David Hicks' Guilty Plea: Another Blow to US Moral Authority Commentary
David Hicks' Guilty Plea: Another Blow to US Moral Authority
Edited by: Jeremiah Lee

JURIST Guest Columnist Victor Hansen of New England School of Law says that the overbearing terms imposed on Australian Guantanamo detainee David Hicks in his recent military commission plea agreement are the product of an overly and unfairly coercive system and have further undermined America's moral authority in rule of law matters…


The recent safe return of 15 British marines and sailors held in Iran for two weeks is good news. As details of their captivity become public, few are surprised that the videos released by the Iranian government which depicted the sailors and marines being treated humanely did not tell the full story of their treatment. After their release, some of the UK personnel revealed that they had been placed in small isolation cells for long periods of time, subjected to psychological manipulation, and threatened by their captors with long prison terms as a way to coerce confessions from the captives that they had strayed into Iranian territory prior to their capture.

Assuming that the allegations of the British sailors and marines are true, these actions by the Iranian government are reprehensible and a violation of international law. Prior to the Bush Administration’s war on terror, both American politicians and the American people would have been justifiably indignant at the conduct of the Iranian government, particularly given our own history with Iranian hostage-taking. However, five years into this war on terror, many of us do not feel so willing to express our indignation at the kind of conduct we see from Iran.

The Bush Administration is fond of saying that 9/11 changed everything. Many legitimately dispute whether everything has in fact changed. However, no one can dispute that some things have certainly changed. As Americans we must now look at the behavior of counties like Iran through the lens of "black sites," CIA renditions, torture memos, Abu Ghraib, water boarding, habeas-stripping statutes, military commissions, and indefinite detentions. Iran’s 15-day detention of British sailors and marines and the subsequent ham-fisted propaganda stunts by the Iranian government look pretty tame by comparison.

One only needs to compare the treatment of these captured British sailors and marines to the case of the Australian David Hicks to understand why the United States has lost the ability to complain about Iran’s conduct. David Hicks is the first person to be tried under the new Military Commissions Act. Not surprisingly, he is also the first person to plead guilty.

A careful review of the terms of his guilty plea answers many more questions about the inherently coercive system of the military commissions then it does about Hicks’ actual crimes or the threat he supposedly poses to the United States as an unlawful alien enemy combatant.

We know that David Hicks was captured in Afghanistan in December of 2001. In July of 2004, some 2 1/2 years later, he was first charged with conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy. After the Supreme Court invalidated the President’s military commissions system in Hamdan v. Rumsfeld, and after the Military Commissions Act became law in the fall of 2006, Hicks was again charged in early 2007. This time the conspiracy charge was dropped and he was charged by prosecutors with providing material support for terrorism and attempted murder in violation of the law of war. The charge of attempted murder was later dropped by the U.S. military and last month Hicks pleaded guilty to the charge of providing material support.

While the Administration and those who favor the military commissions will tout this guilty plea as proof of the fairness of the military commissions system, those claims should be viewed with at least as much skepticism as we would view Iran’s claims that the 15 British sailors and marines all freely and willingly confessed that they were in Iranian waters at the time of their capture.

First and foremost, consider a system under which Hicks’ guilty plea was obtained only after more than 5 years of detention. Consider also the prospect that this detention may have continued indefinitely even if Hicks was successful in defending against the charges brought against him. 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.

What might a guilty plea under such a system look like? The specifics of David Hicks’ guilty plea provides some answers. In the agreement Hicks agreed to the following terms. He agreed that he would not communicate with the media regarding his alleged illegal conduct and the specifics of his capture or detention for one year. In the agreement Hicks was required to state that he had never been illegally treated by any person or persons while in the custody and control of the United States including his capture in Afghanistan and his detention at Guantanamo. Hicks was also required to state that his capture and entire period of detention was lawful and done pursuant to the law of armed conflict.

In addition, Hicks expressly had to agree not to make, participate in, or support any claim and not to undertake, participate in, or support any litigation, in any form against the United States or any of its officials, whether uniformed or civilian, in their personal or official capacities with regard to his capture, treatment, detention, or prosecution. (Of course if his capture and treatment was in fact lawful, such a broad waiver would be superfluous). Hicks agreed that for the remainder of his natural life, if the United States were to determine that he engaged in any further conduct proscribed by the offenses codified in the Military Commissions Act, the United States could immediately detain and try him under the Military Commissions Act if he were outside the nation of Australia. (Under these terms, for David Hicks at least, Australia has returned to its former status as a penal colony from which he would be well advised to never leave). Finally, most incredibly and ironically, David Hicks was required to state that no person or persons have made any attempt to force or coerce him into making this offer to plead guilty and that his decision to plead guilty was made freely and voluntarily.

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 Administ
ration’s global war on the rule of law.

Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law
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