Balkinization  

Wednesday, March 28, 2007

A [Guilty] Plea for Freedom?

Guest Blogger

David Glazier, Associate Professor of Law, Loyola Law School Los Angeles

Australian David Hicks' guilty plea to providing material support to terrorism at Guantanamo Monday should ultimately prove to be a brilliant defense maneuver. The Administration will seek to portray it as a victory for the military commissions, but in the longer run it should produce even greater pressures, both at home and abroad, to terminate these tribunals entirely. Although the confused proceedings lasted only a few hours, that was enough to establish that changes mandated by the Military Commission Act of 2006 (MCA) are insufficient to produce the "full and fair" trials promised by the President when launching this process a half-decade ago.

First, and most importantly, the crime Hicks pleaded to, providing material support to terrorism, is a felony triable in regular federal courts, but not a law of war violation military commissions can lawfully try. The inclusion of this offense in the MCA could allow future commissions exercising hybrid jurisdiction over law of war and statutory offenses to try acts committed after that law was enacted. But retroactive jurisdiction is only permissible over acts clearly violating international law at the time they were committed. Jurisdiction over Hicks, whose conduct dates back to 2001, would be unlawfully ex post facto. The Government bears the burden of proving that this offense violates the law of war, for which I have found no precedent in five years of academic research into military justice and the law of war. If the commission lacks jurisdiction over the charge, any court reviewing the decision per se, or Hicks' subsequent incarceration, should be obligated to set the conviction aside or order his release from custody.

The brilliance of Hicks' plea is that rather than spending months of additional Guantanamo incarceration contesting this point before a tribunal biased against him (more on this below), he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law. The MCA gives Hicks an appeal of right (following convening authority review) first to the Court of Military Commission Review, and then to the Court of Appeals for the D.C. Circuit. Should he lose before these bodies, he can petition for a writ of certiorari from the U.S. Supreme Court. Although the MCA purports to foreclose habeas review, the Supreme Court has long entertained such collateral challenges to military commissions, from the Civil War case ex parte Milligan through last summer's Hamdan decision. So it is far from certain that the MCA's jurisdiction stripping will be upheld, potentially creating additional prospects for federal collateral review in addition to the direct appeals. There is clear precedent for the federal courts to overturn a military conviction for lack of jurisdiction even following a guilty plea. Army Judge Advocate General Enoch Crowder, author of the statutory language construed by the Supreme Court to authorize military commissions in the Quirin and Yamashita decisions, found this out in losing McClaughry v. Deming, (186 U.S. 49), before both the Eighth Circuit and the high Court.

Should Hicks fail to prevail in U.S. courts, he can try again at home since the U.S. has agreed that he can serve any sentence imposed in Australia. Once transferred, Hicks can challenge his detention in Australian courts which should order his release via a writ of habeas corpus on the basis that the military commission lacked jurisdiction. It is unlikely that the Australian government could politically afford to return him to U.S. control even if it could do so legally, and charges under Australian law, after all Hicks has been through, would also seem unlikely. So the logical outcome for Hicks is that he should be set free soon after returning to Australia, via a legal process based on shared English common law traditions. This will undoubtedly cause the United States further international embarrassment. While vindication in our own Article III would establish an important precedent for other commission defendants, Hicks might waive some or all possible U.S. appeals to hasten his own return to Australia and ultimate freedom.

While the failure of the only charge against him to constitute a law of war violation is the most compelling basis for overturning the commission's jurisdiction, there are a number of other issues with the current commission process, both from legal and fairness perspectives, that emerged during the abbreviated proceedings.

Hicks' charges were approved by the new military commission convening authority, Susan Crawford. The commissions exercise military authority under the law of war and previous trials (more than 10,000 individuals) have been convened by officials in the chain of command. But Crawford is a civilian. She even signing signed Hicks' charge sheet as "the Honorable . . . . ," based on her status as a senior judge of the Court of Appeals for the Armed Forces (CAAF). Having been confirmed by the Senate only for that judgeship, by law a civilian role, she logically lacks necessary military authority to convene a military tribunal unless she severs all ties to the court, is appointed to military rank equivalent to courts-martial convening authorities by the President, and is confirmed by the Senate. The MCA gives the Secretary of Defense latitude in appointing a convening authority, but that language should be interpreted consistent with the customary law of war under the Charming Betsey canon.

The military judge presiding over Hicks' arraignment previously served in the flawed process overturned by the Hamdan decision and has already demonstrated a willingness to apply rules unfairly biased against the defendants. The prosecutor, Colonel Morris Davis, has breached MCA §949b.'s prohibition against attempting to coerce or influence the exercise of professional judgment by defense counsel by suggesting that Hicks' military defense counsel, Major Dan Mori, should be prosecuted for attempting to arouse Australian public support for his client.

