By Mark Coultan and Penelope Debelle
THE Australian Government did not request the controversial one-year gag imposed on David Hicks, says the man who negotiated the deal on behalf of the United States.
Brigadier-General Thomas Hemingway said the gag was his idea.
"I thought it appropriate, given all the rhetoric that was floating around, that it would be appropriate if he would agree not to talk to the press or other media for a while," he said.
General Hemingway is the legal adviser to the military tribunal convening authority, which can approve reductions in sentences.
He negotiated the deal with Major Michael Mori, Hicks' military defence counsel.
Hicks, who has spent five years in the military prison at Guantanamo Bay after being captured in Afghanistan, last week pleaded guilty to a charge of giving material support to terrorists.
Under the deal, he will return to Australia to serve nine months in an Adelaide prison.
Attorney-General Philip Ruddock has rejected suggestions that the Hicks deal was a political "fix" between Canberra and Washington.
Mr Ruddock has said Australian authorities spoke broadly to their US counterparts about sentencing, but were not privy to the details of the plea deal.
Backing Mr Ruddock's statements, General Hemingway said he inserted the gag order on his own initiative. "It was my idea," he said. "I just thought … it was time for Hicks to spend some time thinking about why he was where he was, and worry about publicity after that. I never received any direction of any kind from your Government in Canberra or from the embassy in Washington, DC.
"They probably know me well enough to know I might have taken exception to any direction I thought was uncalled for."
Amid claims that the gag was imposed for a year to silence Hicks before this year's federal election, General Hemingway said he had originally proposed a two-year ban, but this had been reduced to one year during negotiation.
He also said he had agreed to the relatively short period of nine months' imprisonment, with the rest of the sentence suspended, because he knew Australia had laws that could control Hicks' movements after his release. "We knew under Australian law that the Australian Federal Police can apply if they think it's appropriate for a control order," he said.
The original draft of the agreement tried to ban Hicks' family and third parties speaking on his behalf.
But the judge in charge of the commissions struck out the references to his family, pointing out that an agreement could not bind someone who had not signed it.
Initial speculation that the ban was proposed by the Australian Government was based partly on the fact that such a ban would be unconstitutional in the US. Questions have now also been raised about whether the gag will be legally enforceable once Hicks leaves jail.
Professor Don Rothwell, of the Australian National University, said it could be argued that the order was contrary to the Australian constitution, which the High Court had ruled provided a right of freedom of political communication.
Hicks' Adelaide lawyer, David McLeod, said yesterday that compliance with the 12-month gag was up to Hicks, and he would not advise him either way on whether to abide by it.
"At this stage David has signed up to the agreement, and one would assume that if he has done that he expects to abide by it, but that remains to be seen," Mr McLeod said.
Asked if it was realistic to think Hicks could be returned to Guantanamo Bay for breaching the gag, Mr McLeod said: "According to Major Mori, yes."
Speaking on his return to Adelaide from Cuba, Mr McLeod said Hicks' agreement not to pursue abuse allegations should be seen in the context of the choices he faced.
He did not disown the sworn claim of abuse made by Hicks before a British court. "That statement is still before the UK courts, and he swore it under oath," Mr McLeod said. Asked to account for the discrepancy, Mr McLeod said that after five years and four months, Hicks just wanted to get out of Guantanamo Bay. He said he would continue to represent Hicks, whose return to Australia was likely to be in weeks rather than days.
He said the severity of Hicks' sentence was comparable to a drink-driving charge, and public concerns about having Hicks in their midst should take that into account. Mr McLeod would not comment on public fears raised by South Australian Premier Mike Rann that Hicks could be a public danger, but said the fears were being overemphasised.
"If the Premier is concerned about it then there are certain things he can do to address the issue," he said.
■ A lobby group that has been campaigning for Hicks has published an open letter to Prime Minister John Howard labelled "Guantanamo Justice — an affront to Australian values".
The letter by GetUp, in a full-page advertisement in today's Australian, accuses Mr Howard of diminishing Australia by legitimising the "unfair and illegal" Guantanamo commissions and allowing Hicks to be imprisoned for years without trial.
"While you have indicated the result of Mr Hicks' case is a source of satisfaction for you, its implications are a great loss to the people you serve," GetUp tells Mr Howard.