Аль-Каидада оқыған австралиялық және Гуантанамо тұтқыны Дэвид Хикс

Australian who trained with Al Qaeda and was later detained at Guantanamo Bay

David Matthew Hicks (born 7 August 1975) is an Australian who attended al Qaeda's Al Farouq training camp in Afghanistan. Hicks traveled to Pakistan after converting to Islam to learn more about the faith, eventually leading to his time in the training camp. He alleges that he was unfamiliar with al Qaeda had no idea that they targeted civilians. Hicks met with Osama bin Laden during 2001. Later that year, he was captured and brought to the U. S. to be tried. He was then detained by the United States in Guantanamo Bay detention camp from 2002 until 2007, where he reported undergoing torture at the hands of American soldiers. He was eventually convicted under the Military Commissions Act of 2006. In 2012, his conviction was overturned because the law under which he was charged had not been passed at the time that his crimes were committed.

David Hicks was born in Adelaide, South Australia, to Terry and Susan Hicks. His parents separated when he was ten years old, and his father later remarried. He has a half sister. Described by his father as "a typical boy who couldn't settle down" and by his former school principal as one of "the most troublesome kids", Hicks reportedly experimented with alcohol and drugs as a teenager and was expelled from Smithfield Plains High School in 1990 at age 14. Before turning 15, Hicks was given dispensation by his father from attending school. His former partner has claimed that Hicks turned to criminal activity, including vehicle theft, allegedly in order to feed himself, although no adult criminal record was ever recorded for this. Hicks moved between various jobs, including factory work and working at a series of outback cattle stations in the Northern Territory, Queensland and South Australia.

Hicks met Jodie Sparrow in Adelaide when he was 17 years old. Sparrow already had a daughter, whom Hicks raised as his own. David Hicks appeared in court in April 2017 for allegedly assaulting a subsequent partner in Craigmore, South Australia but the case was dropped with legal costs awarded against the South Australia Police.

In 2007, Hicks consented to a plea bargain in which he pleaded guilty to charges of providing material support for terrorism by the United States Guantanamo military commission under the Military Commissions Act of 2006. Hicks received a suspended sentence and returned to Australia. The conviction was overturned by the US Court of Military Commission Review in February 2015. Hicks became one of the first people charged and subsequently convicted under the Military Commissions Act. There was widespread Australian and international criticism and political controversy over Hicks' treatment, the evidence tendered against him, his trial outcome, and the newly created legal system under which he was prosecuted. In January 2015, Hicks' lawyer announced that the US government had said that Hick's conviction was not correct and that it does not dispute his innocence. Earlier, during 1999, Hicks converted to Islam He was transported to Guantanamo Bay where he was designated an enemy combatant. He alleged that during his detention, he was tortured via anal examination. The United States first filed charges against Hicks in 2004 Those proceedings failed in 2006 when the Supreme Court of the United States ruled, in Hamdan v. Rumsfeld, that the military commission system was unconstitutional. The military commission system was re established by an act of the United States Congress. Revised charges were filed against Hicks in February 2007 before a new commission under the new act. Colonel Morris Davis, the former Pentagon chief prosecutor, later confessed political interference in the case by the Bush administration in the United States and the Howard government in Australia. and began studying Wahhabism at a mosque in Gilles Plains, a suburb north of Adelaide. The president of the Islamic Society of South Australia, Wali Hanifi, described Hicks as having "some interest in military things", and that "after personal experience and research, [found] that Islam was the answer".</blockquote>

He renounced his faith during the earlier years of his detention at Guantánamo. In June 2006, Moazzam Begg, a British man who had also been held at Guantanamo Bay but was released in 2005, claimed in his book, Enemy Combatant: A British Muslim's Journey to Guantanamo and Back, that Hicks had abandoned his Islamic beliefs, and had been denounced by a fellow inmate, Uthman al Harbi, for his lack of observance. This has also been confirmed by his military lawyer, Major Michael Mori, who declined to say why Hicks was no longer a Muslim, saying it was a personal issue.

