The Hicks Fix
Submitted by International A... on April 16, 2007 - 7:37pm.
International Affairs
"The Hicks Fix"
By Phoebe in Sydney
Well, I think the first thing Congress should do is repeal the Military Commissions Act. I’m very disturbed that a number of people who are looking at the highest office in the land have supported an act which advertently or inadvertently authorizes the admission into evidence of information gained through torture. That's not the America that I believe in. And the America that I believe in doesn't detain people indefinitely without charges.
Wes Clark, Democracy Now Interview, Mar 2, 2007
Several times during the proceedings on 30 March, Colonel Kohlmann asked David Hicks to affirm that he had not been pressured or coerced in any way into making his plea. Each time, Hicks answered that he had not. Nevertheless, Amnesty International questions whether a guilty plea made by a detainee held for more than five years in indefinite and virtual incommunicado military detention, thousands of miles from home, without judicial review, and facing the possibility of a life sentence after an unfair trial by military commission, can be considered to have been made voluntarily.
Amnesty International “USA: Another Day In Guantanamo
David was - yeah, you could tell he was - he was desperate. He wanted to - he - he's had enough. He just wanted to get out of the place.
David Hicks’s father, Terry
A TORTUROUS QUESTION
How much torture would it take before you’d be prepared to say you were never tortured just so the torture would stop?
This is only one of many questions that are left unanswered by David Hicks’s decision to plead guilty to “giving material support to terrorists” at a US military commission at Guantanamo Bay last month.
A guilty plea to the only charge left standing against him after other more serious charges had been dropped, effectively earned Hicks a ticket out of Gitmo back to Australia where he’ll serve nine months in prison, probably in his home state of South Australia where family and friends can visit him. Probably in a cell where they actually turn the lights out at night. After more than five years of indefinite internment cut off from the world without trial and, for much of the time, without even knowing if or when there’d be a trial or what the charges would be, the prospect of nine months in the Australian prison system must seem like luxury. Certainly not the worst deal for someone who was allegedly among “the worst of the worst”, as Donald Rumsfeld once famously described the inmates of Guantanamo. On so many different levels, the outcome of this case makes no sense and has raised eyebrows, and questions, in the US:
If Mr. Hicks was such a formidable terrorist, why was he allowed to plea bargain his way to a slap on the wrist? If he was not a terrorist, which seems more likely, why was he allowed to rot in Guantanamo for five years before pleading to a crime he didn't commit just to get out off the island? As part of the plea agreement, Mr. Hicks was required to assert that he had not been tortured during his five-year ordeal, but he had already claimed that U.S. forces had abused him in Afghanistan. Given the documented incidents of physical abuse by American forces in both Afghanistan and Iraq, it is easier to believe the claims that came prior to his plea bargain. Berkshire Eagle editorial “More Kangaroo Justice”
And in Australia:
Hicks the man federal ministers verbally convicted years before he was even charged and the chief United States military prosecutor labelled a "dangerous terrorist" will now be walking free on New Year's Day.
The question has been asked once or twice already but not adequately answered: if he's so dangerous, why will he be free? And if he's not, why exactly was he locked up for five years without charge? ”Hicks Hovers in a Haze” Canberra Times
The inconsistency of Hicks being treated as such a threat to society for five years and then being given a suspended sentence that will see him freed before the beginning of next year is one puzzling aspect of the case. But the terms attached to his sentence are equally interesting.
It’s worth noting the ‘t’ word (torture) isn’t actually mentioned in the terms of the pre-trial agreement Full transcript of agreement
What Hicks declared was that he’d never been treated “illegally” by his US captors. Given the way the Bush administration has tinkered with the definition of torture and the laws defining it, perhaps agreeing he’d been treated in a way the US regards as ‘legal’ isn’t quite the same as declaring he’d never been tortured.
His US Marine defence lawyer, Major Michael Mori hinted at some kind of fine distinction in an interview on Australian television after the case had gone before the commission.
KERRY O'BRIEN: But in particular the claims of torture - how do you feel about your public advocacy, your very strong and sometimes emotive advocacy, that David Hicks had been tortured?
MICHAEL MORI: Well, no, I've never said he was tortured. I always avoided that. A lot of people try to use the torture word and I've always tried to avoid that because that's a legal term that's difficult. You know, obviously I explained or raised concerns about his treatment.
KERRY O'BRIEN: Abuse?
