Australian aims another blow at Gitmo military justice system

“David Hicks didn’t commit any crime,” according to his lawyer Wells Dixon, and that’s why the Australian former Guantánamo prisoner is seeking to overturn his conviction by a U.S. military commission. If he succeeds, Hicks will have dealt a serious blow to the already embattled system created by George W. Bush’s administration to circumvent the U.S. legal system in dealing with Guantánamo detainees.

The Australian who spent almost six years at the island prison after he was sold to U.S. forces in Afghanistan in 2001, in 2007 became the first detainee tried by a military commission. He had been one of three detainees to file the first habeas corpus petitions challenging the government’s authority to hold them without due process — a case they won before the U.S. Supreme Court.

The military commission convicted Hicks of providing “material support for terrorism” after he entered a guilty plea, and sentenced him to seven years in prison — which was reduced to nine months under a pretrial agreement. Following his sentencing, Hicks returned home to serve out his term in an Australian prison.

But Hicks’ lawyer is confident of having the case tossed out.

In the 2012 Hamdan v. United States and 2013 al-Bahul v. United States cases — the U.S. Court of Appeals for the D.C. Circuit courts found that “providing material support for terrorism” is not a war crime, meaning that the military commission lacked jurisdiction to try them.

Because of that, said Dixon, his client’s “guilty plea is not an obstacle” to tossing out the conviction.

Hicks, who had converted to Islam, traveled to Pakistan to study and then on to Afghanistan where he stayed at a training camp. After the attacks of 9/11, the Northern Alliance sold him for bounty to U.S. forces. Following his release, Hicks entered the work force in Australia.

The Australian’s appeal was filed in late 2013 with the U.S. Court of Military Commission Review. Hicks is asking that his case be vacated in light of the Hamdan and Bahul decisions — and his lawyers have continued to pursue legal action in light of other relevant court rulings. The U.S. government is expected to respond in the next few days.

‪If Hicks’ case goes the way Dixon expects it will — “the writing is on the wall for this one” — that will be the latest blow to the military commission system.

Only eight trials have been completed by military commissions — in two cases the defendants are still awaiting sentencing. One of those eight convictions has been thrown out in part; two in full — the most recent being the case against Sudanese Noor Uthman Muhammed, which was tossed out earlier this month. Three convictions are currently under appeal including Hicks and that of Canadian Omar Khadr who was only 15 years old when he was captured in Afghanistan in 2002. (Five of these six men who were sentenced left Guantánamo — only Ali Hamza al Bahlul, whose conviction was thrown out in part, remains.)

The last two men — Majid Khan and Ahmed al Darbi  — have pled guilty, but have not yet been sentenced. 

Khan, who is also Dixon’s client, was among those tortured and imprisoned at CIA “black sites.”

“Majid Khan took a leap of faith. He’s trusted the government … and [has] taken responsibility for everything he has done,” Dixon said, which included pleading guilty to war crimes. Khan is expected to be sentenced sometime in the next year or so. “I fully expect … that he will obtain the benefit of his bargain, which is the strong likelihood that he will be reunited with his family.”

Khan faces a maximum of 19 years from the day he pled guilty, but upon sentencing, there is the chance that he could be released immediately.

The military commissions were established by the Bush administration in 2001 to try  “war on terrorism” captives. The commissions were ruled illegal in 2006 by the Supreme Court for violating the U.S. Code of Military Justice as well as the Geneva Conventions. The court also noted that the commissions had not been authorized by Congress.

But the Bush administration gave the system new life in October 2006 when the Republican-controlled House and Senate enacted the Military Commission Act. President Barack Obama suspended the commissions soon after taking office, but they were revived again by Congress with the Military Commissions Act of 2009, which remains in effect.

Eight men in 14 years have made it through the system. More men — nine — have died in Guantánamo. By contrast, there have been nearly 500 terrorism-related convictions in federal courts since 9/11.

The Obama administration is currently pursuing military commission cases against alleged five co-conspirators in the 9/11 attacks, and against Abdul Rahim al-Nashiri, accused in the 2000 USS Cole attack in Yemen. The defendants have also been plagued by logistical and legal setbacks — including hidden microphones found in rooms where defense lawyers consulted their clients and complaints about the use of female guards to escort the defendants. 

“Guantánamo was designed to be unfair to the defense,” Marine Maj. Derek A. Poteet, who represents Khalid Sheikh Mohammed, wrote via email. “We recently learned that Guantánamo had an informal policy of not allowing witnesses to even speak to the defense.”

On Jan. 26, motions begin in the noncapital case against Abd al-Hadi al-Iraqi, who is arraigned on charges that he led others in unlawful and deadly attacks in Afghanistan and Pakistan. That case could drag on for some time.

Such cases, however, have done little to address the credibility problems facing the commission system.

“The military commissions were a secondary system of justice … set up specifically to deprive these men of the rights of a criminal trial,” said Dixon, a senior staff attorney with the Center for Constitutional Rights. “It was designed from the outset to be unfair,” he said adding that, “this is what happens when you make up a justice system as you go along.”

There have certainly been attempts to improve the system over the years. “I think the commissions have gotten better than they've been, and are generally pretty close to providing most of the rights to which criminal defendants are entitled in our civilian criminal courts,” Stephen Vladeck, an American University law professor, wrote via email. “But ‘pretty close’ and ‘most’ are not the adjectives we should be striving for when we're talking about these issues — all the more so when time has proved just how well, and how efficiently, the civilian courts can handle these cases, and without any of the consequences their critics have feared.”

Hicks, for his part, is seeking vindication. Among the first prisoners taken to Guantánamo, he was tortured and seeks to clear his name. “He simply didn’t commit a crime,” says Dixon. “It’s fundamental.” In the coming days, the U.S. chief prosecutor for military commissions will indicate whether it agrees.