“…I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework..”
- President Obama comments on the 2006 Military Commissions Act
Two military commissions systems have been replaced due to their unfairness and lack of conformity with internationally recognised fair trial standards, including the 2006 Military Commissions Act, the process that David Hicks was subjected to.
- The 2006 Military Commissions Act has been replaced due to its unfairness and lack of compliance with international fair trial standards
- David Hicks did not have a trial and was not put before a competent or independent tribunal or regularly constituted court.
- There was no presumption of innocence
- The charges were not promptly delivered- it took five and a half years to be brought to trial
- The charge was invented and not a legitimate war crime
- David Hicks was unable to prepare for his defense – his conversations were monitored, legal papers photographed, limited access to legal representatives
- There was political interference in the process
- The final plea agreement was signed under duress
A Brief History
“The term kangaroo court springs to mind. It derives from the jumps of the kangaroo, and conveys the idea of a pre-ordained arbitrary rush to judgement by an irregular tribunal which makes a mockery of justice.”
- Lord Johan Steyn 2006
Military commissions were first authorised in November 2001 by the Bush administration [i]. Although they are called Military Commissions, they are not modelled on past military systems of justice such as the Uniform Code of Military Justice (UCMJ). The first 2001 military commissions system was ruled unlawful by the United States Supreme Court in the Hamdan case [ii]. The judge ruled that the president had no authority to set up the Military Commissions, and that they were illegal under both military law and fair trial procedures under the Geneva Conventions. The judge also noted that the structure of the Commissions violated the UCMJ and the 4th Geneva Convention. Chief Justice Stevens noted that the executive is bound to the rule of law and does not hold a blank cheque.
Yet instead of releasing detainees or charging them through the US federal courts system, the Bush Administration chose simply to tweak the legislation that enabled the military commissions, so he passed the 2006 Military Commissions Act.
“. . . the MCA contains a number of provisions that are incompatible with the international obligations of the United States under human rights law and humanitarian law.” [iii]
- Martin Scheinin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The 2006 Military Commissions Act had as many flaws as the first. It allowed retrospective charges, hearsay evidence, evidence obtained under coercion, and allowed the Secretary of Defense to alter the rules of evidence. The Act did not comply with international fair trial standards. For more information click here.
Air Force Col. Morris Davis was Chief Prosecutor for the Office of Military Commissions from September 2005 until 5 October 2007. Davis resigned upon the realisation that “full, fair and open trials were unlikely” [iv]. This was shortly after he received a memo from Deputy Secretary of Defense Gordon England outlining a chain of supervision which left Haynes (Department of Defense General Counsel) ultimately overseeing the Chief Prosecutor [v]. Davis stated that it was not the Act that led to injustice, but the way the legislation was subsequently manipulated. Davis holds that the military commissions can only regain credibility if four main deficiencies are addressed:
- Put the military back into military commissions and take the politics out
- Ensure the independence of each component in the military commission process
- Make openness and transparency of the proceedings an imperative
- Expressly reject the use of evidence obtained under undue coercion
“The Howard Government is devaluing our citizenship with its support for the trial of David Hicks by a US military commission at Guantanamo Bay, Cuba.”
- Attorney General, Robert McClelland 2003
“Australia’s international standing and moral authority has been diminished by its support of a process so obviously at odds with the rule of law.”
- Lex Lasry QC, the independent observer for the Law Council of Australia
The military commissions were used as a tool for Pentagon officials to prosecute high-profile detainees [vi]. Another source has talked of the top-down approach to the commissions, with the US Administration directing their parameters [vii]. Some blame the Pentagon, others the Department of Justice, either way the goal has been political value rather than maintaining the processes of justice [viii].
Former Vice President Dick Cheney was directly involved in Hicks’s plea deal, allegedly in response to an agreement the Vice President had with former Prime Minister John Howard [ix]. The day after the Australian Government met with officials from the Department of Defense and the Department of Justice, Davis received a call from Jim Haynes on 9 January 2007 specifically enquiring about David’s case and pushing for him to be charged. At that point, there was no Manual for Military Commissions, no Regulation for Trial by Military Commission, no Convening Authority and no trial judges [x]. The Manual was published on 18 January 2007. Susan Crawford was appointed as the Convening Authority five days after David was charged by the Office of Military Commissions [xi]. Crawford was a political appointee, not a military officer as is the case in courts-martial [xii]. The Regulation was published 27 April 2007, well after David’s case was concluded [xiii]. Colonel Morris Davis has since commented that if it were up to him, David Hicks should never have been charged [xiv].