MICHAEL MORI: Yes, I've used that term. At this point, part of the pre-trial agreement was that David assert that he had never been illegally mistreated.
I suppose one could read into Major Mori’s words the possibility that Hicks was legally mistreated.
Of course, Hicks’s lawyers had provided an affidavit to to a British court outlining the abuses he’d suffered in US custody. (Hicks’s mother was English, and he’d been trying to get British citizenship as another means of escape from Gitmo – Britain having deemed the detention centre illegal had refused to allow any of its citizens to be held there.)
He says he was slapped, kicked, punched and spat on, could hear other detainees screaming in pain, saw the marks of their beatings and had a shotgun trained on him during interrogation.
"I realized that if I did not cooperate with US interrogators, I might be shot," he said.
The affidavit also includes Hicks's claim that he was twice taken off a US warship, flown to an unknown location and physically abused by US personnel for a total of 16 hours.
Two American investigations have found that claim unsubstantiated. Hicks feared interrogators would shoot him
In an interview with the Australian Broadcasting Corporation the former chief of staff to Colin Powell, Colonel Lawrence Wilkerson, makes it clear what he thinks of these American investigations:
I think they're a farce. I think they're a farce. I know this kind of abuse happened. I've talked to people who participated in it - CIA, military and contractor.
IS THE GAG THE PUNCHLINE?
The other condition of the plea bargain that Hicks accepted was that he would not speak to the media for 12 months.
The deal was simple: Go home. Shut up. If you dare to say you had no choice but to plead guilty, the US Military Commission will find you guilty of perjury and will call in a full seven-year sentence, over and above the five you've suffered unconvicted and uncharged. A Trial that was Uncomfortably close to Stalinist Theatre
Interestingly there’s now quite a bit of debate about whether this “gag order” can actually be enforced and the Australian attorney-general says he doesn’t believe Hicks could be extradited if he exercises his right to free speech under Australian law. We can’t enforce Hicks media gag: Ruddock
It’s also been pointed out that the gag deal keeps Hicks quiet until after the Australian election due before the end of the year. Not surprisingly, the Howard government strenuously denies that it had anything to do with that provision in the plea bargain. We didn’t gag Hicks: PM
In fact, conveniently, an American Brigadier-General Thomas Hemingway said the gag was entirely his idea. Hemingway is the legal advisor to the military tribunal convening authority.
EVERYONE’S A WINNER
Hemingway is quoted in one article about the case as saying he was always mindful of “the best interests of the United States, the best interests of Australia” during negotiations with Hicks’s marine lawyer, Major Mori. A Deal, A Whimper, Game Over
This same Sydney Morning Herald article asserts that, despite their denials, the Howard government had some influence on the resolution of the case.
Howard's defense is an insistence that his Government neither asked for the conditions, nor requested the short sentence for Hicks. But while it may not have directly ordered a nine-month sentence, the Australian Government, its ministers and diplomats, certainly had an abiding influence over proceedings.
-snip-
Ever since the Hicks case became a damaging political issue last year, there was the unashamed push by Howard to get the Hicks trial dealt with speedily. This had a large influence on the US, forcing it to push Hicks to the front of the queue. His trial proceeded even though all the regulations governing proceedings hadn't been promulgated. The military commission system was simply not ready for a trial, a fact illustrated by the banning of two of Hicks's lawyers from the courtroom.
Col. Lawrence Wilkerson doesn’t have much doubt about Australian politics playing a role in the outcome:
I'm not naive. I know that they probably worked out - I'm quite sure they worked out - a plea bargain, that would allow the United States to appear to have effected a reasonably fair proceeding, would allow David Hicks to return to Australia, and satisfy Prime Minister Howard's needs.
Many media sources, including Time Magazine, trace the line of influence back to vice-president Dick Cheney, who visited Australia earlier this year. The head of the convening authority for the military commissions, just happens to be Susan Crawford, a former Cheney staffer.
Hicks's internment at Guantanamo amid allegations of torture and other mistreatment had become an issue in Australia, where Prime Minister John Howard — a strong supporter of President Bush's "war on terror" facing an upcoming election — was under growing pressure to get Hicks released and brought home. Earlier this year, Howard had reportedly urged Vice President Cheney to expedite the resolution of the Hicks case.
American Taliban, Australian Taliban
Amnesty International says that it’s another indication of how unfair the military commissions are that the Australian government was able to exercise influence over how they’re conducted. And they cite a direct quote from the Australian Foreign Minister, Alexander Downer, who’s eager to brag about that fact.
