Australian news sources have announced that the Commonwealth Director of Public Prosecutions (CDPP) have initiated legal actions to seize the royalties former Guantanamo detainee David Hicks has earned from the publication of his autobiography, Guantanamo: My Journey. The book was published last year by Random House Australia, and has reportedly sold upwards of 30,000 copies. No U.S. publisher has bought rights to the book, and it remains unavailable through U.S. booksellers.

Terry Hicks, David’s father, called the move “absolutely disgusting,” and according to my sources, the Hicks family is said to be “devastated.”

According to a report by The Australian, under Australia’s Commonwealth Proceeds of Crime Act “a person cannot profit from proceeds derived from the commercial exploitation of their criminal notoriety arising from a foreign indictable offence.” The “offense” in this case is Hicks’ guilty plea before the spurious U.S. military commissions to supposedly “providing material support to terrorism.”

But as Australian barrister Ben Saul, who has advised Hicks in various matters, noted last February, responding to earlier propaganda beseeching  the Australian government to confiscate Hicks’ book earnings:

Yet, it is almost certain that such offence did not exist in law at the time of Hicks’ conduct. As a result, his conviction is retrospective and contrary to international law. The conviction for that bogus offence also resulted from a procedurally unfair trial, and probably torture.

Saul also commented in the same article on the irony that calls have gone out to confiscate any profits David Hicks might receive from his book, while former Australian Prime Minister John Howard is free to profit from his own memoir, recently published, Lazarus Rising. Howard, Saul notes “has evaded comparable scrutiny, principally because his suspected crime – the illegal, aggressive invasion of Iraq – is not covered by Australia’s proceeds of crime laws.”

Indeed, not only was Howard guilty of using his executive powers to commit Australian forces to the U.S.-organized 2003 invasion of Iraq, he was also heavily involved in decisions made around the incarceration of Hicks himself, as the former Guantanamo detainee and torture victim describes in his book (which again, I stress, is unavailable through routine retail outlets in the United States). It was only through the intervention of Dick Cheney, and his hand-picked military commissions Convening Authority Susan Crawford, on behalf of U.S. authorities desperate at the time to conclude at least one of their military commissions prosecutions, that a plea deal was ever struck.

Interestingly, the plea deal allowed an Alford plea, which meant Hicks could plea guilty to the single “material support” charge, while never formally agreeing to admit to guilt in his actions. In his book, Hicks clearly states that he pleaded guilty in order to get out of Guantanamo, and that up to that time, he had been in fact considering suicide.

Susan Crawford, after negotiating with my lawyers and saying no to serving less time, agreed to allow me to enter an Alford Plea if I chose, as an incentive to cooperate. Under this US legislation, a person can plead guilty without admitting to the act they are accused of. In other words, contrary to media reports, I did not ‘admit’ or ‘confess’ to providing material support to terrorism; I pleaded guilty without accepting guilt to the charge so I could return home. To plead guilty was really saying that the system was unfair and I could never win, not that I ever provided support to a terrorist organisation.

I had two choices: take the Alford Plea and face all ramifications and consequences that would follow, or return to my cell, resign myself to hopelessness and follow through with my suicide plan.

The plea bargain also included other onerous conditions, including a one-year gag order, an agreement he would assign all monies from his story to the Australian government, a statement that he was not coerced into accepting the plea bargain, and an agreement to cooperate with U.S. and Australian security officials for the rest of his life, among other ridiculous stipulations.

It is difficult to know why  the CDPP has decided now to officially go after Hicks’ royalties. One wonders if it had anything to do with the warm reception and ovation he received when he spoke to “a packed audience of 1000 people at the Sydney Writers’ Festival” last May. At the same event, Hicks “also warned that Julian Assange could face a similar abandonment by the Australian government, if the US government get their hands on him.”

Certainly the Australian government has not taken kindly to the fact that David has chosen not to remain silent about the abuses he endured, or the criminal activities that took place at Guantanamo. Last year, he submitted an affidavit (PDF) to the United Nations Human Rights Committee, detailing numerous breaches of the International Covenant on Civil and Political Rights relevant to his case.

One of the items concerns the charges of “material support”:

In 2007, a United States (US) military commission at Guantanamo Bay, Cuba, convicted Mr Hicks of the offence of ‘providing material support for terrorism’ under section 950v(25) of the Military Commission Act 2006 (USA) (‘MCA’) (Annexure C). That offence was unknown to international law or US domestic law at the time of Mr Hicks’ alleged conduct and Mr Hicks was thus subject to retroactive criminal punishment, contrary to article 15 of the ICCPR. By entering into a Prisoner Transfer Arrangement (Annexure Q) with the US, to enforce Mr Hicks’ sentence of imprisonment in an Australian prison, and by enacting related domestic legislation, Australia assumed direct responsibility for the unlawful, retrospective criminal punishment of Mr Hicks. Such conduct was not justifiable and reasonable alternatives to it were available in order to achieve the humanitarian purpose of securing Mr Hicks’ release from Guantanamo Bay.

Nevertheless, according to The Australian article, University of New South Wales law professor George Williams thought the CDPP had “a strong case.” “But that is subject to a court giving weight and recognizing the validity of Hicks’s plea and the conviction. This may well be an opportunity for David Hicks to open up questions about those matters,” Professor Williams said.

