Press Release from the Law Council of Australia

3 April 2007

Heaven Help Those Left in Guantanamo Bay

David Hicks’ guilty plea and sentencing deal have done nothing to legitimise the process to which he was subjected, the Law Council said today.

Law Council President Tim Bugg said, “David Hicks’ detention for nearly five and a half years without access to rights we regard as essential for all suspected criminals, whether petty or monstrous, had nothing to do with justice and everything to do with politics.”

“From the very beginning Mr Hicks was a pawn in a political game played ruthlessly for advantage in both the US and Australia. The Howard Government’s complicity in his detention in a legal black hole beyond the reach of anything resembling an impartial or independent judicial system marks a low point in Australian political life.”

Mr Bugg said the Australian Government’s early determination to demonise Mr Hicks saw him initially imprisoned without access to a lawyer or charges for the first two years of his detention.

“Two adverse US Supreme Court decisions and numerous other forced changes to the military commission process didn’t shake the Government’s confidence in the process. Only when opinion polls made it clear that Australians thought he was getting unjust treatment did any imperative emerge to fix the issue,” Mr Bugg said.

“The US Government’s determination to save face, avoid accountability and secure impunity for its officials is matched for self-interest only by the Australian Government’s enthusiastic acceptance of the plea deal.”

The plea deal itself says that the five years and four months Mr Hicks spent in detention count for nothing. “Those who accept this, as the Australian Government obviously does, accept that the US Executive should have judicially unsupervised powers to detain indefinitely without charge anyone, arrested anywhere. They blindly accept this power is necessitated by a rhetorical war, with no defined battlefield and no obvious end or beginning, in which the enemy is whoever the US Executive says it is,” Mr Bugg said.

“Mr Hicks’ nightmare is nearly over because it became politically imperative for it to end. Heaven help those in Guantanamo Bay without someone to stand up for their rights. The US and Australian governments clearly won’t be coming to their aid,” Mr Bugg concluded.

Media Contact: Elenore Eriksson

New on Huffington Post:

Over the weekend we learned that David Hicks would be sentenced to not twenty years, not seven years BUT NINE MONTHS in the slammer. Candace digested this news on Huffington Post.

Here are some highlights:

First we were told that under the plea deal Hicks would probably get less than the 20 years he was eligible for. Can't accuse them of lying about that one can we? I mean nine months is less than 20 years. The fact that it was shocking that Hicks could be eligible for a 20 year sentence, when the crime that he pled guilty to was not even a crime until six months ago, was not mentioned by those congratulating themselves on the plea.

The following day our benevolent military announced that Hicks would probably be sentenced to less than seven years and that most of the sentence could be carried out in his home country of Australia. Ah yes, less than seven years: nine months is that. Finally, on Friday night, the military finally got around to releasing the actual deal that was made just in time for the Saturday paper that no one reads (except those of us who want to know what the Bushies are trying to bury). Now we know that Hicks' pled guilty in return for a nine month sentence and that the deal was made that very first day, when the plea was announced.

So what did Hicks admit to? Most of his "admission" actually has nothing to do with what he did, but has everything to do with what he promises not to do: Hicks promises not to sue the US; not to talk about the torture he received; not to talk to the press for one year (coincidently not until after the Australian elections) and, he promises that he will never suggest that he pled guilty just to get the hell out of Guantánamo.

More on David Hicks

Writing for the The Justinian, "Australia’s most revered and disturbing law journal," Roger Fitch offers his take on the recent "confession" and other developments in the David Hicks story.

The article is password protected, but here are some juicy bits:

Under a plea agreement, David Hicks will be repatriated to Australia to serve out what remains of a nine-month term (after most of the seven year “sentence” has been reduced by pre-agreement).

Nevertheless, he will be confined in an Australian prison for committing an “offence” for which the Australian government could never have jailed him and which many predict the US Supreme Court will strike down.

On Australian Prime Minister and foe of Barack Obama, John Howard:

Even before the ink had dried on the original draft of David Hicks’ “Offer for a Pre-trial Agreement”, John Howard was looking like a loser in the affair. As Amnesty’s observer, lawyer Jumana Musa noted, the stage-managed “trial” only proved one thing: that the new military commissions were good at inducing guilty pleas.

True enough, the terms of the agreement conveniently prevent Hicks being freed from jail or speaking out before the Australian election later this year. That may not be enough, however, to stop Howard’s shabby treatment of Hicks over the years becoming an issue in your election.

And what’s the political value of a (coerced) conviction without a trial, for a crime that’s not really a crime? What’s the point of a show trial without the show? Stalin would have managed things better.

Strangely enough, John Howard’s philosophy is the same as Stalin’s: no man, no problem. With an election due, David Hicks had to disappear; the PM must think that a jail in Australia will accomplish that.

- Adrian Bleifuss Prados

The Talking Dog on Hicks, the Military Commissions and the Origins of "Kangaroo Justice" (a re-post):

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

Colonel Moe Davis Takes a Page from Ho Chi Minh's Playbook

The Military Commissions Chief Prosecutor, Colonel Moe Davis (known for his six-point plan for manipulating the media,) was interviewed this morning on an Australian radio program. You can either play a real audio stream of the entire program or download an mp3 file of the segment.

This is our favorite quote:

During the Vietnam War we had Americans who were detained by the Vietnamese for more than 9 years, they were never charged, never set foot in a courtroom. So I dont apologize for, um, the fact that it has been 5 years in this case - it's regrettable and but he is going to get his day in court and a fair trial.

- Adrian Bleifuss Prados

P.S.: Eric Freedman alerts us to a recent piece of news; Vietnam has
abolished the practice of holding national security detainees without trial.

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?

More on David Hicks:

Our hero, Major Mori, reports that David Hicks was sedated last month by his jailers. Guantánamo's inmates have long maintained that they have been forcibly treated with sedatives and other psychoactive drugs.

Hicks' father, Terry Hicks, hopes to attend his son's military commission appearance.

- Adrian Bleifuss Prados