"It's a tribute to the degree of influence that the Australian Government has in Washington, and the strength of the relationship that, of all the people held in Guantánamo Bay, the one Australian there is the first person to be tried...I can't believe that an Australian Government which was anti-American would have any hope of achieving that. Our Government has got Hicks to be the first person to be tried... We've got an Australian citizen here... [of] the 300 to 400 people I believe [are] in Guantánamo Bay, there's one Australian. And we've got this Australian to the head of the queue in terms of trial. And that's a good achievement."
Even the legalities of bringing Hicks back to Australia to serve out final months of his sentence appear to be mired in political wheeling and dealing. Australian Senator, Natasha Stott-Despoja claims that questions should be asked about Hicks-related legislation that was rushed through Australian parliament during the last sitting before Easter. Something called the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 was registered at 4pm.
Stott-Despoja observes:
It is curious that the Federal Government has chosen to negotiate an agreement and not a treaty.
Perhaps by using the word agreement the Government has intentionally saved the US President the embarrassment of having to explain it to the Senate, which examines all treaties.
Nobody cuts to the chase on the political deal quite like The Atlantic’s Andrew Sullivan though:
If you think this was in any way a legitimate court process, you're smoking something even George Michael would pay a lot of money for. It was a political deal, revealing the circus that the alleged Gitmo court system really is. For good measure, Hicks has a gag-order imposed so that he will not be able to speak of his alleged torture and abuse until after Howard faces re-election. Yes, we live in a banana republic. It certainly isn't a country ruled by law. It is ruled by one man and his accomplice.
COMMISSIONING THE RIGHT RESULT
While the peculiarities of the Hicks case and the suddenly cosy and sensitive arrangements between the Bush and Howard administrations regarding his case deserve close scrutiny, the bigger picture is the military commissions are a sham.
Yes, David Hicks has admitted he gave material support to terrorism and can now see light at the end of the tunnel (or some much needed darkness after being forced to live in a flouro-lit cell for 24 hours a day) but legally and morally there is no end in sight because a flawed system was allowed to deal with him.
Just one of the many anomalies that was allowed to stand in the HIcks case, that will no doubt affect the cases of other Gitmo detainees when they’re finally heard, is the retrospectivity of the charges.
Professor Hilary Charlesworth, the director of the Centre for International Governance and Justice at the Australian National University sums it up this way:
… a basic legal concern is that when Hicks was roaming around Afghanistan, guarding tanks and meeting Osama bin Laden, he was doing nothing that was then illegal under US, Australian or international law. Had he consulted a legal adviser before his journey, he would have been informed that his travels were dangerous and foolhardy, but not that they were illegal.
Major Mori has expressed the same concerns.
You can't create an offense after the fact. That is what's going on here. How do you get David Hicks convicted of crime when he never violated any law? You make up an unfair system and you create crimes after the fact - and that's what's going on here.
The specific charge that Hicks pleaded guilty to is “material support for terrorism.”
MAJOR MICHAEL MORI: Material support for terrorism is not an offense under the law of war. It's not an offense under Australian law. So now they're creating it with the Military Commission Act in 2006 and they're applying it to conduct back in 2001.
Lt Cdr Charles Swift is the US military lawyer who’ll defend another Gitmo inmate Salim Hamdan and he sums up what the military commissions act means:
What we have legislated is being our enemy or on our enemy's side, or being over there and not with us is a crime. It is the ultimate of you're with us or you're against us, and if you're against us you're a criminal, that's it.
The same Australian Broadcasting documentary found a few military legal opinions about the underlying purpose of the system.
REAR ADMIRAL DONALD GUTER, NAVY JUDGE ADVOCATE GENERAL 2000-02: I think they were looking to minimise the amount of due process that was provided to people that we took off the battlefield. I think a lot of people had the sense and the real conviction that they didn't deserve a lot of due process.
COL. LAWRENCE WILKERSON, FORMER CHIEF OF STAFF TO COLIN POWELL: And Rumsfeld was probably one of the most arrogant people I've ever seen in my life. I mean it was like, "I don't need to do this. I do not need to, I'm fighting a war. Those people knocked down those towers, hit the Pentagon, crashed a plane in Pennsylvania, they killed 3000 Americans, on my watch, mm-hm. On President Bush's watch, mm-hm. Ah, yeah, we've got to get them, we've got to get them and I don't have time for this namby pamby stuff, like the International Convention, the Geneva Conventions and so forth. I just don't have time for it." That's the attitude.
