NEWS YOU WON'T FIND ON CNN

The Case Against David Hicks

Reporter: Debbie Whitmont

Broadcast: 27/10/2005 ABC Australia

"The Australians, the Americans, they all know – this is a façade, this is a farce"... David Hicks’ US lawyer Josh Dratel.

Transcript

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.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: So the cage was about 8ft by 6ft. There were no windows, there was no natural light. And the only time outside of a cell was depending on how long we'd been there, but initially it was 15 minutes a week.

MAJOR MICHAEL (DAN) MORI, HICKS' MILITARY ATTORNEY: Why was David held without access to sunlight for eight months? Why was he held in isolation for 16 months? Um, yeah, those are policy decisions.

DEBBIE WHITMONT: That policy was soon very clear. Though David Hicks and the others weren't told what the charges were, the Defense Department appointed them lawyers for 'pre-trial negotiations' and 'discussing a plea agreement'.

MAJOR MICHAEL (DAN) MORI, HICKS' MILITARY ATTORNEY: Well, the letter that appointed me had that sort of condition, that the access to the client would only be guaranteed if for pre-trial negotiations for a guilty plea.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: They thought David would plead guilty and be an easy case for them to start the commissions and they could try to justify the commissions by saying "Here we have someone who's pleaded guilty".

DEBBIE WHITMONT: Clive Stafford Smith acted for Moazzam Begg.

CLIVE STAFFORD SMITH, MOAZZAM BEGG'S LAWYER: So, you know, the idea was that these people were going to stand up and plead guilty in English, saying how wicked they were and there was an election coming up.

DEBBIE WHITMONT: But the lawyers took no notice of the condition. And no-one agreed to plead guilty. After 16 months, David Hicks was moved out of solitary confinement. Moazzam Begg caught his first glimpse of him.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: Hicks was obviously and clearly recognisable just from how he spoke, his silly Australian accent.

DEBBIE WHITMONT: Over the next few months, in nearby cells, the two spoke often.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: He struck me as somebody that was... quite naive in some ways, in relation to a lot of the world. I think his background clearly indicated to me that he wasn't particularly privileged or particularly well educated. But I think he also wanted to learn a lot more about the world that he was part of.

DEBBIE WHITMONT: It was only when he got back from the Balkans and was reading a Middle East travel guide that David Hicks became interested in Islam. As he told the Australian Federal Police, he went to a local mosque to learn more.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: I had to learn once and for all what is Islam and speak to a Muslim to find out what is this life he's living, what is his belief and thoughts.

DEBBIE WHITMONT: By the time Hicks next left Australia, he'd converted to Islam and he had a contact for a group of Muslim missionaries he'd been told he could stay with in Pakistan. Whenever he could, Hicks wrote long letters home.

ACTOR'S VOICE, HICKS' LETTER TO FAMILY: Hello, family. How are you? I'm fine. I'll give you a rundown on where I've been, what I've done and learned. Peshawar is three hours from the Afghanistan border but it is not in the mountains. It's a lot bigger than Adelaide. Pakistan produces all the fruits and vegies I've seen in Adelaide plus so many more.

DEBBIE WHITMONT: Before long, Hicks made contact with another group - Lashkar e Tayyiba - or LET. LET is now banned as a terrorist group. But it wasn't then.

MICHAEL KREPON, POLITICS DEPT, UNIVERSITY OF VIRGINIA: If you look at the State Department reports prior to 2001, um, you don't find mention of the Lashkar e Tayyiba.

DEBBIE WHITMONT: At the time, LET was supplying recruits for Pakistan's ongoing war in Kashmir and it was closely linked to the Pakistani army.

MICHAEL KREPON, POLITICS DEPT, UNIVERSITY OF VIRGINIA: I'd say it was an adjunct. In some ways Lashkar e Tayyiba became a mechanism to contract out, um, Pakistan's Kashmir policy.

DEBBIE WHITMONT: Hicks would spend three months in an LET training camp. And he went to the line of control with the Pakistani army. But he got bored and left to study Arabic and the Koran. After about a year away he wrote home:

ACTOR'S VOICE, HICKS' LETTER TO FAMILY: My time in Pakistan so far has been unbelievable. I have seen so many things and places. I've learned so much. My best adventure yet. Action packed. But what I am doing now is of the most importance, a major obligation to Islam - knowledge.