Around May 1999, Hicks travelled to Albania in order to join the Kosovo Liberation Army. The US military alleged that he undertook basic training and hostile action before returning to Australia and converting to Islam. The KLA did not accept Islamic fundamentalism, and many of its fighters and fundraisers were Catholic. In June 1999, the Kosovo War ended and the KLA disbanded as part of UNSCR 1244. Hicks described his time with the KLA as a life changing experience and on his return to Australia, converted to Islam and began studying at a mosque in Gilles Plains in Adelaide.

On 9 September 2001, Hicks travelled from Afghanistan to Pakistan to visit a friend. Terry Hicks, said that his son seemed at first unaware, then sceptical, of the 11 September attacks when they spoke on a mobile phone in early November 2001. He also noted David Hicks commented about "going off to Kabul to defend it against the Northern Alliance." In October and November 2001, Hicks wrote multiple letters to his mother in Australia. He asked that replies were to be directed to Abu Muslim Austraili, a pseudonym he used to circumvent non Muslim spies he believed intercepted correspondence. In these letters he detailed the validity of jihad and his own prospect of martyrdom. <blockquote>As a Muslim young and fit my responsibility is to protect my brothers from aggressive non believers and not let them destroy it. Islam will rule again but for now we must have patience we are asked to sacrifice our lives for Allahs cause why not? There are many privileges in heaven. It is not just war, it is jihad. One reward I get in being martyred I get to take ten members of my family to heaven who were destined for hell, but first I also must be martyred. We are all going to die one day so why not be martyred? Hicks's father Terry, when interviewed, said "David was captured by the Northern Alliance unarmed in the back of a truck or a van. So he wasn't on the battlefield at all." In 2002, Hicks's father sought to have him brought to Australia for trial. In 2003, the Australian government requested that Hicks be brought to trial without further delay, extending Hicks consular support and legal aid under the Special Circumstances Overseas Scheme.

Hicks was charged by a US military commission on 26 August 2004. In Guantanamo, Hicks had signed a statement written by American military investigators which read, in part, "I believe that al Qaeda camps provided a great opportunity for Muslims like myself from all over the world to train for military operations and Jihad. I knew after six months that I was receiving training from al Qaeda, who had declared war on numerous countries and peoples." The indictment later prepared by US military prosecutors for his commission trial alleged that, prior to his capture in 2001, Hicks had trained and conspired in various ways and was guilty of "aiding the enemy" while an "unprivileged belligerent" but did not allege any specific acts of violence. The indictment made the following allegations:
In November 1999, Hicks travelled to Pakistan, where he joined the paramilitary Islamist group, Lashkar e Toiba (Army of the Pure). Hicks trained for two months at a Lashkar e Toiba camp in Pakistan, where he received weapons training and that, during 2000, he served with a Lashkar e Toiba group near the Pakistan administered Kashmir. In January 2001, Hicks travelled to Afghanistan, then under the control of the Taliban regime, where he presented a letter of introduction from Lashkar e Toiba to Ibn al Shaykh al Libi, a senior al Qaeda member, and was given the alias "Mohammed Dawood". Hicks was sent to al Qaeda's al Farouq training camp outside Kandahar, where he trained for eight weeks, receiving further weapons training as well as training with land mines and explosives. Hicks did a further seven week course at al Farouq, during which he studied marksmanship, ambush, camouflage and intelligence techniques. At Osama bin Laden's request, Hicks translated some al Qaeda training materials from Arabic into English. In June 2001, on the instructions of Mohammed Atef, an al Qaeda military commander, Hicks went to another training camp at Tarnak Farm, where he studied "urban tactics", including the use of assault and sniper rifles, rappelling, kidnapping and assassination techniques. In August 2001, Hicks went to Kabul, where he studied information collection and intelligence, as well as Islamic theology including the doctrines of jihad and martyrdom as understood through al Qaeda's fundamentalist interpretation of Islam. In September 2001, Hicks travelled to Pakistan and was there at the time of the 11 September attacks on the United States, which he saw on television. Hicks returned to Afghanistan in anticipation of the attack by the United States and its allies on the Taliban regime, which was sheltering Osama bin Laden. On returning to Kabul, Hicks was assigned by Mohammed Atef to the defence of Kandahar and that he joined a group of mixed al Qaeda and Taliban fighters at Kandahar airport. At the end of October, however, Hicks and his party travelled north to join in the fighting against the forces of the US and its allies. After arriving in Konduz on 9 November 2001, he joined a group which included John Walker Lindh (the "American Taliban"). This group was engaged in combat against Coalition forces and, during the fighting, he was captured by Coalition forces. On 29 June 2006, the US Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions were illegal under United States law and the Geneva Conventions. The commission trying Hicks was abolished and the charges against him voided. In an interview with The Age newspaper in January 2007, Col. Morris Davis, the chief prosecutor in the Guantanamo military commissions, also alleged that Hicks had been issued with weapons to fight US troops, and had conducted surveillance against US and international embassies. Davis stated he would be charged for these offences, and predicted the charging would take place before the end of January. He alleged that Hicks "knew and associated with a number of al Qaeda senior leadership" and that "he conducted surveillance on the US embassy and other embassies". He went on to compare Hicks to the Bali bombers, expressing concern that Australians were misjudging the military commission system due to PR "smoke" from Hicks's lawyer. James Yee, an Islamic US Army chaplain who regularly counselled Hicks while detained at Guantanamo Bay, gave a statement shortly after Hicks was freed in December 2007. He said that he did not feel Hicks was a threat to Australia, and that "Any American soldier who has been through basic training has had 50 times more training than this guy."