LT CDR CHARLES SWIFT: What they're really saying is, "Look, they are all guilty, OK? And any right or whatnot that they might have is a technicality and after you have seen these processes "you'll see that they're all guilty and in fact, you know they're all guilty, therefore, let's just have the trial and get it over with". The basic human rights are, in fact, simply technicalities.
So David Hicks might be headed for a more comfortable cell and, ultimately freedom before the start of 2008 but how much damage has been done by the process. There is of course the residual damage to Hicks – who will have lost six years of his life, sustaining God only knows what kind of psychological and emotional trauma along the way. But the damage is bigger than that. It’s dented the very basis of what we should believe to be legal and moral. Habeas corpus has taken a body blow as has the right of defendants to not be coerced into making confessions.
Victor Hansen, a former lieutenant colonel in the US Army JAG Corps who now teaches at the New England School of Law has summed up the damage caused by the Hicks case. It’s the justice system that has been tortured, abused and forced to submit:
Consider a system under which the accused has no meaningful ability to contest his status as an enemy combatant. Finally, consider a system where an accused can be convicted based on evidence from unknown sources and where he is denied the most fundamental right to confront and cross examine his accusers. In such a system, pleading guilty may seem, if not the best option, certainly the only option.
~snip
Clearly, such overbearing terms were not the product of a voluntary and free choice. They were the product of an overly and unfairly coercive system and one can safely assume that these terms will be standard fare for anyone who desires to plead guilty at a military commission. This is a system which by comparison, makes Iran’s recent behavior seem tame. After the public statements made by the released British sailors and marines about their capture and treatment, many Iranian officials may be looking with envy at the terms of Hicks’ plea agreement, and they are probably wishing they would have extracted similar concessions before they released their captives. Not to worry, Iran and the rest of the world have the United States’ example to follow, and given sufficient time and opportunity, others like Iran will certainly learn to adopt our ways. And we Americans are forced to sit silently by when other counties engage in this kind of behavior. That is what it means to lose our moral authority, and the thanks goes to the Bush Administration’s global war on the rule of law.
David Hicks' Guilty Plea: Another Blow to US Moral Authority
He'll miss the two-fruits when he gets home, ms?
By now I'm sure the very thought of them would induce gagging.
I doubt the story will go away over here. It's been too big for too long. The Murdoch media have been banging the drum for ages about about what a threat to society he is. It'll be interesting to see whether they let the story disappear as the election gets closer and impose some self-imposed gag order to prevent voters being reminded of the debacle.
You'd be taking them to the Better Business Bureau if you bought a washing machine the way we went into the war in Iraq. Wes Clark, CNN Aug 17 2003
What Military Music is to Music...that's the title to a book I read about how the military justice system operated during the Vietnam years. I hope Mr. Hicks will get treatment for any psycholigical problems he now has, while he is in Australian prison. Maybe these 9 months will be an unwinding experience for him. I hope they also give him some classes or something to help him get ready to reconnect with the outside world. Just getting turned loose is the "psycholgical equivalent of the benz," according to Victor Frankel who write Man's Search for Meaning.
In about 1990, Boeing Wichita sent me to Seattle to undergo facilitator training in Dr. Stephen R. Covey's Seven Habits of Highly Effective People program. The program didn't end 'til the close of business on a Friday, and the only way I could get back in time for my daughter's Saturday morning soccer game was to go through Las Vegas.
Viktor Frankl's book was highly recommended in the class, so I started reading it on my way back.
I had a several-hour layoff in the Las Vegas airport. So, there I am, surrounded by clanging and ringing video gambling machines as I read Man's Search for Meaning. The irony didn't escape me.
Stan Davis
Lakewood, CO
If not us, WHO? If not now, WHEN?
BE THE CHANGE you wish to see in the world.
Thanks, LJM. This is the most important lesson I learned from the book:
"They" (in Frankl's case, the Nazis in a concentration camp) can take away your liberty, in the physical sense. But they can't take your freedom, in the spiritual/mental sense.
Dr. Covey stated it this way: You can't control what happens to you, but you can choose, using your own, individual, private value system, how you will respond to what happens to you. (That's Habit One: "Be Proactive" -- respond from your values, not your emotions; stop, think, choose.)
