Wednesday, March 28, 2007

H. Candace Gorman on Hicks' Plea

As many of you know, David Hicks plead guilty on Monday to "providing material support" to terrorism. Candace offers her take on the story in this piece (cross-posted at Huffington):

David Hicks, the Australian man that has been held in Guantánamo for five years, (the last year or so in solitary confinement) agreed to plead guilty yesterday. There are a few things you should know about his plea. First, and most importantly, Hicks is pleading guilty to a crime that did not exist on the books until September of 2006.

All of the original charges (the serious ones) were dropped against Hicks because the military had no evidence against him. Mr. Hicks was confined at Guantánamo until a new law could be passed that he could then be charged with. Never mind the fact that our constitution prohibits ex post facto (retroactive) laws, I mean that is why we are holding him at Guantánamo right?
The other thing you should know is what was clear to anyone paying attention: there was never going to be a hearing. The most recent evidence of that was when Hicks stepped into his arraignment yesterday and the first thing that happened was that two of his three attorneys were removed from representing him. Hicks' civilian attorney was removed because he refused to sign a statement agreeing to abide by military rules that had not yet been drafted and another attorney was removed because she supposedly did not have the correct credentials for the commission. That left Hicks with only one attorney, his military attorney, Dan Mori. Although Mori has been doing an exemplary job for Hicks, there was a little cloud hanging over Mori: the prosecuting attorney has suggested that Mori should be
brought up on charges of misconduct for his zealous defense of Hicks. Mori was still trying to figure out how that threat by the prosecuting attorney would affect his representation of Hicks. Mori sought a short continuance to get legal counsel on this issue but that request was denied.

So yesterday, after two of his three attorneys were removed from representing him and the prosecuting attorney was attempting to intimidate the third, Hicks asked the military judge for additional counsel to help level the playing field. That request was denied... leveling the playing field is not what the military had in mind. The writing was clear on the glistening red, white and blue walls of the commission hearing room and David Hicks did the only thing that could possibly make sense in this abhorrent proceeding. He pled guilty to something that was not even against the law when he was arrested. Hicks' only hope is that he will be sent to Australia to serve his sentence and that perhaps, in time, a court in Australia will agree that pleading guilty to a crime that did not exist when he was arrested should be considered a nullity. Only problem is, Australia does not have a constitutional prohibition against ex post facto laws... I wonder if that is how the phrase "kangaroo court' first came to be?

5 comments:

AustinTBG said...

If Hicks was tried in a kangaroo court, should we rename the procedings of American detainees after a ridiculous creature from our own continent? Any suggestions?

Keep up the great work,

Austin, ACSblog

Anonymous said...

This is sick

Adrian said...

Opossums are the most common marsupials in the Americas.

Anonymous said...

Back when I interviewed him in '05, Josh Dratel [one of the two disqualified Hicks lawyers] said he felt the term kangaroo court (when representing an Australian before one!) was too corny... but it's not, of course. Fake justice and preordained outcomes weren't unique to colonial Australia, but somehow, the name "kangaroo courts" actually derives, like the fake justice Hicks is receiving, from the UNITED STATES-- to wit, it is a term used to "try" claim jumpers in good old Wild West gold rush era California... So... I daresay, with those auspicious AMERICAN origins, "kangaroo court" remains a most fair thing to call it.

Frankly, Hicks likely prefers the comparative normality of even a maximum security Australian prison (which he will doubtless not serve a full sentence in if he serves in one all, given what an utter albatross around the Howard government's neck his case represents)... rather than stay any longer down the legal rathole of GTMO than otherwise necessary.

I guess it's time for COl. Davis to trot out OBL's auto mechanic (Hamdan), or perhaps the 15 year old kid (Khadr), or one of the other avatars of evil for yet another try at a show trial, given how successful the Hicks thing has proven...

--the talking dog

curious said...

First, I want to say that I am a die hard, "bomb the Islamo-nutjobs back into the stone age if that is really how they are the most comfortable living" supporter of the war on our enemies. I make no excuses or apologies for this stance after the declaration of war by these murderers on the US on 9/11.

Having let you know where I stand on the war as a whole, I am confused, frustrated, and indignant at the US government's handling of various people captured in the course of conducting this war and the Guantanamo Bay policy in general. This policy is hurting our cause, it serves no useful purpose and anyone with two brain cells looks at what is going on and just shakes their head dumbfounded.

I have read a lot about Mr. Hicks' case, I just don't see how Mr. Hicks is so important to the war that he needs to be kept prisoner.

As far as I understand it, Mr. Hicks crime is that he went to Pakistan "looking" for some way to join "the cause". At first he thought the cause was fighting in Kosovo on the side of the Americans, then he decided to join a group I never heard of before in western Pakistan. I don't think anyone can say with certainty that he actually joined anything or that he actually trained in an al-Qeda camp. The military admits that Mr. Hicks never raised a weapon against the US or its allies. I doubt that Mr. Hicks gave al-Qeda any financial support, it was probably the other way around.

The military refuses to give the details about Mr. Hicks capture - where was he? what was he doing? was he armed? was he part of a military unit or operation? Since they say that he did not raise a weapon against the US or their allies, I am of the opinion that he was in the wrong place at the wrong time but wasn't actually engaged in any activity that you could definitely say made him a threat.

I am upset about this because it hinders our (the US) ability to carry on the war against real threats due to the absurdity of the Guantanamo policies and the outrage felt around the world about them.

Military law makes it really clear what "rights" saboteurs and terrorists have - NONE. If you are captured wearing civilian clothes while caught in the act of committing an act of war, you are a saboteur and you have no rights. Personally, I think saboteurs should be executed on the spot, that is what the US military used to do with them, then you don't have the "what do we do with them now" problem.

I don't think that people caught while perpetrating acts of violence as terrorists or saboteurs or spies of whatever you want to call them deserve a trial of any kind, but I think that people who are detained for "suspicion" of being involved with these people somehow should very quickly either be determined to be a real threat and dealt with very harshly or determined to not be a threat and released or turned over to a civilian court to deal with.

What really confuses me about the ridiculous policy at Guantanamo is why hundreds of years of precedent in dealing with this type of situation (people caught in civilian clothing carrying out acts of war) are not followed? President Lincoln would have had them shot on the spot (if you doubt this just look up Phil Sheridan and the Shenandoah Valley). The US military made up a policy that is unjust, serves no military purpose, raises anger around the world, and is so complicated and convoluted that I doubt they understand it.

If this Hicks character is a real threat then charge him with a serious crime and punish him harshly, if he isnt a real threat send him back to Australia or Pakistan and let the civlian authorities deal with him. Since there isn't any real evidence against him and I don't think he is a threat he would probably be let go if turned over to the civilian authorities.

To create an international incident over the treatment of this man who is in no way a threat to the United States and probably has no information of any use to the military as it continues to wage the war is ridiculous.