Another logical indicator of bias against the defense was the judge's expulsion of two civilian counsels for Hicks from the courtroom yesterday. The MCA retains (unfairly) restrictive criteria for counsel qualification with which these individuals may not have fully complied. One was a government civilian - the MCA authorizes civilian prosecutors but facially seems to limit government defense counsel to uniformed officers, and the other apparently refused to agree in advance to be bound by rules that had not been made yet! Nevertheless, one cannot just fly into Guantanamo on a whim; their presence required fairly high-level DOD approval. And since the hearing was open to the press and representatives of non-governmental organizations, there was no reason other than anti-defense bias to eject them from the proceeding even if the judge felt he had grounds to deny them seats at the defense table.

Because the MCA, based largely on Uniform Code of Military Justice (UCMJ) court-martial procedure, adopts the latter's language with respect to guilty pleas, the judge must determine that Hicks admits to every required element of the charge before finding him guilty. If that happens, the full trial panel (a military trial does not have a "jury" - that term implies constitutional standards of impartial selection not applied to courts-martial or military commissions) will be brought to Guantanamo to determine his sentence. Based on WWII era precedents, once those unfortunate line officers sentence Hicks, they have probably committed the customary war crime of denial of a fair trial along with the convening authority, judge, and military prosecutor. If Hicks does not freely admit to all required elements of the offense, the judge must enter a not-guilty plea and the case could still be tried. Military law does not allow an "Alford plea:" pleading guilty to avoid perceived trial consequences without a full admission. This could be an issue because Hicks' plea seems motivated primarily by the logical desire to get out of Guantanamo via the quickest route - post-conviction transfer to Australian custody.

There is good reason for concern that Hicks' case is going to further damage perceptions of U.S. adherence to the rule of law although it does not implicate some of the more egregious aspects of post-MCA commission procedure. Those factors include the likelihood judges will admit coerced testimony and potential that sufficient details about classified sources will be concealed from the defense that they are unable to properly challenge its admissibility or credibility.

Although the MCA did improve the commission process, Hicks' treatment suggests that the government is still not credibly committed to the faithful application of the rule of law in Guantanamo proceedings. Any effort to portray Hicks plea as vindication of the tribunal process is thus both shortsighted and erroneous. At the end of the day, Hicks' plea may even hasten their demise.

Comments:

Professor Glazier:

A few observations, if I may:

1) I doubt that Mr. Hicks' sentence can be appealed. It appears that Hicks has entered into a plea bargain to plead guilty to a lesser charge of providing material support for terrorism. Although the reported terms of this plea bargain are very hazy, generally a defendant which enters a guilty plea waives his or her right to appeal as part of the plea bargain. I would be very surprised if the military did not insist on such a waiver, especially if they are giving up custody of Hicks to Australia.

2) I would be further surprised if the Australian courts declined to recognize a waiver of appeal out of comity for the United States courts. It appears that the military judge in this case is going through the usual colloquy to ensure that Mr. Hicks' plea is knowing and voluntary. Further, the Australian court will also be well aware that this plea bargain was the product of a great deal of careful diplomacy. While an Australian court ruling that the plea bargain was illegal followed by a release of Mr. Hicks may cause some fleeting embarrassment for the US, such a ruling will definitely guarantee that future unlawful enemy combatants will not be turned over to foreign custody.

3) You bring up a very interesting issue concerning the origins and application of the substantive law of war as it applies to unlawful enemy combatants. I would suggest that the MCA express definition of offenses for which an unlawful enemy combatant may be punished simply codifies pre-existing military custom for the treatment of unlawful enemy combatants.

Previously in our history, the President or the military custom set forth definitions of what constituted an unlawful enemy combatant. For example, Section IV of Lincoln's General Order No. 100 dated April 23, 1863 defined unlawful enemy combatants in ways which would cover the acts committed by Mr. Hicks:

SECTION IV.--Partisans--Armed enemies not belonging to the hostile army--Scouts--Armed prowlers-- War-rebels.

82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

83. Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.


Under such definitions, the military could and did execute unlawful enemy combatants after a status review which varied between a summary battlefield determination to something approaching a military trial. Consequently, a simple determination of status was enough to impose the full range of punishments up to and including death.

I would suggest that the war crimes enumerated by the MCA are simply codifications of the acts which the military has previously used to determine whether a capture was an unlawful enemy combatant subject to punishment. Under such an interpretation, ex post facto arguably should not come into play.
 

Howard Gilbert:

Normally you cannot classify a civilain as an unpriviliged belligerent simply because he planned or trained to engage in combat. He actually has to fight.

Good thing for the Michigan Militia et.al., eh? Would kind of ruin their Sunday "shoot a gopher with an M-16" parties....

Cheers,
 

Your average defense atty could point to lots of examples of something similar occurring, many legally innocent people languishing in jails alone waiting for trials. Such jails aren't Gitmo, but they aren't nice places either.
 

"I doubt that Mr. Hicks' sentence can be appealed."

