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David Hicks Can't Sell Detention Story:

One-time Gitmo detainee David Hicks is back home in Australia, where he had hoped to sell his story about meeting Osama bin Laden and his eventual capture and detention by the U.S. military. No dice. Although the provision in his plea deal not to sell his story is unenforceable in Australia, the Australian Attorney General says such a sale is barred under Aussie law, according to this press report.

Ruddock said a separate Australian federal law against criminals profiting from crime through media deals will stop the 31-year-old former kangaroo skinner from selling his story about meeting al-Qaida leader Osama bin Laden in Afghanistan, and his allegations of being tortured during his five years at the Guantanamo prison.

"We would seek to ensure that he would not be able to profit from any story that he sought to tell," Ruddock told Nine Network television.

The Australian government agreed to let the U.S. charge Hicks because his training with al-Qaida and the Pakistani terrorist group Lashkar-e-Taiba in 2001 did not break any Australian law at the time.

But the government had Hicks in mind when it passed legislation in 2002 that prevents lawbreakers from selling their stories if they have committed offenses that can be tried by a U.S. military commission, established by President Bush's order in 2001.

Greg S. (mail):
He should move to France.
4.8.2007 2:22pm
Tek Jansen:
I look forward reading the book titled "If I met Osama" by David Hicks.
4.8.2007 2:44pm
Sean O'Hara (mail) (www):
Doesn't sound like he's prevented from publishing an account of what happened, he just has to have the publisher donate the proceeds to charity. And depending on exactly how the Aussie law is worded, he might be able to make money from a book about his detention that doesn't mention the circumstances leading up to his capture.
4.8.2007 3:05pm
logicnazi (mail) (www):
Hmm, I don't know how effective that law will be. After all to be enforced it must be proved, in a matter acceptable to the Australian legal system, that Hicks did in fact commit such offenses. Maybe the legislation is wording in some way to get around this problem but I think they would have great difficulty wording the statute in an appropriate way.

A better story with links to the relevant laws is here. Interestingly it seems that Australia only gets to confiscate proceeds made from books in Australia. Thus nothing would seem to prevent him from receiving massive payments for publication of his book in the US or England or wherever else.

Interestingly he may not even be able to sell his story about Gitmo because the courts might rule it is commercial exploitation of:

the person's notoriety resulting from the person committing
an *indictable offence or a *foreign indictable offence; or


However, it's not clear whether notoriety arising from one's incarceration counts.

Also it seems the courts have virtually unfettered discretion to choose not to give a literary proceeds order so a favorable judge very well might let Hicks take the money.

Most importantly though is that the only reasons for taking the money are if they proceed from a foreign indictable offence which is defined thus:


foreign indictable offence means an offence against a law of a foreign country constituted by conduct that would have constituted an offence against a law of the Commonwealth, a State or a Territory punishable by at least 12 months imprisonment if it had occurred in *Australia.


Note that this doesn't seem to allow them to take Hick's money unless their is some Australian law that he broke. Yet even if Hicks is guilty of taking up arms against the US government I'm unsure what Australian law he is alleged to have broken.

As an aside this definition seems quite troubling. For instance not all crimes are even logically possible to suppose happened in Australia. Relevant to this case is the question of how you handle laws that ban things like violent opposition to US forces. Does that translate into violent opposition of Australian forces or violent opposition of US forces in Australia?

In short his prospects to keep the money seem reasonable.
4.8.2007 4:05pm
Chris Bell (mail):
As this LA Times article said,

Moreover, in a highly unusual provision, the agreement requires that Hicks not speak to the media for a year. Gag rules are not imposed to prevent people from telling lies; they are imposed to prevent people from telling the truth — in this case, how Hicks was treated after his capture and during his detainment.

What are we to make of this? How did the very first case brought before a military commission — a system we were told was necessary because of the danger and impracticality of prosecuting arch-terrorists in U.S. courts — result in a sentence of only nine months?

If Hicks is even remotely as menacing as the United States once asserted, then the government is grossly negligent to permit his release on these terms. But no one believes that to be the case.


