The Case of David Hicks

[Transcript of FOUR CORNERS program, reported by Debbie Whitmont and broadcast by the Australian Broadcasting Corporation, October 31, 2005.]


DEBBIE WHITMONT: On the 11th November 1999, David Hicks left his home in Adelaide with a one-way ticket to Pakistan. He was 24.


TERRY HICKS: His original plan was to go travel the Silk Road.


IAN KNEVITT: Yeah, he was looking for his destiny or whatever you want to put it. Direction.


ANNETTE KNEVITT: I think he was looking for adventure.


DEBBIE WHITMONT: But David Hicks would never travel the Silk Road. Instead, as US military investigators would later say, “He sympathised with and received training from the organisation known as al-Qaeda, headed by Osama bin Laden.” Next month, it’s expected David Hicks will be tried by an American military commission. He could spend the rest of his life in prison.


TERRY HICKS: If David’s guilty of anything, terrorism, whatever, then I think David then has to go through due process of law.


JOHN HOWARD ON RADIO 2002: He’s in detention. He knowingly joined the Taliban and al-Qaeda. I don’t have any sympathy for any Australian who’s done that.


MAJOR MICHAEL (DAN) MORI, HICKS’ MILITARY ATTORNEY: Mr Howard’s not saying David violated any law. Why? Because David hasn’t violated a law.


DEBBIE WHITMONT: Tonight, for the first time, Four Corners reveals the case against David Hicks. We examine the crucial evidence that the US military commission will rely on for his trial Hicks’s own statements to both US and Australian investigators.


JOSH DRATEL, HICKS’ CIVILIAN ATTORNEY: The Australians, the Americans, they all know. They all know. This is a, this is a facade. This is a farce. And this is play acting, drama designed to try to justify and substantiate these military commissions.


GEORGE W. BUSH, SEPTEMBER 11 2001: Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts.


JOHN HOWARD, SEPTEMBER 11 2001: I can only hope that those responsible for this despicable series of attacks upon the United States will be hunted down and meted out the justice they so much deserve.


DEBBIE WHITMONT: In 2001, as the World Trade Center still smouldered, US government lawyers were already planning a new legal system.


BRAD BERENSON, FORMER WHITE HOUSE COUNSEL: On the day itself the basic theoretical building blocks of the Administration’s response were already laid. Very quickly it was seen by everyone from the President on down as an act of war that would call forth the President’s war powers.


DEBBIE WHITMONT: The use of war powers was a signal, not only to the military, but also to the lawyers.


VIET DINH, ASST ATTORNEY GENERAL, US DEPT OF JUSTICE: Right after September 11, the President turned to Attorney-General John Ashcroft and said, “John, you make sure this does not happen again”.


BRAD BERENSON, FORMER WHITE HOUSE COUNSEL: It definitely required a shift in paradigm. It definitely required you to check at the door the assumptions that you had been trained in when all you were worried about was crime.


DEBBIE WHITMONT: Two months later, the President would create a new system of justice by military order. Taliban and al-Qaeda suspects would have no access to American courts and none of the usual protections of the rules of evidence. Instead, they’d be tried by military commissions. One of those on the original working party for military commissions was Brad Berenson.


BRAD BERENSON, FORMER WHITE HOUSE COUNSEL: Under our justice system if you capture a suspected criminal you have to advise him of his right to have a lawyer and of his right not to tell you anything, and most criminals who have an ounce of sense rapidly invoke those rights. Er, in a war it’s very, very different.


DEBBIE WHITMONT: But in New York, just a few blocks from the World Trade Center, civil rights lawyers were alarmed.


MICHAEL RATNER, CENTRE FOR CONSTITUTIONAL RIGHTS: We saw that order on November 13th and we said, “This is outrageous, you can’t do this. You can’t try people without having real trials. You can’t have the President be the prosecutor, the judge and the jury. And you can’t simply pick up people and detain them forever”.


DEBBIE WHITMONT: But in Afghanistan, it was already beginning to happen. The Americans and their ally the Northern Alliance soon held thousands of prisoners.


GEORGE W. BUSH, 28 JANUARY 2002: These are killers. These are terrorists. They know no countries.