The US Army appointed United States Marine Corps Major Michael Mori as defence counsel to Hicks. Hicks's civilian defence was being funded by Dick Smith, an Australian entrepreneur. Smith has stated that he was funding the defence "to get him a fair trial".

In November 2004, Hicks's trial was delayed when a US Federal Court ruled that the military commissions in question were unconstitutional. In February 2005, the Hicks's family lawyer, Stephen Kenny, who had been representing Hicks in Australia without compensation since 2002, was dismissed from the defence team and Vietnam veteran and army reservist David McLeod replaced him. Hicks's trial was next set for 10 January 2005 but there were numerous postponements and further legal wrangling over the years that followed. In mid February 2005, Jumana Musa, Amnesty International's legal observer at Guantanamo Bay, visited Australia to speak to the attorney general, Philip Ruddock, (a member of Amnesty International) about the military commissions. Musa stated that Australia was "the only country that seems to have come out and said that the idea of trying somebody, their own citizen, before this process might be OK, and I think that should be a concern to anybody." In July 2005, a US appeals court accepted the prosecution claim that because "the President of the United States issued a memorandum in which he determined that none of the provisions of the Geneva Conventions apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a high contracting party to Geneva", that Hicks, among others, could be tried by a military tribunal. In July 2005, the US appeals court ruled that the trial of "Unlawful Combatants" did not come under the Geneva Convention, and that they could be tried by a military tribunal. In early August 2005, leaked emails from former US prosecutors criticised the legal process, accusing it of being "a half hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low level accused in a process that appears to be rigged" and "writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard, particularly when you want to call yourself an officer and lawyer". Ruddock responded by saying that the emails, written in March 2004, "must be seen as historic rather than current." In October 2005, the US government announced that if Hicks was convicted, his pre trial detention would not count as time served against his sentence. On 15 November 2005, District Judge Colleen Kollar Kotelly stayed the proceeding against Hicks until the US Supreme Court had ruled on Hamdan's appeal over their constitutionality. 2006 was also fraught with delays. On 29 June 2006, in the case Hamdan v. Rumsfeld, the US Supreme Court ruled that the military tribunals were illegal under United States law and the Geneva Conventions. On 7 July 2006, a memo was issued from The Pentagon directing that all military detainees are entitled to humane treatment and to certain basic legal standards, as required by Common Article 3 of the Geneva Conventions. On 15 August 2006, Attorney General Philip Ruddock announced that he would seek to return Hicks to Australia if the United States did not proceed quickly to lay substantive new charges. As a result of the Supreme Court decision, the United States Congress passed the Military Commissions Act of 2006 to provide an alternative method for trying detainees held at Guantanamo Bay. The Act was signed into law by President Bush on 17 October 2006. On 6 December 2006, Hicks's legal team lodged documents with the Federal Court of Australia, arguing that the Australian government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks's incarceration by the US comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. On 9 March 2007, his lawyer said that David Hicks was expected to bring a case seeking to force the Australian Federal Government to ask the US government to free him. On 26 March 2007, the television journalist Leigh Sales suggested that Hicks was attempting to avoid trial by military commission, commenting "The Hicks defence strategy relies on delaying the process for so long that the Australian Government will be forced to ask for the prisoner's return." As years passed, the legitimacy, integrity and fairness of trying Hicks before a US military commission was increasingly questioned.