How is the "no book deal" not a First Amendment violation? (Or whatever the Aussie First Amendment is?) Is it just the profits that are illegal, as some commentators have said?
4.8.2007 4:32pm
Bill Poser (mail) (www):
Australia has apparently passed an amendment to its "no profit for criminals" law that defines offenses triable by the Guantanamo commissions as crimes under Australian law for the purpose of the statute. This looks to me like an ex post facto sanction but I don't know whether that violates the Australian constitution or not.
4.8.2007 5:25pm
Bill Poser (mail) (www):
Here's an article that mentions the Australian law extending the scope of the no profit law. It was passed in 2002, which makes it ex post facto.
4.8.2007 5:28pm
Dave N (mail):
I have no expertise on Australian Constitutional Law. I think it is prudent, however, not to ascribe American norms to Australian law, despite both countries' common law tradition.

I would disagree that the law is necessarily ex post facto, even under American law. Hicks had neither written the book nor been convicted when the law was passed. Had he already written the book, that would be a different thing entirely. It also seems that the relevant moment in time is when the conviction occurred (2007) and not when the crime occurred (2001).

For example, when the habeas corpus statute was modified in 1996, it affected all petitions filed after that date, regardless of when the conviction occurred. If habeas corpus rights could be limited in that fashion, I am not sure why the ability to write a book could not be.
4.8.2007 7:21pm
Bill Poser (mail) (www):
Dave N,

I am no authority on the ex post facto restriction, but I would think that the relevant date would be that of the criminal act, not that of the conviction, since the prohibition on profiting from publication is effectively part of the penalty for the crime. This distinguishes it from the habeas corpus example, which is a change in procedure, not penalty. The parallel is that if the penalty for a crime is increased, a person convicted of the crime is sentenced under the law prevailing at the time of the crime, not that prevailing at the time of sentencing.

Wikipedia says that Australia has no constitutional prohibition of ex post facto laws but that courts have a strong tendency to interpret laws as not applying retroactively.
4.8.2007 7:35pm
Dave N (mail):
Bill Poser,

Thanks for the response--but it seems to me that Hicks is not being punished for actions he did after the 2002 law was passed. Rather, he stands convicted of existing violating American law in 2001.

The book prohibition is not a penalty per se, nor is it a substantive offense. Rather, it is a prohibition of Hicks' future conduct--that is, his ability to write a book.

This is not my area of expertise--perhaps some who have more knowledge can discuss the ex post facto ramifications of the laws on the books in many American states that prohibit people from writing books or otherwise enriching themselves based on their criminal activity.
4.8.2007 8:09pm
Dave N (mail):
"violating existing American law" NOT "existing violating American law" (which makes absolutely no sense)
4.8.2007 8:12pm
neurodoc:
Last month, I suffered an injured as a result of a doctor's clear negligence. Others have settled claims like mine, but with less favorable facts, for >$1M. Tomorrow, the state legislature passes and the governor signs legislation capping damages in medical malpractice cases at $1M. That's ex post facto isn't it, but can I still hope to collect >$1M? I think not.

Gag rules are not imposed to prevent people from telling lies; they are imposed to prevent people from telling the truth — in this case, how Hicks was treated after his capture and during his detainment.
That's not from an LA Times article, but rather from an opinion piece by an ACLU attorney. And his biased perspective comes through clearly.

Hicks would tell the truth about how he "was treated after his capture and during his detainment," and everything else, he would have no reason to lie about any of it?! Not even to enhance the value of his story or garner more sympathy or promote the cause of radical Islam? If the US government knew that Hicks was going to lie, then a "gag" requirement would make no sense? What makes no sense is this ACLU lawyer's tendentious reasoning.

If Hicks is even remotely as menacing as the United States once asserted, then the government is grossly negligent to permit his release on these terms. But no one believes that to be the case.
Either the US government has been "grossly negligent to permit his release on these terms" or the US government has been mendacious in its representations regarding Hicks perceived dangerousness, it must be one of the other of those?