“The ‘trial’ of David Hicks, which took place in March 2007, was a charade. Australia’s international standing and moral authority has been diminished by its support of a process so obviously at odds with the rule of law.”
- Lex Lasry QC, the independent observer for the Law Council of Australia [xv]
David Hicks did not have a trial: the conditions of his return to Australia were already agreed upon before the military commissions hearing took place – the plea agreement was reached. The delay of the trial of David Hicks was far too long, and rather being due to legitimate legal considerations, it was a purely political process.
Lex Lasry QC made the following observations of the proceedings;
“Many of the requisite rules and procedures were not in place and the there was a degree of improvisation by the Judge. This led to a situation where there appeared to be a preference for advancing the case and dealing with matters of substance by way of private conferences between the Judge and the parties. These conferences occurred away from public scrutiny, where no rules were necessary. Issues were resolved and then the outcome was presented to the public as something of a fait accompli. This carries obvious implications for transparency and raises questions regarding due process.
Further, it now appears that at the time that matters were being played out in the Military Commission hearing room on Monday 26 March 2007, the pre trial agreement in relation to Mr. Hicks’ plea of guilty had already been finalised. Thus, much of what was occurring was contrived and being done for public and media consumption. Even Hicks had a speaking role to play which he discharged at the appropriate time.”
The International Covenant on Civil and Political Rights (ICCPR) goes to great lengths to provide the standards of a fair trial. Many of these criteria were absent in the military commissions.
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.” (ICCPR Article 14(1)).
Guantanamo detainees are caught in an unfair system. Hearings are conducted behind closed doors on the basis of national security. The military commissions could not be considered independent and impartial since the prosecution, defence and convening authority (adjudicator) are all part of the one system, and that system was placed within a chain of political command [xvi]. Figures in the Department of Defense and Department of Justice pushed for convictions of certain detainees with “strategic political value” [xvii].
“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” (ICCPR Article 14(2)).
From the very beginning, David was assumed guilty. His very presence in Guantanamo Bay was taken to confirm that he was a dangerous individual. The Howard Government also contravened this principle of justice, in publicly stating that David was a member of al-Qaeda and “dangerous” before David had been tried [xviii]. There was no room for acquittals in the military commission [xix].
Rigged to Secure Convictions
“If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals- we’ve got to have convictions”
- William Haynes, 2nd October 2005
Three prosecutors resigned claiming that they had witnessed criminal conduct in the military commission’s prosecution office, that the commissions were rigged to secure convictions [xx], and that evidence supporting the detainees’ innocence was destroyed and false evidence was created to implicate them [xxi].
“When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused, instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”
- Captain John Carr U.S. Military
Article 14(3) of The International Covenant on Civil and Political Rights (ICCPR) reads:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
- (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
- (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
- (c) To be tried without undue delay;
- (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistances, of this rights; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court;
- (g) not to be compelled to testify against himself or to confess guilt.
Everyone has the right to have their conviction reviewed by a higher court (ICCPR Article 14(5)). If a conviction has been reversed or a convicted person is pardoned because there has been a miscarriage of justice, the convicted person shall be compensated for any punishment they have endured due to the conviction (ICCPR Article 14(6)). Finally, nobody shall be tried or punished for an offence they have already been convicted or acquitted of (ICCPR Article 14(7)).
The Invented Charge
The charge was invented and retrospectively applied. After the Hamdan ruling, the court ruled the system illegal, and that the charge conspiracy was not a war crime, so all charges were dropped [xxii].
In a second attempt, David Hicks was formally charged with Material Support for Terrorism in 2007. International law experts condemned the charges because they were yet again, invented crimes, and not in conformity with established international law standards.
“The suggestion that the offence of Providing Material Support for Terrorism under the MCA is merely a codification of an existing Law of War or an existing domestic law of the United States, and is therefore not a retrospective criminal law, is untenable. This is a recently invented and new war crime created with the passing of the Military Commissions Act of 2006 on 17 October 2006.” [xxiii]
The invented charge had two counts- one was that David associated with a terrorist organisation, and the second was that he actually provided material support for a terrorist act. This second count was dropped, due to the fact that they had no evidence to accuse him of such. Lex Lasry QC, the independent observer for the Law Council of Australia, noted;
“There were essentially two counts to the charge against David Hicks. In effect, Hicks pleaded guilty to an allegation of association and training with a terrorist organisation. He did not plead guilty to an allegation of providing material support for a specific terrorist act and this allegation was not pursued.”