DEBBIE WHITMONT: Hicks also wrote about moving to Africa or coming home. But he was afraid of bad influences in Adelaide. A few months later a fellow student, a Saudi, asked Hicks to travel with him to the training camps in Afghanistan.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: I think Hicks, from talking to him, he really believes in that ideal of manhood and chivalry and things like that to help the oppressed and defend against what they are suffering. I think that's what propelled him into it. That and a sense of adventurism.

DEBBIE WHITMONT: Three years later, for an Australian documentary, David Hicks's father, Terry Hicks, would follow his son's footsteps to an Afghan training camp now destroyed by the Americans. This camp and others like it were built up in the 1980s to train Muslims to fight the Russian occupation.

MICHAEL KREPON, POLITICS DEPT, UNIVERSITY OF VIRGINIA: The United States and Saudi Arabia were the two largest bankrollers of the jihad as it was applied against the Soviet presence in Afghanistan. The camps were necessary for training purposes. It was something that the United States did with its eyes wide open.

DEBBIE WHITMONT: Once the Russians had been defeated, the Pakistani-backed Taliban and al-Qaeda took over the camps. From the 1990s, thousands of Muslims travelled to Afghanistan for training like this. David Hicks was there for about eight months in 2001. In his first two courses - basic training and guerrilla tactics - there were two Englishmen and several Filipinos. At one point, Hicks met a senior figure in al-Qaeda - Mohammed Atef or Abu Hafs. He told the Australian Federal Police -

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: He didn't seem to know anything about me. He asked what training I'd taken so far. What I'd been in and how long I'd been there. He asked me what do I know about Israel. I don't know anything about Israel. Then he said, "Do Australians go to Israel?" I said, "Yes, they go to Israel. There's tourists, tourist packages and stuff."

DEBBIE WHITMONT: Hicks did another course - urban warfare - but he said he found it difficult to follow.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: David Hicks does not speak Arabic of any meaningful understanding. How would he possibly be a high-ranking member of Al Qaeda?

DEBBIE WHITMONT: Hick's final course - intelligence gathering - included at least one Englishman.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: I took the course because it was in Kabul. If the course was anywhere else, I wouldn't have taken it because my next destination was Kabul. I wanted to see the city before I left Afghanistan and go to the front line.

DEBBIE WHITMONT: Hicks wrote long and what would turn out to be incriminating letters home, praising the Taliban and denouncing the West and what he called "its Jewish propaganda". He knew his father disagreed.

ACTOR'S VOICE, HICKS' LETTER TO FAMILY: They don't want Muslims coming here, so they make all their propaganda by way of the media. "Taliban do this, Taliban do that." You once told me that I listen to anything that I hear. But now who's talking? I don't believe everything I hear. I've always looked at the other side of the coin. That's how I got to where I am. Islam is the truth.

DEBBIE WHITMONT: Hicks wrote home that he'd met Osama bin Laden 20 times. But he later told investigators he'd exaggerated. He'd seen bin Laden about eight times and spoken to him once.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: You've got...at times, I've been excited, maybe tried to be a big shot, right? So try and explain all the letters. You imagine someone like me coming from Adelaide and stepping into this world. Spies, politics, wars. You know what I mean. Like, it's too big to handle. So a lot of this, like, other stuff I just read here, I say it's a load of crap.

DEBBIE WHITMONT: The AFP pressed Hicks about who he thought he was training to fight against.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: Against anyone suppressing Muslims, you know? You've got...you've got people from so many different organisations training...taking training from Al Qaeda, but they come from different parts of the world. So the organisation's full of all these people doing these things for these types. Different intentions.

DEBBIE WHITMONT: The Americans summarised it this way - "Hicks is a fighter for a cause, including the people of Islam, and explained it did not matter who was the oppressor if he feels countries are utilising their positions of power to destroy a way of life or the inherent rights of the underprivileged."

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: I think that was the main, underlying issue for David Hicks is that he didn't realise what wrong he had done, who he had harmed. He couldn't understand what he'd done that was so terrible that had brought him forth, in the eyes of the world, or his country, at least, to be singled out for so much animosity.

