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Win or lose, Hicks could be free by Christmas
The decision overnight by the Guantanamo tribunal convening authority leaves only one charge against Hicks - that of material support for terrorism. Under the law in effect at the time of the alleged offences Hicks faces a maximum of 10 years imprisonment for that offence, and since his alleged offences are not in the worst category of such offences and he has no previous convictions for this kind of offence, any conviction would result in a sentence that is much shorter than the 6 years he has already served. While the United States would not deduct time served, Hicks would be returned to Australia to serve his sentence, and Australia would deduct time served, thus giving him freedom on return.
The decision to drop the attempted murder charge is unsurprising. Even if everything alleged by the prosecutors were true, the offence was not made out and the charge should not have been brought at all. Allowing this charge to go forward would have confirmed beyond any shadow of a doubt that the military tribunals were a kangaroo court with no regard to even the substantial law. This does not mean they still meet accepted requirements of procedural law &emdash; they are still an unfair forum for a criminal defendant &emdash; but at least they have not gone through the open farce of allowing a charge that could not be made on its merits.
From here on in Hicks has to decide what is more important to him - clearing his name or gaining his freedom. The quickest way to get his freedom would be to discontinue the Habeas Corpus action in the US federal court system and plead guilty to the material support charge. Contesting the charges would extend his time in custody, but offers him the chance of a not guilty verdict. If the verdict goes against him, any appeal would require him to remain in US custody where he would not get the benefit of time served, thus extending his imprisonment.
Given the system established, the best option may be to plead guilty and argue that he had no choice given that the system under which he was to be tried was set up to guarantee convictions. When there is no real opportunity to contest the evidence against him a guilty plea seem like a rational thing even for an innocent defendant. It would be less than satisfactory, but at least he would not be stuck in the American Gulag any longer.
Federal Government confirms this view
You read it here first, now the Federal Government has confirmed that a plea bargain could see Hicks home and free in a month, describing it as not only probable but acceptable.
re: 10 years
Where do you get the ten-year figure from? According to the MCA-- under which Hicks is to be charged-- "PROVIDING MATERIAL SUPPORT FOR TERRORISM" is punishable, at maximum, to "Confinement for life".
The Military Commissions Act is not the source of the offence
Even though the charges are brought under the Military Commissions Act, that Act did not even purport to create new offences. While it might be the case that it has increased the penalty for offences committed since its enactment (although in the case of the "material support" charge even this seems doubtful), for the penalty applicable to Hicks we need to look back at the penalty applicable at the time of the alleged offences, which under 18 USC 2339B was ten years.
I know that both the prosecution and the defence are claiming the maximum is life, and the only explanation I can offer for that is that it is politically expedient for each to make that claim.