In the end, after calling David Hicks the ‘worst of the worst’, there was no charge that accused him of hurting anyone, attempting to hurt anyone, planning to hurt anyone, or supporting terrorism – including an act or a terrorist group. The charge is now before the Military Commissions Appeal court. There was significant debate as to whether to include it in the new 2009 Military Commissions Act. Two members of the armed forces were particularly critical of the charge. See, Senate Armed Services Committee, 7th July, 2009. David Kris testimony; and Jeh C. Johnson’s testimony.
Retrospective Criminal Laws
The 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War states:
“No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by International Law, in force at the time the said act was committed.” (Article 99)
The crime of which David was charged, providing materials support for terrorism, is not a crime under international law. It became an offence in US law in 2006, five years after David was detained by the US and six years after the alleged conduct had taken place.
The Law Council of Australia has been particularly concerned about David’s case. They have raised the following issues publically;
- The inability of Hicks to effectively challenge the legality of his detention;
- Hicks’ treatment in detention;
- The flawed and inherently unjust rules of procedure and evidence of the military commissions;
- The lack of any legal foundation for the charges initially pursued against Hicks;
- The retrospective nature of the charge eventually pursued against Hicks;
- The acquiescence of the Australian Government in Hicks’ detention without charge;
- The acquiescence of the Australian Government in Hicks’ trial before a military commission;
- The terms of Hicks’ plea agreement; and
- The unnecessary imposition of a control order on Hicks upon his release.
The Plea Agreement
The Chief Prosecutor, Colonel Morris Davis, had intended to arraign David on 26 March 2007, but was informed the morning of the arraignment that the Convening Authority, Susan Crawford, had reached a deal with the defense on 23 March: David would plead the Alford Plea to the charge ‘providing material support for terrorism’, be transferred to Australia within 60 days of his sentencing, and he would serve 9 months in jail with any time sentenced beyond that to be suspended [xxiv]. David returned to Adelaide on 20 December 2007 and was imprisoned in Yatala Labour Prison for seven months before being released on 29 December 2007 [xxv].
“[David’s] plea of guilty was the product of an inherently oppressive and coercive system. The agreement reflects a view on the part of the US authorities that liberty is not a right that may only be denied a person in accordance with strict procedure established by law, but rather liberty is a bargaining chip that the State may use to avoid accountability and buy impunity.”
- Lex Lasry QC, the independent observer for the Law Council of Australia
The plea agreement included a 12 month gag order that expired after the Australian elections. David also had to sign away his right of appeal and to say that he had not been tortured or ill-treated during his time in US military custody. Download the Plea Agreement here.
The Alford Plea
It has been wrongfully reported that David confessed or admitted to supporting terrorism. In fact, David’s legal team submitted what is termed an Alford Plea. This is a U.S. based plea in which an accused person can agree to plead guilty whilst maintaining innocence. Cornell University Law School defines the Alford plea (available here) as:
“Also known as a ‘best-interests plea,’ an Alford plea registers a formal claim neither of guilt nor innocence toward charges brought against a defendant in criminal court. Like a nolo contendere plea, an Alford plea arrests the full process of criminal trial because the defendant — typically, only with the court’s permission – accepts all the ramifications of a guilty verdict (i.e. punishment) without first attesting to having committed the crime. The name, Alford plea, is taken from North Carolina v. Alford 400 U.S. 25.”
Other Issues – Jurisdiction and “Unlawful Enemy Combatants”
Lex Lasry QC, the independent observer for the Law Council of Australia, notes that:
“As a further example, in order to establish that the military commission had jurisdiction to hear the charge, the Judge was also required to be satisfied that Hicks was an “alien unlawful enemy combatant”. The Judge simply accepted the assertion in the agreed statement of facts that Hicks was an alien unlawful enemy combatant and had been found to be such by the Combatant Status Review Tribunal (CSRT). This assertion proved to be inaccurate. While Hicks had been found to be an “enemy combatant” by the CSRT he had not been found to be an “unlawful enemy combatant”. In two subsequent Military Commission trials, this has led to the dismissal of charges against the accused, albeit without prejudice.”
Although David Hicks had already been told he would be back in Australia in 60 days, and the plea agreement had already been agreed to, the military commissions sentence handed down the maximum term of 7 years, some would say in an attempt to show some legitimacy. They suspended six years and three months, so that he would only serve nine months and he could do this in an Australian prison. David did not receive any credit for time served.
