The facts regarding David Hicks can be summarised simply. Gerard Henderson in the SMH misrepresents the facts and distracts us with red herrings.

As
an Australian citizen abroad, Hicks is entitled to effective Australian
Government consular protection when arrested and charged with serious
crimes by a foreign government. For the past four years he has not had
this protection. To surrender his final fate to a military “court”
where the US military is at once plaintiff, jailer, evidence-gatherer,
prosecutor, judge and jury cannot give him a fair trial. At the very
least, he should be tried by a US civil court (as was US citizen John
Walker Lindh). Or he should be returned for trial in Australia as other
non-US Guantanamo inmates (e.g., British, French prisoners) are being
repatriated to face judicial process in their own countries.

The
online encyclopedia Wikipedia, based on reputable mainstream media
sources, says Hicks was captured in Kandahar in the closing days of the
civil war between the then Taliban government of Afghanistan and the
Northern Alliance insurgency supported by US special forces and air
power. The insurgency prevailed and the Taliban government, for which
Hicks was fighting, fell. Hicks was captured by Northern Alliance
troops. He can fairly claim that at the time of capture he was under
arms as a foreign volunteer for a sovereign government which he
supported. In what ways does this differ from the foreign volunteers
who fought for the losing Republican government in the Spanish Civil
War against the successful Francoist insurgency?

Yes, we do
not like the Taliban government, and we know the US decided to unseat
it for giving refuge to Al Qaeda, but those facts of themselves do not
make Hicks an Al Qaeda fighter. The US military allegations cited by
Henderson that he was trained by Al Qaeda as an international terrorist
are just that – unproven allegations. They need to be tested in a real
court under proper rules of evidence, not by a military Star Chamber.

As
for Hicks’ record of fighting for the Kosovar Liberation Army, were not
the KLA defending the Kosovar people (Muslims) against genocidal acts
and mass ethnic cleansing by militarily dominant and brutal Serb
forces? Weren’t a million Kosovars forced to flee their ravaged
villages into Albania? Wasn’t the KLA “on our side” at the time?

Henderson
condemns Hicks’ political and religious views as privately communicated
by letter to his father. Isn’t Henderson here accusing Hicks of
Thoughtcrimes (cf. “1984”)? Hicks was not on a public platform; he was
trying to explain his ideas to his close family. However much many of
us dislike such ideas, we must surely in a democracy defend his right
to have them?

In recent days, many eminent Western lawyers,
Australian and international, have made some of the above points, in
particular as to manifest inadequacy of the legal process – even
including the ADF’s senior military counsel, Captain Paul Willee. Such
unanimity among legal professionals must be given due weight. I give no
weight to Henderson’s piece, which is nothing more than poorly
constructed propaganda in defence of the indefensible.

The
truth is – Howard has painted himself into a corner on Hicks. Having
knuckled under to everything the US said and did, he cannot now protest
without the risk of generating doubts in the Bush circle as to his
loyalty under pressure. Hicks is the victim of that, and this is
injustice. Australians are right to protest.

Read more on Wikipedia here and here.