REPORTER: Sarah Ferguson
It's late afternoon, a modest suburban street in north Adelaide.
Terry Hicks fills in the empty time waiting for news of his son.
TERRY HICKS: I think the worst part of it is – look, during the day you have other thoughts and when you come home from work it's quiet, then you start thinking, you know, I wonder how David's going, Oh God, what are they doing?
Terry's son, David Hicks, was described by Attorney-General Daryl Williams as dangerous as a person can be in modern times. The American and the Australian governments say he was part of al-Qa'ida.
TERRY HICKS: If they prove David was involved in that sort of thing, we accept it. He has to wear what he's done. But he's been now detained for 15 months and they still can't come up with any evidence of anything, so why hold him?
Now, the US Administration is saying that he and the other Australian prisoner at Guantanamo may be detained indefinitely.
TOM SCHIEFFER, US AMBASSADOR: It's not dissimilar to a situation that would have existed in World War II, in which Germans would be captured after a battle and would be held in camps until the war was over. That essentially, I think, is the situation with these two fellas. When the war is over, when it's brought to some conclusion, then they'll be dealt with.
MICHAEL RATTNER, CONSTITUTIONAL RIGHTS CENTRE LAWYER: This war, according to the United States, is different, this is a permanent war, a 50-year war, they've even said, against terrorism. They've somehow put Hicks into that war and essentially said “We have the right to keep Hicks forever. We can keep him for 50 years here or until we consider that war to be over.” There's no law that governs that.
Michael Rattner is the vice-president of the Centre for Constitutional Rights in New York, since the '60s a high-profile legal group involved in landmark social justice cases. Rattner is acting for Hicks in the United States. He says the Hicks family has been let down by its government.
MICHAEL RATTNER: The Australian Government, from what I can understand, has done nothing to push his rights. In fact, they've done the opposite. They've essentially tried to threaten him with prosecution, even raising issues of treason and the like, so they haven't actually done what I think any government is supposed to do, which is protect their citizen's rights. The Kuwaitis, for example, there's at least 12 Kuwaitis there, have actually hired a law firm, paid them $500,000 in the US to litigate cases on behalf of the Kuwaitis.
Terry Hicks and his wife Beverly, David's stepmother, try to follow the legal arguments in David's case. But the nearest thing they have to real contact is David's letters, written from Guantanamo Bay and delivered by the Red Cross.
BEVERLY HICKS: This is one of his very first ones.
TERRY HICKS: So that one was – when was that one? 3 June.
BEVERLY HICKS (reads): “I'm sorry for any inconvenience or embarrassment that I've caused you.”
TERRY HICKS: That was the first one.
BEVERLY HICKS: He caused us a bit of embarrassment in the beginning, didn't he?
TERRY HICKS: Yeah, he did, but we'll still stick by him.
Written in a cramped childish hand, they're signed sometimes David Hicks, sometimes Mohammed Dawood, his Muslim name.
(EXCERPT) “Dear family, everybody, your second lot of letters have just arrived dated the end of January. At the moment, I am not allowed to read them. I have to wait for another 10 days. Things are going OK. I have five more weeks before I will be transported to the new prison up the road. I'm being interrogated often.”
Hicks was moved from the open cages at Camp X-Ray to the more permanent facilities at Camp Delta – hurridly constructed by Dick Cheney's former oil and construction company, Halliburton.
BEVERLY HICKS: Then we got one in an envelope that was addressed.
In June, six months after Hicks arrived in Cuba, Terry and Beverly received a letter via the regular mail.
(EXCERPT) “I spend all day stuck in a small cage with no daily program. I've been visited at the moment by four Australians, which is the first time since I've been here – two police, one intelligence and one from the embassy in Washington. They say if I talk I'll get home, where I've a better chance, quicker compared to if I didn't cooperate at all and I'm desperate to get home.”
The Australian Government denies such an inducement was made. But they also did nothing to correct misinformation about Hicks, which originated in the US. The State Department fed stories to key journalists that Hicks was a particularly violent and dangerous prisoner.
(EXCERPT) “I am shocked at some of the lies circulating in the media about me. This makes me angry. One story was about how I slipped my hands out of the handcuffs on the plane coming over here to Cuba from Afghanistan, fighting and yelling to the Americans, “I'll kill you!” Of course this is a load of crap. My interrogators admitted that the story was a lie and our government said the Americans had told them that as well. The Australians said they'd tell the media it was crap.”
His Australian lawyer, Stephen Kenny, believes the stories were put out to demonise Hicks.
STEPHEN KENNY, LAWYER: All we can assume was that those reports were intended to damage David's personal credibility in the eyes of the public so it looked like the Americans were detaining very dangerous people and they needed to do it. If they were untrue, and we suspect now that they are, then it's a very serious allegation to make that the American Government is deliberately lying to the public.
BEVERLY HICKS: He must have had some secrets that they wouldn't let him say – they've blacked it out. He's already been in Cuba how many months? Nearly a year or something?
TERRY HICKS: It's over a year.
The family haven't received any letters from Hicks since November last year, and now their own letters to him are being returned unread.
REPORTER: How important to the two of you are these letters?
TERRY HICKS: Look, I think the letters are very important at this stage, because it is the only contact that we have with him and it makes us feel a lot better knowing that he is still going on OK. But once these letters keep coming back, it just creates a doubt of why they are doing this. Is he OK? And, you know, it throws thoughts of what's going on, or is he sick or, you know, and he can't write or something like that. And it is… (Becomes emotional)
BEVERLY HICKS: We know he's still alive because we have that letter from the Attorney-General's Department saying he was well.
TERRY HICKS: Yeah.