Frankl chose to be free even in the worst physical conditions and confinement imaginable.
Stan Davis
Lakewood, CO
If not us, WHO? If not now, WHEN?
BE THE CHANGE you wish to see in the world.
Clearly, they messed with Hicks' head. Same deal with Padilla. Hard to say what choices they could make for themselves within their own "mental condition" given the abuse heaped on their psyche intented to break them.
Major Mori has been quoted a few times as saying David now wants to finish his education (he didn't even graduate from high school when he was younger)
"I really think his desire to finish his education has given him an immediate goal when he gets back, I think it would be great if he could go to university, if he could accomplish that," Major Mori told the Seven Network.
I've said all along that one of the people I'm most concerned for is Major Mori. He really has been unflinching in his criticism of the military commission system throughout this. Just looking for his comments about David's education plans I couldn't help smiling at this in the same article:
"Asked when he knew Hicks was guilty, Major Mori replied: "He pleaded guilty to a charge which didn't exist until October of last year, so I couldn't have known before then".
At the end of the interview from the "7:30 Report" that I quote in the original blog there was this exchange that bothered me.
KERRY O'BRIEN: In terms of you moving on with your life, do you honestly believe that you will not pay a price for the stances that you have taken and for the things that you have publicly said?
MICHAEL MORI: I'd rather not comment on that.
My dearest wish would be for General Clark to be alerted to the possibility that this young marine (with a young family) has gone right out on a limb to attack the military commission system. He made need some people with a voice in the military to make a noise if he gets punished for his principles.
You'd be taking them to the Better Business Bureau if you bought a washing machine the way we went into the war in Iraq. Wes Clark, CNN Aug 17 2003
Wes has said that the real mark of courage is standing by your convictions and speaking out when there are known risks. Having been out on that limb myself, I can tell you that no one will save you. You just have to accept that your life's path has been altered and you better figure out how to get on with it as best you can. Life isn't fair.
This is a system which by comparison, makes Iran’s recent behavior seem tame. After the public statements made by the released British sailors and marines about their capture and treatment, many Iranian officials may be looking with envy at the terms of Hicks’ plea agreement, and they are probably wishing they would have extracted similar concessions before they released their captives. Not to worry, Iran and the rest of the world have the United States’ example to follow, and given sufficient time and opportunity, others like Iran will certainly learn to adopt our ways. And we Americans are forced to sit silently by when other counties engage in this kind of behavior. That is what it means to lose our moral authority, and the thanks goes to the Bush Administration’s global war on the rule of law.
is one of the reasons I believe General Clark will run. I know he can not stand by and allow the raping and pillaging that that has been done to our constitution, our reputation, and our honor go unchallenged. I am not sure any of the current media-declared frontrunners are up to the challenge of what needs fixing in this country.
Thank you so much for this Phoebe. What a trial Mr. Hicks has been through, and I'm sure he's very relieved to be going home no matter what he had to do to get there. And I hope it is true that he can not and will not be held to the gag order put on him.
Once in a while you get shown the light, In the strangest of places if you look at it right.
And the poor decisions he made contributed to his hideous experience, but nobody deserves to be put through what he's been through.
One thing that really struck me as I put together the information for this blog was how keenly many in the military feel the injustice of what's been going on. It's was reassuring to turn up quotes from other intelligent, courageous men in uniform.
They deserve an intelligent, principled and courageous commander-in-chief who appreciates them and will protect them. And that's why Gen Clark needs to run. (Well, it's one of the many reasons he needs to run!).
And please God, let the good people who have clout in the military watch over Major Mori. He was described in one article as "a one man wrecking crew"! LOL. I just want to know he hasn't wrecked his career.
You'd be taking them to the Better Business Bureau if you bought a washing machine the way we went into the war in Iraq. Wes Clark, CNN Aug 17 2003
Yeah, so which is it?
Deadly terrorist, Al Qaeda no need for any rights because he's out to kill us?
Or slap on the wrist wrong place wrong time adventurist?
I think maybe what makes the most sense in this story is the time frame for Howard's election, the need to cave to pressure from the people on the Hicks case and the ubiquitous deal-making that runs rampant throughout all the NewCon governments in the world today. In cahoots.
That makes some sense.
The 12 month gagging is just soooo typical. Figuring after a year no one will remember or care anyways.
This story is dark and twisted, and I hope it will get an airing in the public scrutiny before long.
Thanks Phoebe for such a good reporting job.