Last week, headlines in U.S. newspapers proclaimed a “guilty plea” in the case of Australian cowboy and kangaroo-skinner turned soldier of fortune, David Hicks. On Friday the facts surrounding what had happened became much more clear. Hicks had entered into a plea bargain arrangement under which he agreed to plead guilty on a charge of material support and will serve a term of nine-months in prison, back in Australia. Hicks will likely go free by Christmas of this year.
One of the most astonishing aspects of the plea bargain is that it was not struck between Hicks' counsel and the prosecution—as would normally be the case—but with Susan J. Crawford, the senior status military appeals court judge who serves as "convening authority" for the case. Crawford is a protégé of Vice President Dick Cheney, a fact of considerable interest considering that Australian Prime Minister John Howard is known to have turned to Cheney in an effort to speed up the process and relieve pressure on him coming from the Hicks case in view of rapidly approaching elections.
Even without this latest tidbit, the Hicks case was extremely revealing of the operations of President Bush's new military commissions. The proceedings began in a tumult as the military judge ruled that two of Hicks' three defense counsel could not appear on his behalf. One, noted New York criminal defense lawyer Joshua Dratel, had agreed to abide by counsel rules issued up to that point, but would not agree to abide by rules that had not yet been issued. (Had he done so, in fact, he would have been breaching ethical duties.) Motions made by the defense were rejected without any apparent deliberation.
In the kabuki theater that surrounded the plea bargain, a sort of mock trial was convened. The opening argument of the prosecution seemed to be something out of Samuel P. Huntington's The Clash of Civilizations. Hicks was described as an “enemy who wanted to kill Americans” (whereas the convening authority had, prudently, denied the prosecution permission to bring exactly that charge for want of evidence).
The only evidence available against Hicks consisted of his own testimony and that of other Guantánamo inmates, all of which would have been subject to challenge on the grounds that it was coerced. Military procedure requires a court presented with a plea bargain to find that evidence establishing each element of the crime charged exists. Therefore implementing the plea bargain, Hicks stated that the testimony was not coerced and accepted it.
Plea bargain agreements frequently have very little to do with the truth, but this one, following the pattern established in the case of John Walker Lindh, seems to have suppression of the truth as its major objective. Hicks has been required to agree that he will make no statements about what was done to him from the point of his detention until his departure from Gitmo for a period of one year. The agreement also contains provisions designed to frustrate Hicks from publishing any account of his experience in U.S. captivity.
In the end, the Hicks case paints a very sordid portrait of the Bush military commissions. His case was rushed forward for transparently political reasons: Australian Prime Minister Howard was facing growing anger among Australians over the Hicks case, and he acknowledges pressing the U.S. to bring the case on early and to bring it to a quick conclusion. This explains why the case was convened before the military commissions rules had even been completed.
Saturday morning I interviewed Hina Shamsi, a lawyer with Human Rights First who monitored the proceedings in Gitmo this week. “This was a train hurdling towards a preordained judgment from the outset,” Shamsi said, “driven by overtly political considerations, particularly concern for a U.S. ally in a difficult electoral jam at home. The proceedings had none of the hallmarks of fair practice. The rules were not even available, leading the court to make all kinds of ad hoc decisions which all seem keyed to the rush towards a preconceived result.”
Secretary of Defense Robert Gates and Secretary of State Condoleezza Rice are reported to have lobbied President Bush to close down Gitmo. Among the arguments they presented was this: given the terrible reputation of Guantánamo around the world, no one would associate what the military commissions did there with any sort of justice. The Hicks case has proven Gates and Rice correct—this is another grave stain on America's reputation for justice.
As Sydney's The Age observes:
Has Hicks' plea validated the existence of Guantanamo Bay or the process by which its detainees have been treated? No. Has justice been served? No.
What then have the past five years come to symbolise? That is the easy part: a bough breaking.
The image could not be better chosen. America's Founding Fathers marked their homes by planting a tree near the door. The tree was taken as a symbol of liberty and the values of the revolution. Bit by bit that tree is being taken down.