The only reason to incarcerate someone is to incapacitate them so they can't offend again, or at least can't offend for awhile? (Aren't the offenses committed a significant consideration?) Hicks has been incapacitated for the past five years, a not insubstantial period of time, and he, unlike some others who have been released, doesn't seem to be someone too likely to go back to being a jihadi.
4.8.2007 8:16pm
Bill Poser (mail) (www):
Dave N,

We are agreed that the crime was on the books when Hicks committed it, so his being punished for it is not in and of itself a violation of the ex post facto prohibition. The crucial point is whether the prohibition on his profiting from publication about his activities is a penalty. It does seem to me that it is since it is imposed specifically because of the criminal act. What is the status of such things as restrictions on the residence of sex offenders after they are released from prison? If such restrictions are put in place only after the offense, is that considered ex post facto and not permitted to apply retroactively, or are such restrictions not considered to be part of the penalty?
4.8.2007 8:19pm
Bill Poser (mail) (www):
neurodoc writes

Last month, I suffered an injured as a result of a doctor's clear negligence. Others have settled claims like mine, but with less favorable facts, for >$1M. Tomorrow, the state legislature passes and the governor signs legislation capping damages in medical malpractice cases at $1M. That's ex post facto isn't it, but can I still hope to collect >$1M? I think not.

I believe you're right, but that's a civil matter. Criminal law is different. In the United States, Canada, the EU, and various other countries including Iran, a person convicted of a crime may not be subjected to penalties increased after the commission of the crime.
4.8.2007 8:23pm
neurodoc:
I am no authority on the ex post facto restriction, but I would think that the relevant date would be that of the criminal act, not that of the conviction, since the prohibition on profiting from publication is effectively part of the penalty for the crime.
If that were true, then the Son of Sam law passed years ago by the NY legislature could not have applied to the Son of Sam, now a born-again Christian preaching to others in prison, who had already committed his series of murders. It did apply, however, denying him the chance to profit from his crimes.

I would disagree that the law is necessarily ex post facto, even under American law. Hicks had neither written the book nor been convicted when the law was passed. Had he already written the book, that would be a different thing entirely. It also seems that the relevant moment in time is when the conviction occurred (2007) and not when the crime occurred (2001).
I doubt that it would matter whether the book had already been written. I think it would be like my med mal example above, wherein the negligence had already caused the injury, but the case had not yet been litigated when the legislature capped recoveries for such torts. What I am less certain about is whether it would matter if I had filed suit when the legislation affecting my claim was enacted, or the convicted person had already published and started receiving royalty checks when the legislation affecting his property rights was enacted. I expect protests that these legislative unertakings were belated, that is ex post facto, would not avail either of us, though surely I would be the more sympathetic grievant.
4.8.2007 8:28pm
Bill Poser (mail) (www):
neurodoc

It may be that the Son of Sam law applied to David Berkowitz only because he did not challenge it. The New York law was struck down by an 8-0 vote of the Supreme Court in 1991 in Simon and Schuster v. Crime Victims Board 502 US 105.
4.8.2007 9:03pm
Bill Poser (mail) (www):
Here's a link to the opinion
by Justice O'Connor in Simon and Schuster. The Court held that the Son of Sam violates the First Amendment.
4.8.2007 9:07pm
Kevin P. (mail):
logicnazi

Note that this doesn't seem to allow them to take Hick's money unless their is some Australian law that he broke. Yet even if Hicks is guilty of taking up arms against the US government I'm unsure what Australian law he is alleged to have broken.

As an aside this definition seems quite troubling. For instance not all crimes are even logically possible to suppose happened in Australia. Relevant to this case is the question of how you handle laws that ban things like violent opposition to US forces. Does that translate into violent opposition of Australian forces or violent opposition of US forces in Australia?


Hicks was convicted of providing material support to terrorism, not of "violently opposing US forces". I have no idea about Australian laws, but would not be surprised to find that there is some similar crime in Australia.
4.9.2007 10:37am
neurodoc:
Bill Poser, thanks for calling to my attention Simon &Schuster. I had thought the Son of Sam law was still good law. (Since it isn't good law, and hasn't been so since the SCt ruled in '91, why haven't more felons sought to profit from telling their stories. Have none been of sufficient commercial interest? BTW, has the Goldman family been able to grab what non-convicted felon OJ has received for telling his story about the Brown/Goldman murders?)

