Kangaroo court gags Hicks

6 Replies to “Kangaroo court gags Hicks”

1. Hicks’s pre-trial agreement (full transcript)

   UNITED STATES V DAVID MATTHEW HICKS

   Offer for a Pretrial Agreement

   Date: 26 March 2007

   1. I, David Matthew Hicks, am presently the accused under a military commissions charge that was sworn on February 2, 2007, and referred to trial on March 1, 2007. I have read the charge and specifications alleged against me, and they have been explained to me by my detailed military defense counsel, Major Michael D. Mori, and my civilian defense counsel, Mr Joshua L Dratel. I understand the charge and specifications, and am aware that I have a legal right to plead not guilty and to leave upon the United States the burden of proving my guilt beyond a reasonable doubt by legal and competent evidence. Understanding the above and under the conditions set forth below, and in consideration of the Convening Authority’s agreement to approve a sentence in accordance with the limitations set forth in Appendix A, I offer to plead as follows:

   To Specification 1 of the Charge and the Charge: Guilty

   I understand that this offer, when accepted by the Convening Authority, will constitute a binding agreement. I assert that I am, in fact guilty of the offense to which I am offering to plead guilty, and I understand that this agreement absolves the United States of its obligation to present any evidence in court to prove my guilt. I offer to plead guilty, freely and voluntarily, because I am guilty, and because it will be in my best interest that the Convening Authority grant me the relief set forth in Appendix A. I understand that I waive my right to avoid self-incrimination insofar as a plea of guilty will incriminate me.

   2. Furthermore, upon acceptance of this offer by the Convening Authority:

   a. I agree that I will enter into a reasonable stipulation of fact with the United States to support the elements of the offenses to which I am pleading guilty.

   b. I agree that I will not communicate with the media in any way regarding the illegal conduct alleged in the charge and the specifications or about the circumstances surrounding my capture and detention as an unlawful enemy combatant for a period of one (1) year. I agree that this includes any direct or indirect communication made by me, my family members, my assigns, or any other third party made on my behalf.

   c. I agree that as a material term of this agreement I will cooperate fully, completely and truthfully in post-trial briefings and interviews as directed by competent United States or Australian law enforcement and intelligence authorities. I agree to provide truthful, complete and accurate information and, if necessary, truthful, complete and accurate testimony under oath at any grand juries, trials or other proceedings, including military commissions and international tribunals. I understand that if I testify untruthfully in any material way I can be prosecuted for perjury. I further agree to provide all information concerning my knowledge of, and participation in al Qaeda, Lashkar-e Tayyiba (LET), or any other similar organizations. I agree that I will not falsely implicate any person or entity, and I will not protect any person or entity through false information or omission.

   d. I hereby assign to the Government of Australia any profits or proceeds which I may be entitled to receive in connection with any publication or dissemination of information relating to the illegal conduct alleged in the charge sheet. This assignment shall include any profits and proceeds for my benefit, regardless of whether such profits and proceeds are payable to me or to others, directly or indirectly, for my benefit or for the benefit of my associates or a current or future member of my family. I hereby represent that I have not previously assigned, and I agree that I will not circumvent this assignment to the Government of Australia by assigning the rights to my story to an associate or to a current or future member of my family, or to another person or entity that would provide some financial benefit to me, to my associates, or to a current or future member of my family. Moreover, I will not circumvent this assignment by communicating with an associate or a family member for the purpose of assisting or facilitating his or her profiting from a public dissemination, whether or not such an associate or other family member is personally or directly involved in such dissemination. I agree that this assignment is enforceable through the Australian Proceeds Act of 2002, and any other applicable provision of law that would further the purpose of this paragraph’s prohibition of personal enrichment for myself, my family, or my heirs and assigns, through any publication or dissemination of qualifying information, and I acknowledge that my representations herein are material terms of this agreement.

