The legal team for David Hicks, the Australian tried and convicted for terrorism offences in Guantánamo Bay, has lodged an appeal in US courts to have his conviction quashed.
Court documents, submitted to the US court of military commission review and seen by Guardian Australia, base the appeal on several factors. They argue that the charge to which Hicks pleaded guilty – providing material support for terrorism – was not an offence at the time and was out of the jurisdiction of the military commission which convicted him; that Hicks was “erroneously advised” by the court and counsel that the act was a war crime; and that his guilty plea was “plainly involuntary” given he was subject to torture and abuse while detained.
Hicks pleaded guilty in March 2007. He had been caught by northern alliance forces in Afghanistan in 2001 and detained in Guantánamo Bay prison. In May 2007 he was sentenced to seven years – all but nine months of which was suspended. About two months after being sentenced, Hicks was transferred to Australia where he served his sentence until 29 December of that year. He remains under the suspended sentence.
The appeal claims that Hicks pleaded guilty to providing material support for terrorism “in a desperate attempt to secure his release from Guantánamo after more than five years of detention.
“Mr Hicks is entitled to relief because his guilty plea was the unlawful product of the coercive conditions at Guantánamo Bay,” reads the document, listing the various forms of abuse Hicks was subjected to, including beatings, sexual assault, injections, sleep deprivation and psychological attack.
“A guilty plea induced by the holy trinity of violence, threats, and improper promises can not be allowed to stand.”
The defence counsel also argue that the offence for which Hicks was convicted “is not, and was not at the time of Mr Hicks’ alleged offense, a war crime,” based on a subsequent ruling on an “indistinguishable” similar case – that of Osama Bin Laden’s driver, Salim Hamdan, whose conviction for material support for terrorism was quashed in October 2012.
“The court vacated the conviction of former Guantánamo detainee Salim Hamdan for material support on the grounds that the military commissions act of 2006 … did not authorise military commissions to punish people retroactively for conduct that was not a war crime at the time of the offence,” reads the document.
“Because the conduct and conviction in this case are indistinguishable from that in Hamdan II, Mr Hicks’s conviction must be vacated.”
At the time of Hicks’ conviction in 2007, a group of high-profile legal experts wrote to the Australian government and advised them that the charge was not a war crime.
The case also contends that the court and counsel “erroneously advised” Hicks that the offence he was admitting was a war crime.
“The law is abundantly clear that any plea which proceeds from such a condition of ignorance is not voluntarily or intelligently given, and is therefore invalid.”
Hicks and his legal team were publicly voicing the prospect of lodging an appeal as early as October last year. In September 2012, the defence counsel for Hicks requested an unredacted copy of the record of trial in order to gain all information possible relating to Hicks’ rights to appeal, but were refused by the convening authority on more than one occasion. A request to travel to Australia to advise Hicks of the same was also refused.
“The convening authority’s persistent refusal to forward the record only delays the appeal and burdens the court,” reads a footnote to the appeal document.
Last year, the director of public prosecutions dropped its case against Hicks, arguing that profits of his book about his time in Guantánamo were proceeds of crime. No reason was given.