Since the Son of Sam law did not require an automatic forfeiture by the convicted felon of any monies received for telling his/her story, but rather directed those monies to be held in escrow for 5 years to allow anyone with a civil judgment against the felon to collect from the escrowed funds, I don't see why that would not be permissible notwithstanding the First Amendment. (If there were no judgments against the felon within 5 years, then I presume he/she would have received what was being held in escrow.) But of course, it is up to the Supremes and they said otherwise. From a quick read of the holdings, though, it seems the Supremes struck the law down on the basis that the SoS law didn't comport with the First Amendment, not that it was impermissible as an ex post facto penalty for criminal conduct. (Did they say or intimate that had they not found the SoS law defective on First Amendment grounds, they would have found it defective as an ex post facto penalty? If not, I should think we could conclude this was not a problem under US law.)
4.9.2007 10:51am
Kevin P. (mail):
A couple of reasonable solutions to the David Hicks problem:

1) What an Afghan daily suggests.

2) Extradite him to India (and the tender mercies of Indian prisons) since he himself admits to supporting terrorism in Kashmir.

Of course, neither option will go over well with Australian and other leftists who have made him a cause celebre. Which is ironic, because Hicks and his ilk would cut leftist throats without a second thought if given a chance.
4.9.2007 10:56am
Chris Bell (mail):

Hicks would tell the truth about how he "was treated after his capture and during his detainment," and everything else, he would have no reason to lie about any of it?! Not even to enhance the value of his story or garner more sympathy or promote the cause of radical Islam? If the US government knew that Hicks was going to lie, then a "gag" requirement would make no sense? What makes no sense is this ACLU lawyer's tendentious reasoning.

Last time I checked, the government isn't supposed to gag people for any reason whatsoever. There is no libel against the government.
4.9.2007 12:34pm
neurodoc:
Last time I checked, the government isn't supposed to gag people for any reason whatsoever. There is no libel against the government.
Where did you check for the proposition that "the government isn't supposed to gag people for any reason whatsoever"? Don't courts issue "gag" orders, albeit infrequently, and don't parties regularly enter into "confidentiality" agreements, which amount to the same thing? That "(t)here is no libel against the government" is of no relevance, except perhaps to the ACLU lawyer reaching for an argument.
4.9.2007 1:08pm
Chris Bell (mail):

Where did you check for the proposition that "the government isn't supposed to gag people for any reason whatsoever"?

The First Amendment, the one about no laws restricting the freedom of speech.

Don't courts issue "gag" orders, albeit infrequently

Yes, to protect other individual constitutional rights, like the right to a fair trial. (Military secrets are also protected, but this isn't that.) Whose constitutional rights is the government protecting here?

and don't parties regularly enter into "confidentiality" agreements, which amount to the same thing?

But they aren't the same thing at all, as no constitutional rights are being violated.

That "(t)here is no libel against the government" is of no relevance,

But it is extremely relevant, as the only time you can shut someone up for criticizing you is when the statements are libelous. Libel, however, is a crime against the individual. There is no "government libel", so the government can't claim it.

I just want to know what theory the government is using to enforce the agreement. Your 'he might lie about us' idea has no support. If you disagree, cite a case.

except perhaps to the ACLU lawyer reaching for an argument.

You can repeat the fact that this guy works for the ACLU all you want, but it doesn't make him wrong. Again, cite a case.
4.9.2007 1:19pm
Ken Arromdee:
Where did you check for the proposition that "the government isn't supposed to gag people for any reason whatsoever"?

It was a response to the claim in the article, which specifically asserted that gag rules are not imposed to prevent people from telling lies. The response is that it could very well have been imposed for just that reason.

Whether gag rules can be imposed at all is a separate issue; the response deals with the argument that the article actually stated.
4.9.2007 5:11pm