DEBBIE WHITMONT: On September the 11th, 2001, Hicks saw the al-Qaeda attacks on TV. He was in Pakistan. He told the AFP...

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: It's not Islam, is it? It's like the opposite of what I was...wanted to do. Meant to help the people, stop oppression. And they did the opposite.

DEBBIE WHITMONT: The main charge against David Hicks is that he conspired with Osama bin Laden and others to commit terrorism.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: There's no allegation that he's part of September 11th but they say he's part of al-Qaeda conspiracy, whatever that means. They have to prove an agreement. They have to prove that David agreed to commit unlawful acts. There's no evidence of that. They won't have any evidence of that.

DEBBIE WHITMONT: Josh Dratel is David Hicks's American civilian lawyer. He specialises in terrorism cases.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: I think they know they don't have any evidence of that but they're gonna rely on the prejudice and the...and the sort of, the drama of al-Qaeda, September 11th, Afghanistan.

JOHN HOWARD, 16 JULY 2005: Let us remember the allegation about Hicks is a very serious allegation. It is an allegation that he trained with al-Qaeda. It's an allegation which includes, allegations including the specific allegation that he was in Pakistan on the 11th of September, 2001 and in the wake of those events, rejoined his colleagues. So we are dealing with serious allegations.

DEBBIE WHITMONT: Hicks says that after September 11, he wanted to come back to Australia. But instead, he did something he now bitterly regrets. We went back to Afghanistan. His bags - with his birth certificate and, especially, some clothes he'd bought on his travels and wanted to keep - were back at the al-Qaeda guesthouse in Kandahar. He told the AFP...

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: I'm spewing that I went back. I mean, I could have left my stuff behind if I knew what was gonna happen. I could have stayed behind in Pakistan, not gone back. But I would have lost all my Islam. It might sound stupid, I've got lots of nice Islamic clothes I'd been saving. There's lots of money in them, with stuff I could have had home.

DEBBIE WHITMONT: After conspiracy, the other two charges against David Hicks are that he aided the enemy and tried to kill coalition forces.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: There's never been a claim that David actually was engaged in combat with any US or coalition forces.

DEBBIE WHITMONT: Just after Hicks returned to Afghanistan, the border closed. Foreigners were being arrested as spies. After a few weeks, an al-Qaeda organiser threw Hicks and three other foreigners out of the guesthouse.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: He came up to us and said, "Look, you have to do something now. We're gonna kick you out in the street. Then you're on your own and Afghanistan's not a place to be without money and not knowing." I was too afraid, like, to try and travel off by myself to the border when it's closed.

DEBBIE WHITMONT: Hicks was given a gun and sent to sit in some trenches.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: I sat there, did nothing. There was no defending, no fighting. There was nothing happening. I was there for about a week. We were under Taliban, basically. Everyone there, including al-Qaeda people themselves, were under Taliban.

DEBBIE WHITMONT: When the US air strikes started, he was told to guard a tank.

ACTOR'S VOICE, HICKS' AUSTRALIAN FEDERAL POLICE INTERVIEW: Basically, it was just somewhere to shove us. I think we were like a burden, maybe. But our job was just to watch the tank. I didn't see myself as assisting them, the al-Qaeda. Basically, I was stuck where I was. There wasn't much I could do about it.

DEBBIE WHITMONT: After the fall of the Taliban stronghold, Mazar-e-Sharif, Hicks says he went to the frontline. But he says he never fired a shot. Within hours of him getting there, the front collapsed. The few hundred foreign fighters there ran away, chased by the Northern Alliance. About two weeks later, Hicks was picked up at a taxi station, trying to leave the country. The Northern Alliance sold him to the Americans for $1,000. In Britain, right from the start, Guantanamo Bay and the American military commissions provoked a storm of protest. When the US released its first photos of detainees, the British media labelled them 'torture'. The English Court of Appeal called Guantanamo "an illegal black hole." And described detention there as "arbitrary" and "objectionable." By the time President Bush visited London in 2003, the British Prime Minister was under pressure.

GEORGE W. BUSH, 17 JULY 2003: The only thing that I know for certain is that these are bad people. And we look forward to working closely with the Blair Government to deal with the issue.

DEBBIE WHITMONT: 200 British MPs across all parties demanded that the nine British detainees at Guantanamo be sent home. Britain's highest ranking lawyer, the Attorney-General Lord Goldsmith took the Americans on in Washington.

