After David Hicks pleaded guilty yesterday to a charge of providing material aid to terrorism, it seems that he may soon be sentenced and packed off home to serve out his remaining term, whatever it may be, in Australia.
The responses to this in the media are far from nuanced. As usual, the debate is being dumbed down for public consumption. It seems that we must interpret Hicks as either a good, if naive, young man who deserves a hero's welcome when he returns or as a scion of evil who ought to be deprived of justice.
He is neither.
Hicks trained, worked, and fought for terrorist organisations, and does not deserve our adulation or sentimentality. He was motivated by religious fanaticism and racism, and evidently enjoyed his participation in violence. At the same time, though he fired a lot of bullets over the border into India, he apparently never killed anyone or committed any atrocities. More importantly, no case has been made out that he broke any Australian law that was in force at the time of his conduct overseas. He had no connection with the US, the country under whose law he is being tried: the events did not take place within the US, and he was not an American citizen. Furthermore, even the US law being applied to him is retrospective.
The imprisonment of Hicks is wrong in principle because it involves the assertion of extraterritorial jurisdiction and the use of retrospective criminal legislation. Those are the issues we should be focused on, not whether Hicks is a saint or a devil.
As I've said before, I'm not opposed in principle to control orders for people who are a danger to the public (provided there are safeguards in place). Control orders look to the future, not the past. If it can be demonstrated that Hicks is likely to commit acts of terrorism, then let's see the demonstration in an Australian court, and then a control order can issue with my blessing. In an age when individual acts of terror cause such massive harm, there may be good reasons to develop novel remedies, such as control orders, as long as they are issued only after a rigorous process, so that they don't just turn into modern-day bills of attainder. The law need not stand still, but must adapt to the times.
Nonetheless, we all depend on principles that effectively forbid retrospective criminal laws and the assertion of extraterritorial jurisdiction over non-nationals. Whenever those principles are abrogated, we should make a stand for them, however much we may dislike the particular individual who happens to be the victim of injustice this time.