In September 2005, it was realised that Hicks may be eligible for British citizenship through his mother, as a consequence of the Nationality, Immigration and Asylum Act 2002. Hicks's British heritage was revealed during a casual conversation with his lawyer, about the 2005 Ashes cricket series. The British government had previously negotiated the release of the nine British nationals incarcerated at Guantanamo Bay, so it was considered possible that these releases could be extended to Hicks if his application was successful. Hicks applied for citizenship, but there were six months of delays. In November 2005, the British Home Office rejected Hicks's application for British citizenship on character grounds, but his lawyers appealed against the decision. On 13 December 2005, Lord Justice Lawrence Collins of the High Court ruled that then Home Secretary Charles Clarke had "no power in law" to deprive Mr Hicks of British citizenship "and so he must be registered". The Home Office announced it would take the matter to the Court of Appeal, but Justice Collins denied them a stay of judgement, meaning that the British government must proceed with the application. On 17 March 2006 the Home Office alleged during its appeal case that Hicks had admitted in 2003 to the Security Service (British intelligence agency MI5) that he had undergone extensive terrorist training in Afghanistan. On 12 April 2006 the Court of Appeal upheld the High Court's decision that Hicks was entitled to British citizenship. The Home Office declared it would appeal the matter again, its last option being to submit an appeal to Britain's highest court, the House of Lords, no later than 25 April. On 5 May, however, the Court of Appeal declared that no further appeals would be allowed, and that the Home Office must grant Hicks British citizenship. Hicks's legal team claimed in the High Court on 14 June 2006 that the process of Mr Hicks's registration as a British citizen had been delayed and obstructed by the United States, which had not allowed British consular access to Hicks in order to conduct the oath of allegiance to the Queen and the United Kingdom. His military lawyer has the authority to administer oaths and offered to conduct the oath if the American government permitted it. On 27 June, with Hicks's British citizenship confirmed, the British Foreign and Commonwealth Office announced that it would not seek to lobby for his release as it had with the other British detainees. The reason given was that Hicks was an Australian citizen when he was captured and detained and that he had received Australian consular assistance. On 5 July 2006 Hicks was registered as a British citizen, albeit only for a few hours — Home Secretary John Reid intervened to revoke Hicks's new citizenship almost as soon as it had been granted, citing section 56 of the Immigration, Asylum and Nationality Act 2006 allowing the Home Secretary to "deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good". Hicks's legal team called the decision an "abuse of power", and announced they would lodge an appeal with the UK Special Immigration Appeals Commission and the High Court.

Following the death of three detainees, camp authorities seized prisoners' papers. Described as a security measure, it was claimed that instructions for tying a hangman's noose had been found written on stationery issued to the lawyers who met with detainees to discuss their habeas corpus requests. The Department of Justice acknowledged in court that "privileged attorney client communications" had been seized. Hicks's lawyer questioned whether Hicks could have been part of a suicide plot, since he had spent the preceding four months in solitary confinement in a different part of the camp, and expressed concern that attorney client confidentiality, "the last legal right that was being respected", had been violated.

