Is the Hicks "material support" charge retrospective?
In the past few days there have been claims that the charge of "providing material support for a terrorist organisation" is retrospective. The Attorney-General yesterday told ABC Local Radio in Canberra that the charge already existed and was not retrospective, although he was not able to explain why since he was taking other people at their word that this was the case. This is not the most promising attitude from somebody who really ought to be right on top of a major issue like this, but it is fairly consistent with what we have come to expect from Philip Ruddock.
There has in fact been an offence of providing material support to terrorists on the US statute books since 1996. The offence was placed into Title 18, section 2339B of the United States Code by the Antiterrorism and Effective Death Penalty Act of 1996 (US). In the US citation format this is known as 18 U.S.C. § 2339B (which is also sometimes written as 18 U.S.C. 2339B or 18 USC 2339B). This provision was since re-enacted under the PATRIOT Act and the provision that is being described as retrospective is arguably a further re-enactment, however given the time of the alleged offences the 1996 provisions are the ones that we should be looking at.
There is no question that the United States has jurisdiction under international law to try offences committed by any person anywhere in the world against these provisions, at least in so far as they apply to Al Quaeda. This has been the case since the first attacks against US citizens by Al Quaeda, which occurred in the 1990s.
The term "material support" was defined in 18 USC 2339A as follows:
DEFINITION- In this section, the term `material support or resources' means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.
The supply of currency would probably need to be in the form of donations rather than payment for services and so it may not apply, but the question of "training" may be more difficult for Hicks if he has done what is alleged - translating Al Quaeda training manuals into English would constitute the provision of training. There is some question as to whether this actually happened and as to whether Hicks has sufficient skills in the Arabic language to make an attempt, but that seems the most likely basis for the charge and it certainly brings the alleged conduct within the scope of the offence as it existed at the time of the alleged conduct.
Accordingly, the law is not retrospective and Hicks can be charged with this offence on the basis of the facts alleged.
The "providing material support for a terrorist" against Hicks
I do not agree with you that "training" is the most likely part of the offence of "providing material support for a terrorist organisation" that could be applied to David Hicks. Knowing what very little we do know about how Hicks was apprehended I would have thought the applicable section of this charge relates to "personnel" as this, according to research of this charge, applies to oneself as well as applying to the provision of one or more "personnel". A little harder to jump I think. The penalty carries up to 15 years as long as there is no proof that Hicks's actions resulted in someone elses death.
That's certainly a possibility too
It's not unreasonable to read "personnel" as including oneself although it would be open to interpretation. Do you have any case law (US or otherwise) that supports this reading?
Where are you getting the 15 years from? Section 2339B was 10 years at the time of the alleged offences, although it was modified since then.
Hicks is Guilty? Maybe
I remember when David Hicks first got caught "His Father was interviewed and he said he should be "Hanged". I may well be wrong, but at the time the towers in New York had been driven into by Jet Airliners
I trained as a commercial pilot and one thing we did not do was talk about or for that matter contemplate flying the aircraft into something solid
So why is itthat someone who packs their bag and goes to another country, engages with people who have weapons and explosives, and that person knowlingly helps to mcommitt actions that everyday citizens don't do, gets support from the media, lawyers and others to try an defends their actions
I find it hard to beleive that Mr Hicks is innocent of anything.
So retrospective or not, Mr Hicks knows full well what he has done and therefore has to face the consequences
If you think about it in Australia legislaters are trying to stop these types of Laws being inacted for brutal criminals who seem to have "Top SC's" who manipulate the Law to get them off crimes that the general public raise their collective voices against.
The World is going through a change at the moment, but we should educate young people, "what is wrong and what is right" not try to argue amoungst who selves, whilst they look on and laugh in our faces, because that is what they are doing!!
Happy New Year
Alex
It was never about whether or not he was guilty
OK, some suggested he was innocent because the laws he was charged under were invalid. I was not one of those - on my reading the laws Hicks was charged under were restatements of laws that were on the books in the US at the time of the alleged offences and sought to cover anybody who was under US jurisdiction, which for offences seeking to attack the US as a nation is anybody at all, anywhere in the world.
The real issue from my point of view was always that Hicks was taken outside the ordinary legal system with all its checks and balances and put into a contrived system that did not meet accepted standards for providing a fair trial, and that for most of the time he was held without charge.
It was satisfying to see that the convening authority for the military commissions at least threw out the most unsustainable of the charges - in fact the result there was exactly what I expected given the facts claimed. Nevertheless, the rules of evidence and procedure in the military commissions, the lack of ordinary avenues of appeal, and other aspects surrounding the commissions, were and are entirely unsatisfactory.
Lets think back a bit
Okay Troy you argue the law and I respect you for that, but I argue the fact that on Sept 11th 2001 the World went black, we all were in shock
The White House wanted the movie makers to make the worst and most terrifying movies they could
No one knew what too do.
Because this was something that shocked the collective World into thinking, Why and What for?
In the past we have lived with things we don't agree with, but this event really made us all wonder, was it real or just some sort of stunt.
Yes it was real, no it was not a stunt gone wrong or any thing else
I was shocked and sickened so much I could not ( and still can't ) watch the images
I actually had just come back from University in England and the atmosphere projected by people was razor sharp.
Yes locking people up without legal representation is wrong, but more over educating young people I think is part of our problem.
Literacy in Australia was not very good for people born in the early part of the 20th century, but it is even worst now, because we let some foolish person persuade our country to adopt an idealistic approach to the basics
Now we have to try and fix it!!!
How do we do that make a movie?
It seems that the old saying "History Repeats" will haunt us again and again.
We can't even fly to the moon. Yet in 1969 they could
The students in our schools don't care, teachers and parents attack and blame teachers and the young people think it is FUNNY
So what do they do, they take drugs, they don't care, they kill each other, they commit suicide etc
What can we do, I think we all should try to get on, get rid of all these minority groups, make Australia proud again, because don't forget the Media told us to Get Rid of the Ocker Image (Stubbies and Blue Singlets)and become more...something
Look at what it has done..everyone is against each other all the time no fathers, no unity no nothing...
Thanks for my time on the soap box
Alex in China
By the way my great grand Father settled in outback Australia and there is one thing I aint and that's racist
piuks66@yahoo.com.au