“The prosecutor simply invited the members of the Commission to sentence David Hicks for being a terrorist and in that way, to hold him accountable for international terrorism in general. Further, the prosecutor encouraged the members of the Commission to be particularly mindful of the types of crimes David Hicks might have committed if he was not captured and the types of crimes he would always be capable of committing because he is a terrorist.”
- Lex Lasry QC, the independent observer for the Law Council of Australia
David is still under a suspended sentence until 2014.
David Hicks was suicidal at the time that the military Commissions hearing took place. He was hardly in a clear state of mind after being subjected to years of abuse. David states in his book that he just wanted to get out of Guantanamo Bay, and would have done anything to do this- including take part in a flawed commissions process.
More Information is Available from the Following Sources:
Brian Walters & Neil McAteer, ‘Note on International Human Rights Law for Counsel for David Hicks’. Available here.
Martin Scheinin, ‘Preliminary Findings on Visit to United States by Special Rapporteur on Promotion and Protection of Human Rights while Countering Terrorism’, UN Press Release, 29th May, 2007. Available here.
Scott Horton, ‘At Gitmo, No Room for Justice.’ Harpers Magazine, October 22, 2007.
Tim McCormack, ‘David Hicks and the Charade of Guantanamo Bay’, Melbourne Journal of International Law, 8(2), 2007. Available here.
[i] President’s Military Order of Nov. 13, 2001.
[ii] Hamdan v Rumsfeld , Secretary of Defense 548 US (2006).
[iii] ’ See, Martin Scheinin, ‘UN Expert on Human Rights and Counter Terrorism Concerned that Military Commissions Act is now Law in United States’, UNHCR Press Release, 27th October, 2006. Available here.
[iv] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 1.
[v] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 10.
[vi] Air Force Col. Morris Davis, in Josh White, “Ex-Prosecutor Alleges Pentagon Plays Politics” Washington Post (20 October 2007).
[vii] Scott Horton, “At Gitmo, No Room for Justice”, Harper’s Magazine (22 October 2007).
[viii] Scott Horton, “At Gitmo, No Room for Justice”, Harper’s Magazine (22 October 2007).
[ix] Scott Horton, “At Gitmo, No Room for Justice”, Harper’s Magazine (22 October 2007).
[x] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 7.
[xi] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 8.
[xii] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 8.
[xiii] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 8.
[xiv] Colonel Morris Davis spoke at Salim Hamdan’s trial where he said this. Leigh Sales, ‘Hicks should never have been charged: former US prosecutor’, ABC News, 29th April, 2008. Available here.
[xv] Lex Lasry, ‘David Hicks v the United Sates: Summary of the Report of the Independent Observer for the Law Council of Australia’, 24th July, 2007. Available here.
[xvi] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 11-12.
[xvii] Josh White, “Ex-Prosecutor Alleges Pentagon Plays Politics”, The Washington Post (20 October 2007); House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 6.
[xviii] The Hon. Alastair Nicholson et al, “Opinion: David Hicks, Military Commissions Act 2006, Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law” (20 November 2006).
[xix] Scott Horton, ‘The Great Guantanamo Puppet Theatre’, Harpers Magazine, February 21, 2008. Available here.
[xx] Emails from Major Robert Preston and Captain John Carr.
[xxi] General Geoffrey Miller claimed that interrogations were deliberately not recorded because it might provide evidence favourable to the detainees; however, every interrogation was filmed. Not only evidence to help detainees was destroyed, but also evidence of torture and ill-treatment. See, Lt-Cmdr William Kuebler’s comments, “Pentagon Urged Notes Destroyed”, BBC News (9 June 2008); Glenn Greenwald, “Mohammad Jawad and Obama’s Efforts to Suspend Military Commissions”, Salon (21 January 2009); Scott Higham, Joe Stephens, Margot Williams, “Guantanamo – a Holding Cell in War on Terror”, The Washington Post (2 May 2004).
[xxii] Advice: In the Matter of the Legality of the Charge against David Hicks (8 March 2007) at 2.
[xxiii] The Hon. Alistair Nicholson QC, Peter Vickery QC, Hilary Charlesworth, Andrew Byrnes, Gavan Griffith, Tim McCormack, Gideon Boas & Don Rothwell, ‘Advice in the Matter of the Legality of the Charges Against David Hicks’, 8th March, 2007. Available here.
[xxiv] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 9.
[xxv] House Armed Services Committee, ‘Prepared Statement of Morris D. Davis’, Hearing on the Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba, 30 July 2008 at 9.