It’s a big win. Of course, there’ll always be those who, regardless of any legal finding, will see David Hicks as a terrorist, or a terrorist sympathiser, or the Australian who travelled to Pakistan and then Afghanistan to train with terrorist organisations.
But according to the findings of the US Court of Military Commission Review, technically Hicks is not a terrorist.
It’s taken the US justice system a long time to admit that what he was charged with - providing material support to terrorism - was not viable in law. It may take some in Australia even longer.
The Hicks story, to be sure, is not that of an 'innocent abroad'.
His youthful adventures led him to fight with the Kosovo Liberation Army, a militant group fighting the Serbs during the Kosovo War. It saw him convert to Islam to become Muhammed Dawood and head off to Pakistan to train with a fundamentalist group, then not on any proscribed list of terror organisations.
When the deadly Lashkar-e-Taiba, with links to Al Qaeda, sent Hicks to Afghanistan for training, he boasted in letters home that he’d met Osama Bin Laden.
Hicks says when he returned to Pakistan he intended to sort out his return to Australia. But in the wake of 9/11, the United States began its offensive in Afghanistan where David Hicks had returned; he says to collect 'personal effects'. He was apprehended by the US backed Northern Alliance and sent to Guantanamo Bay.
For five years, Hicks says he was psychologically and physically tortured.
Eventually, a Military Commission charged him with providing material support to terrorism. This was after a first batch of charges was vacated and the original Military Commission set up to deal with the Guantanamo detainees deemed unconstitutional.
Hicks pleaded guilty - to the charge now declared unviable - whilst maintaining his innocence, in order to be returned to Australia.
But it was what was occurring behind the scenes before he was charged that makes the Hicks story so unseemly and problematic for the Abbott government.
The issue the government would prefer to go away is whether then Prime Minister John Howard, in the lead up to the 2007 election, encouraged the US to charge Hicks to defuse the growing concerns and protests in Australia at Hick’s continued incarceration without charge.
In doing so, an intertwined issue is whether it knowingly helped the US government achieve a desperately needed, face-saving prosecution of an Australian who was tortured.
Hicks’ lawyer Steven Kenny says the Australian government knew his client had committed no offence but pressured its allies to charge him nonetheless.
Evidence discovered by Hick’s wife, human rights activist Dr. Aloysia Brooks, supports his proposition. In one diplomatic cable she uncovered Michael Owens, the charge d’affaires at the US Embassy in Canberra, wrote to the State Department in Washington that ”In the absence of progress … there is a distinct possibility that PM Howard who must call for a national election later this year will ask the United States to release Hicks and permit his return to Australia.”
Mr Kenny argues the government knew that Hicks “wasn’t doing anything that was a breach of Australian, international or US law and that’s what this decision today confirms.”
“David went to Afghanistan, yes. David was doing military training there, yes. But it was not a crime.”
John Howard disagrees and isn’t mincing words.
“Nothing alters the fact that by his own admission Hicks trained with Al Qaeda, met Osama Bin Laden on several occasions describing him as a brother. He reveled in jihad. He is not owed an apology by any Australian government.”
Not that an apology will be forthcoming. Prime Minister Abbott has made that much clear. Hicks, he says was up “to no good”. Hicks says he neither expects nor cares about an apology. The ordeal is “now over”, though his anger is evident.
Asked what he says to those who effectively accuse him of using his torture to obfuscate the fact that he trained with a group subsequently declared a terror organisation, he accused his critics of being “supporters of torture”.
Those who criticise Hicks for choosing the wrong side should keep in mind the big picture says his lawyer Steven Kenny.
“How do we want Australian citizens treated when they are captured in what is effectively combat zones. Do we want them taken beyond the law, locked in cages, held in solitary confinement away from any judicial review, any opportunity to meet or have contact with their families?” he asks.
They ought also keep in mind that in 2007 the Australian government was apparently prepared to bargain away an Australian citizen to attempt to win an unwinnable election.
Politically convenient though it is, opposition leader Bill Shorten hit the nail on the head: "I do think that the Australian government needs to examine did they really do all they could to ensure injustice didn't occur and bring David Hicks back to Australia.”
Monica Attard is a Sydney based freelance journalist and former ABC foreign correspondent and senior broadcaster.
