Let’s start this off with a massive caveat: the treatment of David Hicks degrades us all. If we are fighting to ‘preserve our way of life’, abandoning fundamental principles of justice and dignity is surely counter-productive.
Further, while we should be concerned about the treatment of David Hicks, we oughtn’t forget that non-Australians were also subject to the same treatment.
That all being said, there is an extraordinary amount of rubbish circulating about the latest in the David Hicks saga. Very briefly, I’ll outline an argument showing that the rubbish circulating is indicative of an impoverished public dialogue about legal issues.
You might (and should) disagree with the conditions under which Hicks was convicted. He pleaded guilty in a court which has not been found invalid under US law (Guantanamo Military Commission). A conviction under the GMC is recognised by the Proceeds of Crimes Act.
What does this all mean?
Despite everybody’s best efforts, there is not a one-to-one relationship between guilty people and guilty findings. Most of us can think of cases where people were found to be guilty who were later proven innocent. It’s one of the trump cards played by abolitionists in the capital punishment debate.
But the factual inaccuracy of a conviction does not mean that the conviction is unlawful.
Here is where our public debate breaks down. When high profile lawyers state that an act of government or of a court is unlawful, what they mean to say is that, if it went before another court, they believe that the act or decision would be overruled.
But that’s not snappy enough for our media.
And that’s what is at the heart of the current Hicks debate. As much as we might be (correctly and justifiably) revolted by the treatment of Hicks, he was convicted by a court recognised by our laws against profiting from crime. If his actions breached the Act, he committed a crime.
Hicks could pursue a court case to have his conviction overturned. The effect would be that — from a legal point of view — his conviction had never occurred (though, of course, the court system can’t give him back the years of his life that he lost).
But it is neither logical nor reasonable to think that his treatment at Gitmo ipso facto means that his conviction was somehow invalid. He needs a court to decide that.
We need the media to play a role in accurately representing and analysing legal issues. Portraying the current issue as a question of the legitimacy of his conviction, rather than as a question of whether he broke proceeds of crime laws, does little to progress public knowledge of the law.