DEBBIE WHITMONT: The White House decided that neither Taliban nor al-Qaeda captives would be called prisoners of war or have a right to be protected under the Geneva Conventions. Instead, they’d be called illegal combatants.


GEORGE W. BUSH, 28 JANUARY 2002: They will not be treated as prisoners of war. They are illegal combatants. Secondly, they will be treated humanely.


DEBBIE WHITMONT: The Secretary of State, Colin Powell, protested in vain. His Chief Legal Advisor was William Taft.


WILLIAM TAFT, FORMER LEGAL ADVISER, US DEPT OF STATE: We had felt in the State Department and, I believe, the leadership of the Defense Department, the Secretary and the Chairman and joint chiefs, had argued that we should simply apply the Geneva Conventions across the board. Er, but that was not accepted.


DEBBIE WHITMONT: The fear, even among many in the military, was that if America didn’t stick to the Geneva Conventions, American troops could be vulnerable themselves in the future.


LT CDR CHARLES SWIFT, MILITARY ATTORNEY: I believe that there is a desire to have justice for 9/11 and other crimes. The victims are owed that, absolutely, they are owed that. The American society is owed that. But for whatever reason, we’re not willing to use the tried and true instruments of justice in this case. Justice, you know, when you don’t have law, what you’ve got is revenge.


DEBBIE WHITMONT: In January 2002, the first of the prisoners from Afghanistan were loaded, hooded and shackled, on to a plane for Guantanamo Bay. David Hicks was among them.


REAR ADMIRAL JOHN STUFFLEBEEM, US NAVY, 28 JANUARY 2002: They are bad guys. These are the worst of the worst. And if let out on the street they will go back to the proclivity of trying to kill Americans and others.


JOSH DRATEL, HICKS’ CIVILIAN ATTORNEY: The worst of the worst is just purely designed to prejudice. It’s based on no facts and certainly not based on any formal or fair adjudication of anybody’s situation. They know David killed no-one. They know that.


DEBBIE WHITMONT: This photo of Hicks was soon beamed around the world. The Australian government was quick to say Hicks was a fighter who’d trained with terrorists.


ALEXANDER DOWNER, 30 JANUARY 2002: We do have quite a lot of information on his activities. And I can only say to you on the basis of that he’s not somebody to whom I extend a great deal of sympathy.


DEBBIE WHITMONT: From the start, David Hicks has co-operated with all his interrogators. He’s openly admitted he trained with al-Qaeda and saw Osama bin Laden about eight times. Four Corners can confirm, that in Guantanamo, Hicks signed a statement written by American military investigators that includes the following, “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.” That statement, signed after 15 months detention, and apparently not based on tape-recorded interviews, will certainly be challenged. But almost a year earlier, also at Guantanamo, Australian Federal Police tape-recorded a revealing, and seemingly voluntary, five hour interview with David Hicks. In it, Hicks tells his story. And tonight, for the first time, Four Corners is making that story public. It begins in 1998 with an ad in an Adelaide newspaper. Horse trainers wanted to work in Japan. Hicks spent three months in Japan as a horse trainer. When he got back to Adelaide, he found the trip had changed him.


ACTOR’S VOICE, HICKS’ AUSTRALIAN FEDERAL POLICE INTERVIEW: Well, I realised that life was more than just living the way I was, which was pretty boring, so I wanted to travel. So I looked at the atlas and had a look at the world, basically, and I liked the idea of the Himalayas.


DEBBIE WHITMONT: Hicks spent four months planning his next adventure.


ACTOR’S VOICE, HICKS’ AUSTRALIAN FEDERAL POLICE INTERVIEW: I just read, read heaps of books, how to make this trip into a reality. So I took down notes of all the different things I thought would make it a reality — maps and people and the different peoples and different religions. So that’s when I first learned about Islam.


DEBBIE WHITMONT: He moved in with an old friend, Ian Knevitt.


IAN KNEVITT: It was purely an adventure. Big time. He printed out the maps that he needed. He traced some out of our encyclopedias and that, just… Just went from there to work out which trek he was going to take as he went through.