LORD GOLDSMITH, UK ATTORNEY GENERAL: We had some good, intensive negotiations. There were some concessions or clarifications.

DEBBIE WHITMONT: The Australian Government claimed any deals won by the British would also apply to Australia. But it didn't work that way. By mid 2004, David Hicks had been charged and most of the Britons were back home. Lord Goldsmith had come to the conclusion that no amount of negotiation could make the military commissions fair or independent.

LORD GOLDSMITH, UK ATTORNEY GENERAL: I made clear our position that we wanted our nine citizens either to be tried in accordance with standards we regarded as fair standards or to be returned to us.

DEBBIE WHITMONT: Lord Goldsmith told Four Corners there were certain rights he believed couldn't be compromised. The right not to be tortured and the right to have a fair trial.

LORD GOLDSMITH, UK ATTORNEY GENERAL: At the end of the day, you make a judgement on the basis of all of the elements to see whether or not there was sufficient guarantees for fair trials. Sadly, at the end of the day, I wasn't satisfied that there were.

CLIVE STAFFORD SMITH, MOAZZAM BEGG'S LAWYER: The British Government, to their credit, stood up for their principles. And they said, "Look, we do believe in the rule of law within certain limitations. And we're just not willing to co-operate with the US if you're gonna dissolve all these legal principles we've had for centuries."

DEBBIE WHITMONT: Unlike the English, the Australian Government was satisfied with some procedural changes.

JOHN HOWARD, 19 JULY 2005: Australia is satisfied that the military commission process in relation to David Hicks, as he is the one Australian held in Guantanamo Bay, will provide a proper measure of justice.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: The only reason why David Hicks is there - and I think this needs to be absolutely clear - is because the Australian Government has agreed to the process that he's part of.

DEBBIE WHITMONT: Is it a fair comment to say that some of those people who've been released had very similar claims made against them?

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: Yes, in fact they were worse. Most of them, the claims were worse.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: Hicks is not a bitter person. I don't, he didn't strike me as somebody who is bitter, but he's very upset about the stance of his government in relation to how he is treated.

JOHN HOWARD, 4 JUNE 2004: If Hicks and Habib were to be returned to Australia, there is no, on my legal advice there's no... crime under Australian law with which they could be charged.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: Probably one of the worst things for him would've been Mamdouh Habib's release and his remaining, remaining in Guantanamo. I don't know how he would have dealt with that.

DEBBIE WHITMONT: In January this year, the only other Australian at Guantanamo - Mamdouh Habib - was suddenly released. Up until then, the Australian Government had maintained that both Hicks and Habib had been treated humanely.

LT CDR CHARLES SWIFT, MILITARY ATTORNEY: I was in line to represent Mr Habib. I had been contacted, and he was a day from having a defence counsel and going to a military commission. Ah, and the same assurances were being made, apparently, regarding statements that had been obtained in Egypt while he was up to his neck in water.

DEBBIE WHITMONT: It was revealed that Habib had been taken to Egypt and tortured - a process known as 'rendition'.

CLIVE STAFFORD SMITH, MOAZZAM BEGG'S LAWYER: Mamdouh Habib was not just abused. Mamdouh Habib had electrodes put on him, and there, that was going to be such a PR catastrophe for the whole military commission process, they couldn't possibly afford to do that.

DEBBIE WHITMONT: Moazzam Begg and the rest of the Englishmen were released at the same time. Begg had spent two years in Guantanamo, and one year held by the Americans in solitary confinement in Afghanistan.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: I was beaten, tortured and threatened with being sent to, um, to Egypt for further torture where they use electric shocks and, and rape and so forth, if I didn't comply with what they said.

DEBBIE WHITMONT: In Guantanamo, Begg wrote dozens of letters describing his torture. One of them somehow slipped out uncensored. His lawyers released it publicly.

CLIVE STAFFORD SMITH, MOAZZAM BEGG'S LAWYER: I mean, they said Moazzam Begg was the worst terrorist in the world, and they set him free when we demonstrated how he'd been abused.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE READS FORM LETTER: I have been menaced and threatened directly and indirectly with firearms...