Torture and Medical Experimentation

Why would a man plead guilty to something to which he was innocent? Why was such a plea — or suicide — preferable to continued detention in the U.S. Cuban island prison?

As David Hicks outlined in his book, he was subjected to numerous kinds of torture, in addition to probable medical experiments. Last February, investigative journalist Jason Leopold published at Truthout the first in-depth interview with Hicks. In his introduction, Leopold summarized the torture Hicks endured at the hands of Guantanamo authorities:

Hicks was brutally tortured. Psychologically and physically for four years, maybe longer. He was injected in the back of his neck with unknown drugs. He was sodomized with a foreign object. He spent nearly a year in solitary confinement. He was beaten once for ten hours. He was threatened with death. He was placed in painful stress positions. He was subjected to sleep deprivation. He was exposed to extremely cold temperatures, loud music and strobe lights designed to disorient his senses. He was interrogated on a near daily basis.

In Guantanamo: My Journey, Hicks described one of the medical experiments:

I was given an injection. Within an hour or so I couldn’t help but huddle in a corner of the cage. Physically, I felt comfortable, even though it was an odd thing for me to do. In the back of my mind I knew it was strange, but as long as I stayed in that corner I had no real thoughts at all. When I tried to move from that position, whether to eat or go to the toilet, I became extremely agitated and nervous. I would quickly resume my huddled position. Getting the slight shakes was another side effect of this medication. Some time on the second day I began to feel normal again and came out of the corner. I knew I had acted unusually but, because most of that period was a blank in my mind, I could not decide if the injection was responsible. I think it was the day after, when I began to feel normal again, that I was given another injection. I was scared and pleaded for them not to, but I was threatened with an IRFing if I did not cooperate. [The Immediate Reaction Force (IRF) was a riot squad mobilized to brutalize Guantanamo inmates.] A majority of detainees were being IRFed by then for refusing medication, so I just surrendered my arm, thinking that the needle might snap off in my shoulder if they jabbed me during a beating. I was quickly aware of the results. I went straight to the corner again and curled up but, unlike last time, I was under no illusions about what was happening or why. I tried to fight this chemical reaction but was powerless. My mind was clear and alert, and I could identify my behaviour as abnormal, but my body would not listen to my mind. I had no control and remained in the corner, despite wanting to move. This time around the experience was very distressing. All I could do was wait for the effects of the medication to wear off a full day later.

Once again it was the ICRC [International Committee of the Red Cross] that saved us. This period of forced injections and pills coincided with another visit from the only group of people on that island who did not wish us harm: the ICRC. Before I was given a third injection, MPs came and escorted me to an interrogation building, where I had a private interview with an ICRC employee. I pleaded with him to do something about these medical experiments. He told me that nearly every detainee he had seen so far had reported the same program and its effects. Almost instantly after that interview the injections and tablets were stopped, and I did not have to endure another injection. Instead of nearly daily doses, it went back to the normal – at least one injection every two months, including having blood samples taken.

In the United States, outrageously there has been next to no interest in pursuing charges of medical experimentation upon detainees held by the United States. Similar stories of such experiments have been given by a number of released detainees. Additionally,  Jason Leopold and I have published a number of articles about the abusive administration of an unprecedented mass administration of a controversial antimalarial drug, melfoquine, known for serious neuropsychiatric effects, on all Guantanamo detainees as part of their initial in-processing. (See here, here, and here.)

A FOIA of an Inspector General report on drugging of detainees has been in process for this reporter for nearly a year, with such delay belying claims of “transparency” and prompt Freedom of Information response by the Obama Administration.

Clearly, the attempts to seize royalties from David Hicks is part of an attempt to impugn his work, and to punish or isolate him for truth-telling. Such bullying can only be stopped by international and Australian protest.

Update: The Justice Campaign, an Australian human rights, anti-torture organization formed largely to help publicize the David Hicks case has released a statement on the CDPP legal actions.

The Justice Campaign (TJC) is appalled at the news that the Australian Government has moved to recover the proceeds of David Hicks’ book, Guantanamo: My Journey.

TJC patron, the Hon. John Dowd said today “David Hicks has not been convicted of a crime in Australia. He has not been convicted of an offence under US law. There is no basis for removing any profits from the sale of his book.” Justice Dowd said.

“The Military Commissions Charges were invalid under US law and he was coerced.”

TJC spokesperson, Stephen Kenny said today “this is a blatant move to shift the focus of the Australian government’s responsibility to thoroughly and openly investigate torture allegations….

The Justice Campaign remains committed in calling for an investigation into David’s credible allegations of torture and the political interference in his eventual plea deal.

(Note: differences in spelling of some words, i.e. between U.S. and Australian spellings, has been left intact in this article, when Australian spellings were included in quoted material.)

Jeff Kaye

Jeff Kaye

Jeffrey Kaye is a retired psychologist who has worked professionally with torture victims and asylum applicants. Active in the anti-torture movement since 2006, he has his own blog, Invictus, previously wrote regularly for Firedoglake’s The Dissenter, as well as at The Guardian, Truthout, Alternet, and The Public Record. He is the author of Cover-Up at Guantanamo, a new book examining declassified files on treatment of prisoners at the Guantanamo detention camp.