   3. In making this offer, I state that:

   a. I am satisfied with my detailed military defense counsel, Major Michael D. Mori, and my civilian defense counsel, Mr Joshua L Dratel, who have advised me with respect to this offer, and I consider them competent to represent me in this military commission and agree that they have provided me effective assistance of counsel.

   b. No person or persons have made any attempt to force or coerce me into making this offer or to plead guilty. This is a free and voluntary decision on my part made with full knowledge of its meaning and effect.

   c. My counsel have fully advised me of the nature of the charge and specifications against me, the possibility of my defending against them, any defense that might apply, and the effect of the guilty plea that I am offering to make. I fully understand the advice of my defense counsel and the meaning, effect, and consequences of this plea.

   d. I understand that the signature of the Convening Authority to this offer and to Appendix A, or to any modified version of Appendix A which I also sign, will transform this offer into an agreement binding upon me and the United States.

   e. I understand and agree that the Convening Authority can withdraw from this agreement and this agreement will become null and void, in the event that:

   1. I fail to plead guilty as required by this agreement;

   2. The commission refuses to accept my plea of guilty to any charge;

   3. The commission sets aside my plea of guilty for whatever reason, including upon my request, before sentence is announced; or

   4. I fail to satisfy any material obligation or term of this agreement, or I have misrepresented any material term of this agreement.

   5. I fail to agree to a satisfactory stipulation of fact with the prosecution related to the charge and specification to which I plead guilty.

   f. I understand and agree that, if this agreement becomes null and void for any reason, my offer for this plea agreement cannot be used against me in any way at any time to establish my guilt of the charge alleged against me, the United States may prosecute the charge and specifications alleged against me, and the limitations upon the disposition of my case set forth in Appendix A will have no effect.

   g. I understand and agree that my failure to fully cooperate with Australian or United States authorities may delay my release from confinement or custody under applicable provisions of Australian law.

   h. I acknowledge and agree that I am an alien unlawful enemy combatant, as defined by the Military Commissions Act of 2006, Title 10, United States Code, Section 948 (c).

   i. I have never been illegally treated by any person or persons while in the custody and control of the United States. This includes the period after my capture and transfer to US custody in Afghanistan in December 2001, through the entire period of my detention by the United States at Guantanamo Bay, Cuba. I agree that this agreement puts to rest any claims of mistreatment by the United States.

   j. I further understand and agree that the entire period of detention as an unlawful enemy combatant is based upon my capture during armed conflict, has been lawful pursuant to the law of armed conflict and is not associated with, or in anticipation of, any criminal proceedings against me.

   4. In exchange for the undertakings made by the United States in entering this Pretrial Agreement, I voluntarily and expressly waive all rights to appeal or collaterally attack my conviction, sentence, or any other matter relating to this prosecution whether such a right to appeal or collateral attack arises under the Military Commissions Act of 2006, or any other provision of United States or Australian law. In addition, I voluntarily and expressly agree not to make, participate in, or support any claim, and not to undertake, participate in, or support any litigation, in any forum against the United States or any of its officials, whether uniformed or civilian, in their personal or official capacities with regard to my capture, treatment, detention, or prosecution.

   5. I agree that for the remainder of my natural life, should the Government of the United States determine that I have engaged in conduct proscribed by Sections 950q through w. of Chapter 47A of title 10, United States Code, after the date of the signing of this Pretrial Agreement, the Government of the United States may immediately invoke any right it has at that time to capture and detain me, outside the nation of Australia and its territories, as an unlawful enemy combatant. If I engage in conduct proscribed by Sections 950q through w. of Chapter 47A of title 10, United States Code, after the date of the signing of this Pretrial Agreement and during the period in which any part of my sentence is suspended, the Convening Authority may vacate any period of suspension agreed to in this Pretrial Agreement or as otherwise approved by the Convening Authority and the previously suspended portion of my sentence could be imposed on me. This pretrial agreement resolves all charges against me under the Military Commissions Act of 2006 and United States law that may have occurred before the signing of this agreement.

   6. This document and Appendix A include all of the terms of this Pretrial Agreement and not other promises or inducements have been made by the Convening Authority or any other person which affect my offer to plead guilty or enter into this Pretrial Agreement.

   (Signed)

   David Matthew Hicks (Accused)

   26/3/07

   We certify that we provided David Matthew Hicks the advice referred to above and explained to him the elements of the offenses to which he is pleading guilty, and that he has voluntarily signed this offer for pretrial agreement.

   (Signed)

   Michael D Mori, Major, USMC, 26 Mar 07

   Joshua L Dratel, Civilian Defense Counsel, 26 Mar 07

   I recommend acceptance of this offer.