DEBBIE WHITMONT: Moazzam Begg told Four Corners that he and Hicks often pondered on why Hicks - out of hundreds at Guantanamo - was one of the very first to be charged and sent to trial.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: I firmly believe why David Hicks has been singled out in this particular manner, ah, and was the first person to be put through this process, is because he's the token white man.

JOSH DRATEL, HICKS'CIVILIAN ATTORNEY: He... allows for the process to look even-handed in a cultural and ethnic sense. He's a Caucasian, he's a westerner. This is not about the Middle East. This is not about, you know, people of colour. This is about dangerous people. So, they can say that and... and also I think that he's English speaking, and they would like to if they, if they could... turn him against others, and have a witness, that would be to their advantage.

DEBBIE WHITMONT: How many other Caucasian Guantanamo detainees are there now, to your knowledge?

JOSH DRATEL, HICKS'CIVILIAN ATTORNEY: Zero.

STEPHEN KENNY, HICKS' FORMER SOLICITOR, 13 MAY 2004: I can now say that David Hicks has been treated in a manner which I consider to be abusive, a serious violation of his human rights, and which constitutes a criminal offence in international law.

DEBBIE WHITMONT: When the allegation emerged over a year ago that David Hicks had been abused by American troops, the Prime Minister said the complaint's timing - just after the Abu Ghraib scandal - was suspicious.

JOHN HOWARD, 20 MAY 2004: The man you refer to is a Taliban supporter. I find it strange that these allegations of abuse against Mr Hicks and Mr Habib have arisen only since the prisoner abuse scandal erupted.

DEBBIE WHITMONT: But according to his lawyers, David Hicks's claims of abuse had been made much earlier. They were in fact the first thing Hicks had told them, but the US Defense Department had banned the lawyers from making any details public.

STEPHEN KENNY, HICKS' FORMER SOLICITOR, 13 MAY 2004: These abuses were not simply the excesses of individual guards. They were carefully orchestrated and organised at high levels of the US command structure.

DEBBIE WHITMONT: Now, for the first time, Four Corners can reveal those details. Soon after he was taken into custody, Hicks was held with a small group of detainees on a US warship in the Arabian Sea - the USS 'Peleliu'. Martin Mubanga - an Englishman - knew David Hicks in Guantanamo. Hicks told him about being taken from the warship by helicopter to an unidentified land base - most likely in Pakistan or Afghanistan.

MARTIN MUBANGA, FORMER GUANTANAMO DETAINEE: He was thrown onto the chopper. His hands were in shackles and chains. And basically they was taken to, by helicopter, to a place. They was blindfolded, and there they was beaten and spat upon, and he was abused and assaulted. Things like, "You Aussie kangaroo", and things like that. Yeah, while they were beating and spitting on him and things like that. So, he was called a traitor. And then basically they brought him back blindfolded, so he never saw his...his attackers or his abusers, basically. And then he was brought back to the ship.

DEBBIE WHITMONT: When Terry Hicks went to Guantanamo, he says those beatings were the very first thing his son told him about.

TERRY HICKS: David was full on, he was agitated, he was stressed. All he wanted to do is, he just told us, "Listen. Don't say anything, I'll get it out as quick as I can." He had two 10-hour beatings from the Americans. And I said to David, "Sure they were Americans?" - 'cause he said he had a bag over his head - and he said, "Oh look," he said, "I know their accents, they were definitely American." Some pretty horrific things that were done to him.

DEBBIE WHITMONT: Are they... sexually embarrassing things?

TERRY HICKS: Yes.

DEBBIE WHITMONT: These sexually-related incidents... does this involve Americans?

TERRY HICKS: Yes.

DEBBIE WHITMONT: David Hicks told his father the Americans gave him injections and then penetrated him anally with various objects. Why does he believe he was taken off a ship by helicopter?

TERRY HICKS: Well, I mean, if they've taken him off... They're taking him off an American ship. So, I suppose if anything happens, the Americans would say, "Well, it didn't happen on our soil."

DEBBIE WHITMONT: Being taken off a warship, it's like a mini-rendition if you like, do you believe that did happen?

CLIVE STAFFORD SMITH, MOAZZAM BEGG'S LAWYER: Being taken off a warship is not a mini-rendition, it's a rendition, period. There were all sorts of renditions. There were American renditions to themselves from Pakistan to Afghanistan to torture people, from American ships to Afghanistan to torture people.