STEPHEN KENNY: David Hicks and Bandu Habib are both Australian citizens. It's very clear that human rights are being seriously violated by the Americans and there is no protest made by the Australian Government. It appears that they are happy, that is the Australian Government is happy, to accept that an Australian citizen has secondary rights to an American citizen, because if they'd both been Americans, the rule of law would have applied to them, they would have had an opportunity to defend themselves in court and they would have access to lawyers and families.
At the same time, without providing any evidence to support its case, the Australian Government asserts that David Hicks fought with al-Qa'ida. An assertion refuted by analysts of the terrorist organisation. So how did this wayward boy from the suburbs end up in on the world's most-wanted list?
TERRY HICKS: David was a person that if he, if he wanted to cross the road, and he couldn't go over it, he'd go under it. And that's the type of person he was. He just… There was no way that he could see that anything could stop him from doing it. He would try to achieve the impossible sometimes.
Like thousands of young men in a previous generation who went to fight in the Spanish Civil War, Hicks went to Kosovo. He fought briefly with the Kosovo Liberation Army, then an ally of the West in the war against Slobodan Milosevic.
TERRY HICKS: It wasn't long after he come back from Kosovo, I believe that he was looking for something. He actually went to the Christian churches for a while and couldn't find what he was looking for and that, and finally took up the Muslim thing, went to the Islamic Muslim college here in Gillies Plains.
To the family's surprise, Hicks began studying the Koran in Arabic.
TERRY HICKS: David used to take pride in coming down here to the lounge and reading out of the Koran and singing his… They do sing the thing when they… And I think I was more shocked than anything. Not so much at the religion but the way he was coping with the language.
Hicks prepared for his conversion to Islam at a religious college attached to Adelaide's Gillies Plains mosque. It's a mosque which follows a traditional interpretation of Islam.
TERRY HICKS: Then he started talking of going to the Islamic college in Pakistan. And I thought, well, that is a worry because things weren't looking real good at that stage over there, but David was very intent on doing that.
Hicks's mentors at the college discussed with him the move to Pakistan. After his arrest, the nature of their relationship became part of a wide-ranging investigation. Fellow Muslims who worship here at the Gillies Plains mosque were subject to intense scrutiny by ASIO. So intimidated were they by that experience, they now refuse to talk on camera. The man most directly responsible for Hicks's religious instruction during his conversion to Islam left Adelaide after being investigated by ASIO. It was this man who made the arrangements for Hicks to study at the religious college, or madrassa, in Pakistan. In December 1999, Hicks went to Pakistan, to the Markaz ud Daawa wal Irshad, a religious college near Lahore. It wasn't just a study trip. The college was closely connected to the militant Kashmiri group Lashkar e-Toiba. Hicks wrote to his family and told them he was training with the group.
TERRY HICKS: All we knew was that he spent, I think it was four weeks on the military side, and then they spent so many weeks back at the Islamic college. Then after that period of time they go back on to that military side again.
(EXCERPT FROM LETTER): “I've said that I took training from Lashkar e-Toiba and went to the Line of Control, fired some bullets but didn't kill anyone. Then by the request of my Kashmir group I undertook training in Afghanistan with the Arabs, with a view to return to Kashmir in the future. I also went to the front line against the Northern Alliance armed. So these are the types of issues I've admitted to on tape.”
The last time Terry Hicks heard his son's voice was on a satellite phone from a ditch near Kandahar, weeks after September 11.
TERRY HICKS: He did not know anything about that at all and he was quite genuine. You can tell by the tone of the voice, and his remark was “Oh, I think that'd probably be a lot of Western propaganda.” So that's how much he knew – he didn't even know it had even happened.
David Hicks was captured in December 2001 by the Northern Alliance near Kunduz. According to the US, Hicks was not just fighting for the Taliban, but with al-Qa'ida. And on this point, they make the argument he has no rights to be treated as a prisoner of war, employing instead a defunct term – “unlawful combatant”.
MICHAEL RATTNER: The Geneva Convention requires people picked up on the battlefield – assuming Hicks was picked up in that capacity – to be treated as prisoners of war. If they're not treated as prisoners of war, the convention says they have to have a tribunal, a small military tribunal, that determines the facts and basically gives people a chance to say, “I was picked up wrongly, I should be a prisoner of war, etc.”
American John Walker Lindh surrendered at the siege of Mazar-e-Sharif and was detained with Hicks in Afghanistan.
JOHN WALKER LINDH (ARCHIVE): I have a bullet in my leg.
He's the only one of Hicks's fellow-Taliban captives to have been tried. He was indicted as an al-Qa'ida terrorist.
JOHN ASHCROFT, US ATTORNEY-GENERAL (ARCHIVE): The indictment charges that Walker Lindh was forging ever deeper bonds with al-Qa'ida. He met with Osama bin Laden. He chose to go to the front lines to fight with the Taliban.
But the Government's case collapsed in part because they were unable to make that connection with al-Qa'ida. Instead of a series of life sentences, Lindh got 20 years in an Arizona prison for aiding the Taliban regime.
MICHAEL RATTNER: I think that the inability of the United States to prove that somehow that Lindh was a terrorist raises the question about everybody they've picked up here and took to Guantanamo – everybody that they picked up in Afghanistan and Pakistan. Because if those people were fighters, and not terrorists, not alleged terrorists, then they should have been treated under the Geneva Conventions and prisoners of war.
It may be of little comfort to Hicks, detained in an American jail in Cuba, and neglected by his own government.
Meanwhile, Terry and Beverly Hicks wait anxiously for news. Terry's very last letter to his son has just come back marked “Return to sender.”