ACTOR’S VOICE, HICKS’ AUSTRALIAN FEDERAL POLICE INTERVIEW: You’ve got, like, Kashmir, Afghanistan. If you can get there, it’s like a great big adventure and stuff like this. Though I wanted to set myself, like, that… that big adventure and making it even more challenging. Like being a horse rider. I was determined I’d ride a horse, basically like the old Silk Route sort of thing.


DEBBIE WHITMONT: David Hicks had left school early. He’d always been employed — boning chickens, filleting kangaroos, recycling tyres. But by the time he was 24, he had a broken relationship, two small children and he’d had some bad habits.


TERRY HICKS: I suppose most kids in that era were into drugs, trying out new things and David went through that stage himself. Um, he was probably tied up with undesirables, as I call them, but, um, I give David his credit, he did come out of that situation, he did it on his own.


ANNETTE KNEVITT: I really think he wanted to get away from the drugs and the alcohol and he wanted to find a purpose in life. He wanted to do good and find a purpose in life and get rid of all that other rubbish that has happened in his life up to that stage.


IAN KNEVITT: Escaping from his life here and… ‘Cause things never, never really went 100 per cent his way and so he tried a new adventure.


DEBBIE WHITMONT: Hicks needed money. He went back to Japan to work. When he wasn’t working, he watched TV.


ACTOR’S VOICE, HICKS’ AUSTRALIAN FEDERAL POLICE INTERVIEW: At that time Kosovo was dominating the media and after watching that I just had something inside that said I had to go and do that, like a spur of the moment sort of thing. I was watching the briefings. I found out there was one group and they were training in northern Albania. They were going into Kosovo and I realised that maybe, at a wild guess, I could go there and try it and I did it. To me that was doing the impossible.


DEBBIE WHITMONT: But by the time David Hicks got there, the war in Kosovo between Serbia and Kosovo’s Albanian majority was almost over. Hicks trained for four weeks with the KLA and signed up with NATO. But then there was a peace deal and Hicks and other foreign volunteers were sent home under NATO orders. This photo was taken in Albania on his first day of training — as a posed souvenir — with weapons borrowed from a storeroom.


MAJOR MICHAEL (DAN) MORI, HICKS’ MILITARY ATTORNEY: If you actually look at that time, the KLA was being supported by the United States of America, um, there were rallies within the United States supporting the KLA.


DEBBIE WHITMONT: Major Dan Mori, a marine, is the lawyer appointed by the Defense Department to represent David Hicks. Mori has been to the Balkans. He says Hicks never even made it to Kosovo — he never got across the Albanian border.


MAJOR MICHAEL (DAN) MORI, HICKS’ MILITARY ATTORNEY: I’ve been to Kosovo. I spoke to people that knew him from when he got there, the day he left and David Hicks never fought in Kosovo.


DEBBIE WHITMONT: Though the KLA were Muslims, David Hicks, at that stage, wasn’t. He told the Australian Federal Police he joined the KLA to help the Kosovo people.


ACTOR’S VOICE, HICKS’ AUSTRALIAN FEDERAL POLICE INTERVIEW: I knew the Serbs, Milosevic, was oppressing the Kosovan people and basically the Western world came to help them.


DEBBIE WHITMONT: The American military investigators put it this way: (Reads) “Hicks felt the suffering in his heart and wanted to use his knowledge of overseas travel and other skills to assist in any way he could.” Two years later, David Hicks would be locked up in the world’s most notorious prison.


STEPHEN KENNY, HICKS’ FORMER SOLICITOR, 8 DECEMBER 2003: The conditions are of great concern. Firstly, he has been essentially in a cage almost for two years.


DEBBIE WHITMONT: It would be another two years until his first visit from a lawyer.


STEPHEN KENNY: We were sitting at a table and I realised that he was, you know, shackled to the floor so that he couldn’t stand up. And, ah…


DEBBIE WHITMONT: Shackled how?


STEPHEN KENNY: He had…leg cuffs and a chain around his waist, you know, chained to the floor, onto a bolt in the floor.


DEBBIE WHITMONT: In July 2003, the US announced that Hicks and five others would be the first Guantanamo detainees to be tried as terrorists. Immediately all six, including Hicks, were put in solitary confinement. Two were English. One of them was Moazzam Begg.



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