Howard's Gitmo woes now a Labor liability THE weaknesses in the laws that were used against David Hicks in Guantanamo Bay caused untold damage to the Howard government. But every dog has its day. In an exquisite reversal of fortune, the weaknesses in Labor's changes to the Proceeds of Crime Act mean the adventures of Hicks look like inflicting a fresh round of damage, this time on Labor. In his article in these pages, opposition legal affairs spokesman George Brandis is daring the government and its law enforcement agencies to do something that sounds fairly uncomplicated: enforce the law. Brandis is urging them to use the Proceeds of Crime Act to strip Hicks of royalties he has received from a book. That book would not exist but for the actions that led to Hicks becoming a convicted supporter of terror. The problem for the government is that whichever way it jumps on this issue, it's in for trouble. First a little background. Soon after Labor came to office, it changed the Proceeds of Crime Act and declined to update an outdated clause that has informally been described as the David Hicks Provision. It gave explicit recognition to decisions of the first generation of US military commissions dealing with inmates at Guantanamo Bay. Hicks was convicted under the second generation of military commission, which relies on statutory authority, unlike the first generation which was created under executive order. Attorney-General Robert McClelland did not consider it necessary to update the Hicks Provision -- he simply removed it. That means it is up to a judge to decide whether the Hicks conviction should be recognised as a basis for an order under the Proceeds of Crime Act. The opinion-makers in the judiciary and the profession as a whole detest both generations of US military commissions. The Americans who designed both systems did not cover themselves in glory. So there is a real risk that federal legal action to strip Hicks of his profits will be thrown out of court. If that happens, it will be a catastrophe for the government: it will be seen as proof that Labor weakened the Proceeds of Crime Act in a way that enabled Hicks to keep his royalties. More importantly, it could open the way for Hicks to become extremely rich at taxpayers' expense. If Hicks wins in court on the proceeds of crime action, it could be because an Australian court had cast doubt on the validity of the conviction in Cuba. As soon as that happens, how long would it be before Hicks lodges a compensation claim for the time he spent imprisoned in Adelaide as part of his plea agreement with the Americans? If the conviction is viewed as invalid under Australian law, it would mean that the federal government had no legal basis for for keeping him in prison. That nightmare is exactly the sort of scenario federal authorities -- and Hicks and his lawyers -- must now be grappling with. And if it comes to pass, most of the blame will rest with those who advised the federal government that it was perfectly safe for the Proceeds of Crime Act to operate without an updated version of the Hicks Provision. That decision looks like coming back to haunt the government, just as the weaknesses in the US military commissions haunted the Howard government. In order to remain consistent, the federal law enforcement agencies have little choice but to do what Brandis is urging them to do: enforce the law.