   Morris D Davis, Colonel, USAF, Chief Prosecutor, 26 Mar 07

   I recommend acceptance of this offer.

   Thomas L Hemingway, Brig Gen, USAF, Legal Advisor to the Convening Authority, 26 Mar 07

   The foregoing instrument, including Appendix C, concerning David Matthew Hicks, dated March 26, 2007, is approved and accepted.

   Susan J Crawford, Convening Authority, 26 Mar 2007

2. The LA Times reveals

   Hicks will be out of prison before the year ends because of a secret deal cut by the Bush administration appointee overseeing the military commissions.

   The jury went through the motions: The panel of senior military officers flew in from around the world, deliberated for two hours and sentenced Hicks — who had entered a guilty plea — to what they’d been told was the maximum term of seven years.

   But the person overseeing the tribunals, veteran Defense Department lawyer Susan J. Crawford, had bypassed the prosecution and cut a pretrial deal directly with the defense to suspend all but nine months of any sentence rendered in exchange for the guilty plea.

   …

   Bringing his case to the war-crimes tribunal first, and before all the procedural guidance was ready, left the impression with many legal analysts that Crawford stepped in to do Howard a favor — at the expense of the commissions’ credibility.

   Even the chief prosecutor, Air Force Col. Morris Davis, issued what seemed a subtle dig at the plea deal made behind his back. After offering sincere congratulations to Hicks’ military defense lawyer, Marine Maj. Michael Mori, he said he also wanted to thank Howard’s government for everything it had done to bring closure to the case.

   Davis said that the lenient sentence was negotiated without his input and that he signed off on the pretrial agreement because opposing it would have been “a symbolic move.”

   …

   Legal analysts condemned the first completed case as fresh evidence that the detention and prosecution are unjust and immoral.

   “From the beginning, the Hicks proceedings have illustrated everything that’s wrong with these military commissions,” said Maureen Byrnes, executive director of Human Rights First.

   “The plea deal in particular has the taint of coerced statements and secrecy. The deal effectively censors anything Mr. Hicks might allege about what he says he suffered and implausibly characterizes the last five years of his detention as justified under the laws of war.”

   …

   Melbourne lawyer Robert Richter wrote in a commentary for Sunday’s The Age newspaper of Melbourne that the Hicks trial was a sham that has wholly discredited the Pentagon’s war-crimes process.

   “The charade that took place at Guantanamo Bay would have done Stalin’s show trials proud,” Richter said. “First there was indefinite detention without charge. Then there was the torture, however the Bush lawyers, including his attorney general, might choose to describe it. Then there was the extorted confession of guilt.”

   Other legal analysts saw the nine-month term as suspiciously accommodating of Australia’s election season as the deal keeps Hicks out of the public arena until just after the vote expected by December.

   “It might just be a coincidence, but if it is, it’s an amazing one,” said Lex Lasry, who came to Guantanamo to observe the tribunal on behalf of the Law Council of Australia, the country’s bar association.

3. The Australian is coming out against Howard. Good sign of the tables having turned. Its editorial today states

   THE more that is known about the terms of the plea bargain agreed to by confessed terror trainee David Hicks, and the way it was concluded, the more disturbing it becomes. While the arrangement may serve the purposes of the US and Australian governments and ensure Hicks gets out of prison quickly, it does little to dispel complaints that the process was riddled with political interference. As Geoff Elliot reports in The Australian today, the prosecution, judge and jury were kept out of the loop. Hicks’s US defence lawyer, Major Michael Mori, went over their heads to Washington where he negotiated directly with the head of the Convening Authority for US military commissions, Susan Crawford. While not a political figure in her own right, Ms Crawford has had a long working association with US Vice-President Dick Cheney. At the end of negotiations, the eight-member panel of the military commission in Guantanamo Bay was presented with a done deal. This is at odds with the version of events given by John Howard, who said the plea bargain was negotiated between the military prosecution and Mr Hicks’s lawyers.
   There is an unmistakable stench of political expediency to the terms of the plea bargain, in particular the extraordinary 12-month gag order that prevents Hicks from speaking publicly about the actions to which he has pleaded guilty or the circumstances surrounding his capture, interrogation and detention. The gag also silences family members and any third party. While no one would suggest Hicks should not be allowed to sell his story, a blanket gag order that extends beyond the period of incarceration is a disturbing erosion of free speech. And the fact it is only in place for one year gives a clear impression its main purpose is to keep Hicks quiet until after the federal election.

