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US court throws into doubt David Hicks' convi -

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ELEANOR HALL: First today, to the US Court of Appeals decision that could see the terrorism conviction against Australian David Hicks overturned.

The Court has ruled that the law that was created in 2006 to convict Hicks can't be applied after the fact.

David Hicks was one of only three people convicted of providing material support for terrorism under this law, along with Osama Bin Laden's former driver, who has appealed against his conviction.

Hicks was captured in Afghanistan in 2001 and spent seven years in the US detention facility in Cuba before being transferred to Australia, where he spent 9 months in an Adelaide prison.

The lawyer for David Hicks says he's not yet spoken to his client about whether or not he will now appeal his conviction.

Jennifer Macey has our report.

JENNIFER MACEY: A decision by a US appeals court overnight has thrown David Hicks' terrorism conviction into question.

STEVEN GLASS: What it means is that a appeal court in the United States has found that the provision under which David Hicks was convicted at Guantanamo Bay was retrospective and for that reason has no effect.

And so the argument would follow from that that it was not a proper conviction.

JENNIFER MACEY: Steven Glass is a partner at Gilbert and Tobin.

He represented David Hicks in his case against the Commonwealth, which wanted Hicks to forfeit the profits of his autobiography under the Proceeds of Crimes Act.

STEVEN GLASS: We argued from the outset, in acting for David in the Proceeds of Crime case, that this is a very important issue so far as the rule of law is concerned, that people should not be convicted for offences that didn't exist at the time that they engaged in the conduct.

And that was going to be a key issue in the Proceeds of Crime case. It's now been a key issue in this Hamdan case in the United States, and the court has said that is the case, that people should not be convicted of things that were not unlawful at the time that they did them.

JENNIFER MACEY: Do you know if he has any intention of appealing that conviction?

STEVEN GLASS: No, I don't know what David's intentions are at the moment.

Obviously, the ruling only just came out this morning our time, and I've had a chance to read it, but so far as David's intentions are concerned I haven't had a chance to speak to him yet.

JENNIFER MACEY: What are the implications also for Australia, because he was also detained here for several months.

STEVEN GLASS: Yes, well that's a very good question, and one that we are looking at at the moment.

I can't give you any guidance on that at the moment, but obviously you're correct. He was detained in South Australia for about six months after he returned, and of course if he was never convicted, then there could be an argument that that detention was unlawful.

JENNIFER MACEY: The case that's brought attention to David Hicks involved a similar conviction against the former driver and body guard of Osama bin Laden, Salim Hamdan.

The court ruled that 2006 charge of "providing material support for terrorism" was not a war crime and could not be applied to when the alleged terrorist activities took place between 1996 and 2001.

Hamdan was one of only three people convicted on these charges. His fellow Guantanamo detainee also convicted was David Hicks.

The former US military lawyer who represented David Hicks at his Guantanamo Bay hearings is Dan Mori.

DAN MORI: Because the US didn't want to use a real court system - the US Federal Court system - and they resurrected the old military commission system, it had very limited jurisdiction. It could only try offences against the laws of war.

And so I think the problem was that they found out that nobody in Gitmo (Guantanamo Bay Naval Station) had violated the laws of war, in that first group they brought there.

So the only way to justify what they'd done is to make up some crimes after the fact, and that's where this material support for terrorism came from.

JENNIFER MACEY: he says the US government could still appeal against the decision in the Supreme Court.

DAN MORI: Now will the military commission system be sending him a nice letter soon saying "We're sorry (laughs), we charged you with a retrospective crime and please accept our apologies"?

I don't think that's going to be coming any time soon.

There could be a lot of things that lawyers should be considering and factoring in for David.

I think at this point right now, it's whether or not it's going to be appealed.

If it's not appealed, then looking at the next step.

But I think that at least for him and his family it's some vindication of the way he had been mistreated, at least in the legal process.

JENNIFER MACEY: David Hicks' father Terry says he had long argued that the retrospective nature of this law was wrong.

TERRY HICKS: The procedure was to retrospect the laws before the dates of whatever happened so that they could actually charge David with something.

We've asked for enquiries into all this business and into other things but it's been sidelined, too-hard basket, may get other people into trouble - whatever.

JENNIFER MACEY: Terry Hicks says he hasn't yet spoken to his son, but his family does feel vindicated.

TERRY HICKS: If David's name is legally cleared, that makes me feel a lot better.

It'll make David feel a lot better, and also I think the people that have supported David over the years, they'll be able to put their hands up and say, "Look, this is what we've all been working for".

ELEANOR HALL: That's Terry Hicks, the father of David Hicks, ending that report by Jennifer Macey.