Plea Bargain Highlights Anomalies of Guantanamo System

By Anthony Dworkin

David Hicks, an Australian citizen who was captured in Afghanistan in 2001, will serve nine months in prison after entering a guilty plea before the military tribunal trying his case at Guantanamo Bay, Cuba.  Hicks’ plea bargain marks the completion of the first case before the military commissions, more than five years after President Bush announced the use of such tribunals to try suspects connected to the attacks of September 11, 2001.

The military commissions have been the subject of enormous controversy.  After the U.S. Supreme Court overturned the first version of the tribunals in its decision in the Hamdan case in June 2006, Congress passed the Military Commissions Act (signed into effect by President Bush in October 2006) to re-establish the tribunals on a new basis.  The Military Commissions Act has itself been heavily criticised, and several aspects of the Guantanamo regime are likely to be the subject of further Supreme Court decisions.  In the meantime, however, the Pentagon has resumed prosecutions at Guantanamo.

The completion of Hicks’ case on March 30 was described by the commissions’ backers as a vindication of the new system.  The chief military prosecutor, Col. Morris Davis, said, “There’s a notion this is a rigged system, I think this shows that’s not true.”  A Pentagon spokesman, Commander Jeffrey Gordon, was quoted in the New York Times as saying “it is entirely appropriate that someone who went to Afghanistan to fight alongside al-Qaeda and the Taliban after 9/11 is held accountable for his actions.”

However the course of Hicks’ case and the way it was finally resolved reveal many of the peculiarities of the Guantanamo system.  Hicks pleaded guilty to the charge of providing material support to a terrorist organization and in a statement read out at his sentencing hearing, he admitted that he had received training from al-Qaeda in weapons use, kidnapping and assassination techniques and had conducted surveillance of an American embassy building in Kabul.  As part of the plea deal, Hicks also stated that he had never been illegally treated while in U.S. custody and promised “not to communicate in any way with the media” for a year.  It was also agreed that Hicks will serve most of his sentence in Australia. 

The plea arrangement was concluded between Hicks’ legal representative, Major Michael Mori, and the top official overseeing the commissions, Susan Crawford, without the involvement of any of the prosecution team.  It came after the Australian prime minister, John Howard, had been pressing the United States to resolve Hicks’ case before an election in Australia later this year.

The central anomaly revealed by Hicks’ case is the tension inherent in the Guantanamo prisoners’ dual status as, on the one hand, purported “wartime” detainees held for essential reasons of security, and on the other hand as defendants facing criminal prosecution.  Before his plea bargain, Hicks had already been held for over five years as an “enemy combatant,” confirmed as such by a Combatant Status Review Tribunal (the separate hearing process designed to assess whether detainees can legitimately be held as a security threat).  If his case had gone to a full trial before the military commission, and he had been acquitted, the United States might have continued to hold him as an enemy combatant; if he had been convicted and filed an appeal to the U.S. Court of Appeals for the D.C. Circuit, it would almost certainly have taken longer than the nine months he will now serve.

This situation meant that the commission authorities had enormous coercive power to persuade Hicks to plead guilty and to agree to the other provisions that were attached, such as the restriction on talking to the media for a year about the circumstances of his detention—a provision that has little apparent purpose but to forestall public criticism of the Guantanamo regime.  Under these circumstances, Hicks’ statement that he was not “illegally treated” (in any case, surely, a judgement he is not legally qualified to make) has little credibility, and indeed is apparently contradicted by an affidavit he filed as part of an application for U.K. citizenship, which alleges that he was “hit in the back of the head with the butt of a rifle several times (hard enough to knock me over), slapped in the back of the head, kicked, stepped on, and spat on,” and also had a gun pointed at him, by American interrogators.

In fact there are reasons to question whether Hicks’ prosecution, if it had gone ahead, would have resulted in a conviction that an Appeals Court would have upheld.  At the least, there remain doubts about the legal weight of the charge to which he entered a guilty plea—that of providing material support to a terrorist organization.  Although this is an established crime under U.S. domestic jurisdiction, it has no historic basis as part of the law of armed conflict.  By tradition, military commissions can only try people for violations of the laws of war.  The Military Commissions Act included providing material support to terrorists among its list of the crimes triable by military commission—but a lawyer might argue that if it was not previously a crime under the laws of armed conflict, then defendants could not be convicted before a military commission of this crime for acts they had committed before the Military Commissions Act was passed.

Rather than establishing the credibility of the military commission system, Hicks’ trial might be thought to reveal the commissions as an essentially arbitrary forum, where political and judicial considerations are inextricably intermingled and which allows prisoners to be shuttled back and forth between the twin tracks of “enemy combatant” and “criminal defendant” at the U.S. government’s convenience.

Shortly after Hicks’ sentence was announced, the U.S. Supreme Court announced that it would not for the moment hear two linked cases brought by Guantanamo detainees who sought to challenge another provision of the Military Commissions Act  that removed the right of habeas corpus from detained terrorist suspects.  According to the Act, “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”  However the detainees who brought the case argue that this provision violates the U.S. Constitution which says that habeas corpus may only be suspended in cases of “rebellion or invasion.”  The U.S. government argues that the detainees do not have rights under the U.S. Constitution, and that in any case there are adequate rights of appeal built into the rules governing detention of alleged enemy combatants (who have the right to appeal about the rules governing the Combatant Status Review Tribunals to the Court of Appeals in Washington D.C.)

The D.C. Court of Appeals rejected the detainees’ claim that the Military Commissions Act was unconstitutional, saying that the right of habeas corpus recognized in the Constitution did not extend to enemy citizens held overseas.  This decision was then appealed to the Supreme Court, who announced on April 2 that they would not consider the case.  In rejecting the appeal, the Supreme Court pointed out that the Guantanamo detainees have not used all the legal remedies available to them under the Military Commissions Act, since they have not appealed against the status review tribal procedures as they are entitled to do.  If those appeals are unsuccessful, it is possible that the Supreme Court will eventually be forced to decide what substantive rights the Guantanamo detainees, many of whom have already been held for five years, actually have.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Military Commissions Home Page

U.S. Department of Defense

Denial of Cert in Boumedienne and al-Odah Cases (.pdf file)

Statement of Justices Stevens and Kennedy

U.S. Supreme Court

April 2, 2007

David Hicks' Trial Was a Political Fix by Two Governments

The Age - Opinion

May 21, 2007

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