   Again in the Australian today, David Flint, emeritus professor of law and ex ABC Board chairman, whilst missing the legal subtleties captured in the LCA opinion and having no appreciation of the human rights issues involved with Hicks’ incarceration, adds his voice to the throng:

   It is not the detention nor the process that is wrong, it is the gag. It is not so much that the gag will serve little purpose and could easily be circumvented. It is that it offends the basic right to freedom of speech that all free men should enjoy.

   This is not there just for Hicks’s benefit, indeed it is to be hoped that any profit he or his family glean from his crime is allocated first to repaying the taxpayers of this country for the vast sums spent not only on his defence, but also the visits by consular officials and relatives and the funding of an SBS film apparently advancing his cause.

   Hicks’s freedom to speak is also our freedom to hear. We may learn something of vital public interest. We may also learn a lot of rubbish. But in seeing him, in hearing him, and in reading him, we, and not just the government, Australian or American, will be able to make the judgment we are entitled to make as free citizens as to whether he is still a danger, whether he is genuinely contrite, and whether he was fairly detained.

   In any democratic country, freedom of speech is the cornerstone on which other freedoms are based. To the extent that Hicks, when free, is denied that freedom, our freedom too is diminished.

   If Flint’s understanding is shared by most other conservative Whorestralian jurists, the rodent now has a serious mutiny on his hands.

4. Howard denies input into Hicks’ sentence and gagging:

   THE Howard Government insists it did not speak to the United States about the sentence that gags David Hicks until after the federal election, even though ministers knew the penalty before the deal on his fate was made public.

   Senior Government figures were aware of the nine-month sentence at least as early as Tuesday, the Herald understands, even though it was not announced until Friday.

5. Hicks may well have grounds on which to appeal on his return to Whorestralia. Here’s the legal opinion of the Law Council of Australia on his chances.

   Accordingly, and on all three grounds consistently applied by the Supreme Court of the United States, the offence created by Section 950v(25) MCA, when applied to the activities of David Hicks in Afghanistan between December 2000 to December 2001 is a clear and straightforward case of a retrospective criminal law. As such it is a classic retrospective (ex post facto) offence within at least three of the Calder v Bull categories of unlawful criminal legislation. Consequently, it is prohibited by the Constitution of the United States of America and also violates treaties to which Australia and the United States are parties, namely Article 99 GC3 and Article 15 of the ICCPR and contravenes the Australian Criminal Code.

   The attempt to apply the section 950v(25) MCA offence to Hicks plainly violates the substance of the guarantee against ex post facto laws in the US Constitution. The provision is therefore unconstitutional and invalid on its face. The only doubt relates to whether Hicks, as a non-citizen held outside the sovereign territory of the United States, has the standing to seek a remedy before the US federal courts for the violation of the principle of non-retrospectivity. Until this question has finally been determined by the US Supreme Court, in practical terms, there is no constitutional obstacle in the United States to applying a retrospective criminal law to David Hicks, although this could not happen legally to any citizen of the United States.

   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.

   If the US Supreme Court again declares the military kangaroo courts invalid, Hicks’ sentence will be null and void.

6. All the Whorestralian state Attorney Generals pressure the revolting Ruddock to sign the Fremantle Declaration.

   It calls on all Australian governments to uphold the right to a fair trial, the principle of habeas corpus, the prohibition on indefinite detention without trial, the prohibition of torture, access to rights under the Geneva Convention, the separation of powers and the prohibition of the death penalty.

   …

   Mr McGinty said the attorneys-general felt shame and disappointment that so many legal principles had been ignored.

   …

   Major Mori explained to the attorneys-general a series of “myths” he said were propagated by the Australian Government.

   He said one of those was the suggestion that Hicks would go unpunished if he were sent home because he had not committed any offence under Australian law. “What are we waiting for? He’s done five years. He’s served a punishment. Are we just waiting for the show trial?”

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