02 April 2007

Hicks case comments

Since the verdict/agreement/plea bargain/sentence has been announced there has, not unexpectedly, been a great deal of media comment, particularly from Australia and the US.

US comment

For a pithy and witty summary here's Andrew Sullivan at The Daily Dish .

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.

William Glaberson in The New York Times
offers a more sober assessment:

From the start, Guantánamo, its detainees and the legal proceedings here have provided enough grist to support the competing views of the detention center: a necessary mechanism for dealing with a new kind of enemy, or the embodiment of the war on terror gone awry.

Mr. Hicks’s conviction with a guilty plea provides something for each side. He admitted training with Al Qaeda, guarding a Taliban tank and scouting a closed American embassy building. But there is no evidence he was considering a terrorist attack or capable of carrying one out. Yet he was held five years and four months before he got his day in court. And at the end of a very long day at the tribunal Friday, his actual sentence was only nine months.

To the prosecutors and the extensive public relations apparatus assembled by the military here, Mr. Hicks’s case proved, as one spokeswoman regularly repeated, that the military commission system offers a “fair, legitimate and transparent forum.”...But to some in the courtroom, the proceedings proved only that the system was rigged to show detainees that the only way out of Guantánamo was to give the prosecutors what they wanted. Not only did Mr. Hicks plead guilty, but he also signed a plea bargain in which he recanted his accusations about being abused in detention and promised not to speak to reporters for a year.

In the cadre of observers from advocacy and human rights groups here to monitor the proceedings, the plea deal Mr. Hicks reached was fresh evidence of the coercive power of this place. The plea bargain included a provision that will get Mr. Hicks out of detention here and into an Australian prison to serve the rest of his sentence within 60 days. That provision as much as any served as a reminder of the international crosscurrents that will swirl around many of the cases here. There had been growing diplomatic pressure on the Bush administration to return Mr. Hicks to Australia, where his case has drawn wide attention and where Prime Minister John Howard, one of President Bush’s most stalwart supporters, is facing a tough re-election fight.


as developments unfolded, David H. B. McLeod, an Australian lawyer working with the defense, provided insight into Mr. Hicks’s thoughts. “He says that if he is the worst of the worst, and the person who should be put before a military commission first,” Mr. McLeod said, “then the world really hasn’t got much to worry about."

Carol Williams in The LA Times makes some interesting observations:

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."

The Hicks deal followed by only a day Defense Secretary Robert M. Gates' expression of concern before a congressional committee that because of Guantanamo's reputation in the world, the tribunal verdicts were going to lack credibility.

Friday's "machinations" in the Hicks trial and international reaction to the hand-slap sentence "suggest the accuracy of Gates' Thursday testimony about global perceptions of the military trials held at Guantanamo," said University of Richmond law professor Carl Tobias.

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."

As a condition for the light sentence, Hicks was compelled to state that he has never been "illegally treated" in U.S. custody. He also had to promise not to bring any legal actions against U.S. officials or citizens for any reason.

"Add in the widespread perception that the plea deal was in part the result of intense political and diplomatic pressures, and the conclusion is inescapable that these military commissions don't deal justice, they deny it," Byrnes said.

The prohibition against Hicks ever claiming he was "illegally treated" in U.S. custody contradicted sworn statements submitted in his attempt to obtain British citizenship and a more protective home government.

The statement to a British court said he had been repeatedly beaten, sodomized and forced into painful positions during interrogations.

See also Joan Z Shore at Huffington Post
's post "Trial and (T)error".
has links to these and other comments, with the pithiest summary of them all "Hicks deal stinks say American commentators".

Australian comment

Yesterday's Australian editorial "Plea bargain is less than perfect justice: David Hicks has got a good deal, thanks to politics" reflected the mixed feelings of many conservative and other commentators about both the process and the outcome:

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.

From the US perspective, Hicks has sworn he was never illegally treated during his capture, transfer to or detention at Guantanamo Bay. The agreement says this puts to rest any claims of mistreatment by the US. And Hicks has agreed not to take legal action against any US official over his capture, treatment or prosecution. In exchange, Hicks will be handed over to Australian authorities within 60 days and gets a maximum sentence of seven years, suspended after nine months.

