David Hicks, an Australian citizen, was ‘captured' in Afghanistan in December 2001. He was transferred to Guantanamo Bay, Cuba, where he was detained by the US Military on the basis that he was an enemy combatant.

After almost three years in isolated detention, Hicks was charged with conspiracy, attempted murder and aiding the enemy and was committed to face trial before a Military Commission established pursuant to Presidential Order. However, before the trial could proceed, the US Supreme Court found that the military commission system was unlawful.

David Hicks was once more left in detention without charge and with no prospect of release in the short or long term.

In late 2006, the military commission system was re-established by an Act of the United States Congress and in early 2007 David Hicks was again charged and committed to face trial before a newly constituted Commission.

In March 2007, over five years after his initial capture, David Hicks pleaded guilty, pursuant to a pre-trial agreement, to a single charge of "providing material support for terrorism".

In April 2007, as a result of a plea bargain where he plead guilty to providing material support to terrorism, Hicks was returned to Australia to serve the remaining nine months of his suspended seven-year sentence.

Hicks was released on 29 December 2007, but was placed under a 12 month control order.

The Law Council took a close interest in David Hicks' case and played a prominent role in bringing his plight to the attention of Australian public. Throughout his period of detention, the Law Council was highly critical of:

  • The inability of Hicks to effectively challenge the legality of his detention;

  • Hicks' treatment in detention;

  • The flawed and inherently unjust rules of procedure and evidence of the military commissions;

  • The lack of any legal foundation for the charges initially pursued against Hicks;

  • The retrospective nature of the charge eventually pursued against Hicks;

  • The acquiescence of the Australian Government in Hicks' detention without charge;

  • The acquiescence of the Australian Government in Hicks' trial before a military commission;

  • The terms of Hicks' plea agreement; and 

  • The unnecessary imposition of a control order on Hicks upon his release.

Over this period the Law Council issued more than twenty press releases, public letters to Parliament and reports, including three reports from the Law Council's Independent Observer at Hicks' trial. These materials are available below.

In early 2014, Hicks appealed against his 2007 conviction.

In an eight-page majority decision delivered on Wednesday 18 February 2015, the United States Court of Military Commission Review set aside the guilty plea and sentence, and vacated Hicks's sentence.