Australian and US critics speculated that the one year media ban was a condition requested by the Australian government and granted as a political favour. Senator Bob Brown of the Australian Greens said, "America's guarantee of free speech under its constitution would have rendered such a gag illegal in the U. S." The Law Council of Australia reported that the trial was "a contrived affair played out for the benefit of the media and the public", "designed to lay a veneer of due process over a political and pragmatic bargain", serving to corrode the rule of law. They referred to government support for the military tribunal process as shameful. In an interview, the prominent human rights lawyer and UN war crimes judge Geoffrey Robertson QC said that the pre trial agreement "was obviously an expedient at the request of an Australian Government that needed to shore up votes". He went on to note that 'no one looks on [the agreement] as a proper judicial procedure at all. ';

The Pentagon chief prosecutor Colonel Morris Davis, who had resigned from the US defence force citing dissatisfaction with the Guantanamo military commission process, alleged that the process had become highly politicised and that he had felt "pressured to do something less than full, fair and open". Davis later elaborated, saying that the Hicks trial was flawed and appeared rushed for the political benefit of the Howard government in Australia. Davis said of his former superiors that "there is no question they wanted me to stage show trials that have nothing to do with the centuries old tradition of military justice in America". On 28 April 2008, while testifying at a pre trial hearing at Guantanamo for Salim Hamdan, Colonel Davis said that he had "inherited" the Hicks case but did not consider it serious enough to warrant prosecution. In November 2007, allegations from an anonymous US military officer, that a high level political agreement had occurred in the Hicks case, were reported. The officer said that "one of our staffers was present when Vice President Cheney interfered directly to get Hicks's plea bargain deal. He did it apparently, as part of a deal cut with Howard". Australian Prime Minister John Howard denied any involvement in Hicks's plea bargain. with Prime Minister Howard saying "We did not impose the sentence, the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks's lawyers, and the suggestion  that it's got something to do with the Australian election is absurd." Brigadier General Thomas Hemingway, the legal adviser to the military tribunal convening authority, has since claimed the gag order as his idea. Federal Attorney General Philip Ruddock stated that Australian law would not prohibit Hicks from speaking to media, although Hicks would be prevented from selling his story.

On 20 May 2007, Hicks arrived at RAAF Base Edinburgh in Adelaide, South Australia on a chartered flight reported to have cost the Australian government up to A$500,000. Attorney General Philip Ruddock asserted that this arrangement was the consequence of US restrictions on the transit of Hicks through US airspace or territory preventing the use of less expensive commercial flights. Hicks was taken to Adelaide's Yatala Labour Prison where he was kept in solitary confinement in the state's highest security ward, G Division. Hicks was released on 29 December 2007 and placed under a control order obtained by the AFP earlier that month. The order required Hicks to not leave Australia, to report to a police station three times a week, and to use only an AFP approved mobile phone SIM card. On 19 February 2008 he was given special dispensation by federal magistrate Warren Donald to leave South Australia. On 20 February 2008, Hicks moved to Abbotsford, New South Wales. A curfew between 1:00 am and 5:00 am was imposed. Hicks' control order expired in December 2008 and the AFP did not renew it. Hicks married Aloysia Hicks, a human rights activist who studied at the University of Sydney. The Sydney Morning Herald reported that Michael Mori, one of his former military attorneys, attended the ceremony. It was also reported that Dick Smith secured employment for Hicks in a Sydney landscape gardening business. In May 2011 his father, wife and supporters, including former politician and justice John Dowd, former Human Rights Commissioner Elizabeth Evatt, human rights lawyer Julian Burnside, along with others started a campaign to clear Hicks' name and to push for an inquiry into his alleged mistreatment in Guantanamo. Their campaign launch featured Brandon Neely, a former US soldier who guarded Hicks in Guantanamo. In October 2012, the United States Court of Appeals ruled that the charge under which Hicks had been convicted was invalid, because the law did not exist at the time of the alleged offence, and it could not be applied retrospectively. Propublica obtained a copy of Guantanamo's Chief Prosecutor, Mark S. Martins opposition to Hicks's motion to have his charges dropped. His reply advised that Hicks's motion shouldn't be considered, on the grounds he had pleaded guilty. However, Raymond Bonner, writing in the Pacific Standard, reported that Martins's reply made the "crucial concession" that "if the appeal were allowed, 'the Court should not confirm Hicks's material support conviction.