DEBBIE WHITMONT: Hicks's lawyers believe it's unlikely detainees would be helicoptered off a warship without official authorisation.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: Authorised - someone would take them on a helicopter - they didn't think they were going to take them to the zoo. I mean, obviously when they take detainees off a ship or round them up and bring them somewhere else, someone's got to say 'OK', and they have to know why.

DEBBIE WHITMONT: David Hicks's lawyers told Four Corners they have witnesses they're not revealing at this point, and that US authorities have photographic evidence.

MAJOR MICHAEL (DAN) MORI, HICKS' MILITARY ATTORNEY: I can't comment on the specifics. I'd say it's an area that I'm investigating, and that I've already found some evidence and witnesses that support that occurring.

DEBBIE WHITMONT: The Australian Government says that David Hicks's claims of abuse have been thoroughly investigated.

JOHN HOWARD, 16 JULY 2005: I can inform you - and we'll provide you with a letter later - that we have received written advice from the Defense Department that after a very thorough investigation of the allegations of Hicks and Habib about mistreatments whilst they were in American custody, no evidence has been found to support those allegations.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: There is simply not a legitimate effort by the United States Government or the Australian Government to get to the bottom of the abuse, because the bottom is really the top, and that's the problem.

DEBBIE WHITMONT: In recent months, even the heavily censored letters from Guantanamo have been drying up. There's little left to say. This letter arrived about a year ago.

ACTOR’S VOICE, HICKS' LETTER TO FAMILY: Dear Dad, I feel as though I'm teetering on the edge of losing my sanity after such a long ordeal - the last year of it being in isolation. There are a number of things the authorities could do to help to improve my living conditions, but low morale and depression seems to be the order of the day. They're also making sure that I'm disadvantaged as possible when it comes to defending myself.

DEBBIE WHITMONT: Next month - if David Hicks is tried - it will be by a system outside the courts, and run entirely by the US Defense Department.

LT CDR CHARLES SWIFT, MILITARY ATTORNEY: At its heart the problem with this military commission is it's not based in law. It is solely a system created by the President, who looks at it as his ability to decide the law, to decide who gets charged, and to ultimately decide whether they're guilty or not.

JOSH DRATEL, HICKS' CIVILIAN ATTORNEY: The evidence itself is obtained in a totally unlawful manner. And then - let's say you get beyond that, you get to the point of a... If there's a conviction, it is reviewed not by an independent judiciary, but by hand-picked cronies of the Secretary of Defense.

DEBBIE WHITMONT: The US has now released more than 240 Guantanamo detainees. Many of them were in al-Qaeda camps, or were Taliban foot soldiers just like David Hicks. Last month, even the former Taliban foreign minister was sent home after four years in detention.

MAJOR MICHAEL (DAN) MORI, HICKS' MILITARY ATTORNEY: It's disappointing that David Hicks has lost four years of his life, and he's never injured anybody. And when you look back at the war in Afghanistan and the, and the crimes that were committed - either by the Northern Alliance abuses or the Taliban abuses, or civilians that were killed by bombings - and you sit back and say, "Now we're holding people accountable for that conflict, and it's David Hicks?" It's a joke.

DEBBIE WHITMONT: Four Corners asked the US Defense Department for an interview for this program. They declined. David Hicks's trial - if it starts next month - could last well into next year. He's already spent nearly four years in detention.

MOAZZAM BEGG, FORMER GUANTANAMO DETAINEE: One of the things he said to me is, "Please, when you get out from here, please tell people that my sanity is at risk here". He used to tell me quite often that he felt like just banging his head so hard against the walls that he just ends up killing himself.

ACTOR'S VOICE, HICKS' LETTER TO FAMILY: I've reached the point where I'm highly confused and lost - overwhelmed, if you like. I suffer extreme mood swings every half hour, going from one extreme to the other. I can no longer picture what happens outside. My entire world has become this little room, and everything beyond is nothing but an echo. Love, David.


Please note: This transcript is produced by an independent transcription service. The ABC does not warrant the accuracy of the transcript.

Translate this page

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. Information Clearing House has no affiliation whatsoever with the originator of this article nor is Information Clearing House endorsed or sponsored by the originator.)