys love to read) I’d be queueing up for a copy.

  29. Posted October 31, 2010 at 10:46 pm | Permalink

    If it was full of thrilling details of Jihad training camps, complete with details of destructive firepower, & ripping stuff about the command structure & motivations of his fellow jihadists, (i.e. stuff boys love to read) I’d be queueing up for a copy.

    An admission evincing the ‘merit of candour’, Steve.

    I suspect you’re not alone.

  30. kvd
    Posted November 1, 2010 at 3:45 am | Permalink

    I do agree with Steve and with SL, but I’d still like to know if any laws have been amended to provide for clearer treatment or standing in cases like this? i.e. if Hicks was somehow able to resume his “adventure” and was again captured, would he now be clearly guilty of a crime – Australian, US or even Afghan?

  31. Peter Patton
    Posted November 1, 2010 at 5:39 am | Permalink

    Steve I suspect you’re looking for a bogan Flashman. Alas I fear Mr. Hicks would only be able to half satisfy you.

  32. Peter Patton
    Posted November 1, 2010 at 6:26 am | Permalink


    I meant half of “bogan Flashman”. 😉

  33. Patrick
    Posted November 1, 2010 at 8:46 am | Permalink

    [email protected], isn’t the detention at worst non-justiciable exercise fo executive discretion to protect national security and at best simply allowed under the executive’s national security power?

    Seems to me very different to any question of the validity of any agreements.

    Meanwhile, I think we should send Hicks to China, tell them he supports radical muslim terrorism and then see how many friends he has left.

    Then we should export all his overly loud ex-friends to China as well…

  34. Posted November 1, 2010 at 9:16 am | Permalink

    [email protected] I was leaving the whole “he had Damascus but was given Baghdad” as a complication too far.

    [email protected] Who was playing whom is very much a complex issue. Part of the problem was that Lawrence (of Arabia) represented the Arab Office and was dealing with the Hashemites. Meanwhile, the India Office was playing footsie with their enemies, the al-Saud, who eventually displaced them as “guardians of the holy places”.

    Guess who the India Office liaison with the al-Saud was? St John Philby, father of Kim. Some families really are just wastes of space.

  35. Peter Patton
    Posted November 1, 2010 at 9:52 am | Permalink


    Oh I agree. The complexity is even several planes beyond my post to dd. It is a real blind spot in Anglo historiography that is focuses exclusively on Jews and white colonialism. It is ironically a classic case of ‘Orientalism’!

    For a uni course on US foreign policy in the middle east, I had to discover for myself “hold on, there were more than just Europeans making decisions”. I eventually stumbled on two biographies of Haj Amin al-Husseini [one of which written by his grand daughter], which opened up the whole vista from the perspective of the Arab power plays. It was only then that the real enormity of how screwed the Palestinians were; by the Arabs.

  36. Posted November 1, 2010 at 4:49 pm | Permalink

    While the defence team and Hicks seem to accept the conviction and the guilty plea, it is arguable that the circumstances under which Hicks was tried and convicted make it difficult to confirm the due-process ‘legitimacy’ of the conviction.

    Indeed I reckon it’s very difficult to the other way. The Gitmo debacle is a disgrace and its a great worry to me that there wasn’t more outrage at its very existence. Mr Rumfeld casually announces that the foundations of liberal justice are obsolete and proceeds to develop fascism…

    The question that should be asked is why he isn’t in prison.

  37. Posted November 1, 2010 at 4:50 pm | Permalink

    Steve – If rule .303 had been properly enforced at that time, there would be no dilemma now about section 337A.

    Oh Hell yes. It’s vital for our civilization that our soldiers behave like the Gestapo.

  38. Peter Patton
    Posted November 1, 2010 at 4:57 pm | Permalink

    I think the whole issue has explosive political potential. But the times will have to suit it. It will not be able to create those times. Best to keep the powder dry for now.

  39. Posted November 1, 2010 at 9:59 pm | Permalink

    [email protected] We have had the whole discussion about the uniform-gives-protection/no-uniform-no-protection issue. It was more that it was accepted that those who engaged in acts of war without wearing uniforms were vulnerable to summary justice until fighting the Nazis made un-uniformed partisans heroic. (Particularly given the Nazis went in for the whole civilian reprisals things.)

    Now we are fighting folk with lots of ideological similarities to the Nazis who go directly to the civilian “reprisals”. The ironies abound.

    [email protected] Gitmo was not fascism — that is a type of political movement and/or political regime. No more than interring the Japanese-Americans in WWII was fascism.

    I have no time for torture, at all, but I get the difficulties policy makers were grappling with where neither simply treating people who had no respect for any of the laws of war as PoWs nor engaging in conventional criminal procedures seemed appropriate.

    Closing Gitmo has led to more drone attacks as a natural consequence: a sort of “hi tech” rule .303.

  40. jennifer
    Posted May 24, 2011 at 6:57 pm | Permalink

    So it looks like Schapelle Corby is the only one who the government has used the proceeds of crime act on to confiscate proceeds. Why just her when her book was not about the crime at all as she says she is innocent. Corby was not given a fair trial in Indonesia and her story was in the public’s interest. She covered the flaws during her trial, the lies from Mick keelty, the cover ups from Qantas airlines and her life up until the book was published. Seems very unfair that the government took the money from her book but people like Chopper Reid, the author of Shantaram, Gregory Roberts which is soon to be a movie, David Hicks and the many others can keep their profits. One law for some and another law for others it seems.

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  2. By Skepticlawyer » Disgorging dingo money… on November 21, 2010 at 7:30 am

    […] ill-gotten gains (in my field, we call it ‘disgorgement’). Now, as I’ve noted on the recent David Hicks post, most of the cases involve ex-spies or something of that sort. Heath G has alerted me to a case […]

  3. […] a year ago, I speculated on this blog that the Federal government would not move to strip David Hicks of the profit he gained from the […]

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