For everyone except Hicks, who seems to have escaped with a remarkably light sentence given the serious nature his charges, it is a deeply unsatisfactory outcome. By short circuiting the tribunal process, the most serious allegations will never be tested. Justice has been blatantly compromised by international politics and diplomacy in a way that would be deplored in any other arena. The fact that Hicks's civil liberties supporters have not protested vigorously about this since the plea bargain was struck suggests they know how lucky he has been. Their conduct throughout Hicks's detention must not be forgotten for what it was -- an avenue through which to protest at the policies of US President George W. Bush and the support he has been given by the Australian Prime Minister. Hicks's robust physical and mental condition when he appeared before the military tribunal last week, and the news that he has been able to study mathematics while in detention, gives the lie to the allegations of abuse levelled against his captors. In all, the plea bargain represents an unsatisfactory end to a saga that was allowed to drag on for far too long. The five-year delay in bringing Hicks to trial ultimately proved morally and politically indefensible. This has resulted in Hicks getting what seems a favourable sentence for his agreed offences. While expedient, plea bargains are no substitute for considered justice in open court."

he Age didn't have an editorial but has published several articles including Robert Richter QC's "A trial that was uncomfortably close to Stalinist theatre" and Liz Porter's "Law behind closed doors", as well as 's piece "It is a myth that the Guantanamo camps are hell on earth".

Last night ABC TV's
Four Corners had a pretty good overview, considering the brief time between the verdict (or its announcement) and the program. The program website includes a transcript and a handy list of links to other sources
See also Tim Dunlop at Blogocracy and a witty "spot the terrorist" post at The Road to Surfdom

Latest developments

Premier Rann, who is in Chile at the moment, has been banging the populist drum about the risks that David Hicks' release might pose. In a pot calling the kettle black scenario Prime Minister Howard who was in Adelaide todayaccused Mr Rann of "rank hypocrisy":

Mr Rann said: "What I want to know from the Federal Government is, what are the conditions of his release? What are the parole conditions? Will he be under supervision?"

Mr Howard said it was only a few months ago that the South Australian attorney-general had joined with other Labor state attorneys-general to demand that Hicks be returned home without charge. The state attorneys-general made the demand after meeting with Hicks' military lawyer, Major Michael Mori.

"I can remember seeing all of them lined up on television after they'd had a meeting with Major Mori," Mr Howard said. "They weren't arguing for a sentence, they were arguing for him not appearing before the military commission. And for Mr Rann to now turn around and say I am worried about the safety of South Australian public is just rank hypocrisy," Mr Howard said.

In this instance I reckon it's Mr Rann who's gone over the top: he talks about "parole", yet Hicks' sentence only refers to a "suspended sentence". They may seem synonymous but there are significant differences between them, as the SA Courts Administration Authority website makes clear: a suspended sentence is imposed by the court at the time of sentencing, whereas parole is essentially an administrative mechanism which may be activated after a period of imprisonment.

In the Premier's huffing and puffing he seems to have forgotten about his own government's policy on corrections, which is set at on the Corrections SA website:

Many people in the community have an impression of prisons as a place where criminals are simply locked up for punishment. That opinion would have been true 50 years ago. After many years of experience and study, government and judicial systems have recognised the need for prisons to be places of change. A basic question needs answering - what is the use of a prison system which returns an offender to the community the same if not worse than when he or she entered prison? The philosophy in most modern prison systems is to try and change the behaviour of offenders by developing in them skills which see all people live in the community without resorting to crime.

There’s a lot of other information on the site about how prisoners are managed and prepared for release (including being given day leave before release). Is Mr Rann proposing that these processes shouldn’t apply to Hicks?

On tonight's ABC TV 7.30 Report (transcript not available as I post) Kerry O'Brien interviewed Major Mori , who played a very straight bat (in the cricket sense of the word) and kept a straight face while not revealing very much at all.

And, just now, Crikey has put out a special edition "David Hicks tells all", which consists 20 headlines, eg "The guilty plea: how I advised David - Major Michael Mori writes", each followed by a blank space as the plea bargain deal stipulates.

That's enough for now!

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