On 16 October 2010, Random House Australia published an autobiography of Hicks, entitled Guantanamo: My Journey. Hicks said: "This is the first time I have had the opportunity to tell my story publicly. I hope readers find the book is not only a story of injustice, but also one of hope." Early reviews of the book were relatively praising of its literary merit. The book was originally not available in US bookstores, nor for sale in online booksellers to US readers. Australia's proceeds of crime law prevents convicted criminals profiting from describing their crimes. At the time of publication, Nikki Christer, a spokesperson for Random House, refused to comment whether Hicks was being paid for the book or whether the publisher or the author are at risk of falling foul of federal proceeds of crime laws. Christer said that Random House's financial arrangements with its authors were confidential. ABC News quoted George Williams, a legal expert from the University of New South Wales, who said "You can't proceed unless you actually know that Hicks is profiting. Unless that can be shown, then there's no basis to make an order against him." ABC News noted that his conviction might be overturned, in which case he would be free to receive royalties. Legal experts believe the prosecutions case will fail. In 2004, federal proceeds of crime laws were amended to include offences covered by the US military commission, in order to prevent Hicks from profiting. As the military commission that convicted Hicks was found to be invalid, in 2011 the amendment was repealed and the existing federal proceeds of crime legislation no longer applies, although the DPP believes the federal law is still broad enough to cover Hicks. South Australia still has laws preventing Hicks from profiting, but these may not apply in regard to a trial that did not satisfy the principles of natural justice and an attempt to apply them to Hicks could, according to Williams, end up in the High Court as a major constitutional challenge. Following the publication of his autobiography, Hicks received a standing ovation from an audience of 900 people at his first public appearance at the Sydney Writers' Festival in May 2011. On 23 July 2012, the Director of Public Prosecutions announced that the case against Hicks had been dropped, as documentary evidence such as Hicks' guilty plea and other admissions may not be admissible in court due to the circumstances in which they were obtained. Hicks' legal team argued that they were made under "instances of severe beatings, sleep deprivation and other conditions of detention that contravene international human rights norms." Another reason to drop was that Hicks had made an "Alford plea", which Australia does not recognise. The Commonwealth has been ordered to pay Hicks' court costs. Outside court, Hicks claimed that the decision had cleared his name. Prime Minister Julia Gillard refused to comment on whether the decision meant Hicks' name had been cleared, saying it was a decision independent of government. Hicks' autobiography is believed to have sold 30,000 copies, generating around $10,000 in royalties.

In 2003, Chris Tugwell wrote a stage play called X Ray, about the plight of David Hicks, as he was being held in Guantanamo Bay detention camp. Hicks' family was consulted for the play, with many of the vignettes based on the few letters they received from Mr Hicks during the first two years of his imprisonment. The play was named the "sensation" of the 2004 Adelaide Fringe and the "highlight" of the 2005 Darwin Festival. A US production opened in November 2005. A radio adaptation, commissioned by the Australian Broadcasting Corporation, went to air on Radio National's Airplay in November 2004 and was repeated in the 2005 and 2006 summer seasons. The radio adaptation was awarded the bronze medal for Best Drama Special at the New York Festival's 2006 International Radio Awards.

"The Trials of David Hicks" (multimedia), The Age (Fairfax Media). Credits to Jane Holroyd, Matthew Absalom Wong, Andrew Webster, Simon Johnanson. The President Versus David Hicks (2004). A documentary about the "Australian Taliban", David Hicks. The film follows the struggles of David's father. Produced by SBS TV. Directed by Curtis Levy and Bentley Dean. Written by Luke Thomas Crowe. 52 minutes. "David Hicks: his first public address since the publication of his memoir", interview with Donna Mulhearn (audio), Radio National goes to the 2011 Sydney Writers' Festival (Australian Broadcasting Corporation) (2011). "Former Guantanamo detainee David Hicks speaks with the World Socialist Web Site" By Richard Phillips (22 October 2011).