In fact the plea (and the sentence, which hasn't been imposed yet, obviously) can probably be appealed. At least in federal habeas (which Hicks aims for, if I understand correctly), pleading guilty or n.c. precludes 2255 motions alleging a denial of rights prior to the plea, but does not waive relief for deprivations of rights affecting the validity of the plea itself, including the denial or IAC of counsel or other due process violations. Timmreck US '79. I'd expect the same doctrine to hold even in a sham petition or appeal from a sham trial.
 

"Bart" DePalma muses:

1) I doubt that ...
...
2) I would be further surprised if ...


A lot of things surprise "Bart" ... like reality. When he has difficulty describing what happened in cases that have occured in the past (such as his Briwn II hallucinations and his repeated assertions that the U.S. Supreme Court had held that the N.Y. Times could be prosecuted post-publication in the Pentagon Papers case), his blatherings aon what courts are going to decide in the future should be cause for amusement and not much more.

... While an Australian court ruling that the plea bargain was illegal followed by a release of Mr. Hicks may cause some fleeting embarrassment for the US, such a ruling will definitely guarantee that future unlawful enemy combatants will not be turned over to foreign custody.

See what I was saying about "Bart"'s tenuous grasp on reality? Hey, "Bart": Happen to know where Hamdi is?

It appears that the military judge in this case is going through the usual colloquy to ensure that Mr. Hicks' plea is knowing and voluntary.

Perhaps won't matter much if Hicks has been denied legal counsel of his choice as the Geneva Conventions [GC3, Article 105 and GC4, Article 72] require for detainees (or there are other procedural bars to finding he got a fair trial). If his trial was flawed, so is his plea.

Cheers,
 

"Bart" DePalma:

I would suggest that the MCA express definition of offenses for which an unlawful enemy combatant may be punished simply codifies pre-existing military custom for the treatment of unlawful enemy combatants.

Oh. My bad. I though you'd claimed that we used to just summarily shoot them. Or did I miss the part the the MCA that says they may do that?

Cheers,
 

"Bart" DePalma:

Under such definitions, the military could and did execute unlawful enemy combatants after a status review which varied between a summary battlefield determination to something approaching a military trial.

As was pointed out, about the only instances of summary executions in the study you cited was of the Nazis and Japanese doing such in WWII. Hardly an authority to cite to.

Cheers,
 

rothmatisseko said...

"I doubt that Mr. Hicks' sentence can be appealed."

In fact the plea (and the sentence, which hasn't been imposed yet, obviously) can probably be appealed. At least in federal habeas...


Unless the Court reverses the MCA, Mr. Hicks has no habeas rights before US federal courts.

Here is a short review of appeal waivers in plea bargains offered by the US Attorneys Manual:

626 Plea Agreements and Sentencing Appeal Waivers -- Discussion of the Law

Legality

At the outset, it is important to note that the Supreme Court has repeatedly held that a criminal defendant can elect to waive many important constitutional and statutory rights during the plea bargaining process. See United States v. Mezzanatto, 115 S. Ct. 797, 801 (1995); Tollett v. Henderson, 411 U.S. 258, 267 (1973); Blackledge v. Allison, 431 U.S. 63, 71 (1977, cert. denied, 116 S. Ct. 548 (1995). Consistent with that principle, the courts of appeals have upheld the general validity of a sentencing appeal waiver in a plea agreement. See, e.g., United States v. Allison, 59 F.3d 43, 46 (6th Cir. 1995); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995); United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993), cert. denied, 115 S. Ct. 652 (1994); United States v. DeSantiago-Martinez, 980 F.2d 582, 583 (9th Cir. 1992), amended, 38 F.3d 394 (1994), cert. denied, 115 S. Ct. 939 (1995); United States v. Melancon, 972 F.2d 566, 567-568 (5th Cir. 1992); United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992); United States v. Rutan, 956 F.2d 827, 829-830 (8th Cir. 1992).

A sentencing appeal waiver provision does not waive all claims on appeal. The courts of appeals have held that certain constitutional and statutory claims survive a sentencing appeal waiver in a plea agreement. For example, a defendant's claim that he or she was denied the effective assistance of counsel at sentencing, United States v. Attar, supra; that he or she was sentenced on the basis of race, United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994); or that the sentence exceeded the statutory maximum, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), will be reviewed on the merits by a court of appeals despite the existence of a sentencing appeal waiver in a plea agreement.


The only basis given above for Mr. Hicks to appeal would be ineffective assistance of counsel, which is not what Professor Glazier hopes would be appealed.
 

how about ineffective assistance of counsel due to the unlawful exclusion of hicks' chosen counsel by the military commission?
 

phg said...

how about ineffective assistance of counsel due to the unlawful exclusion of hicks' chosen counsel by the military commission?

I didn't have the time to address that in my last post.

To start, I am unsure whether Hicks can make an ineffective assistance of counsel claim. Hicks arguably has no constitutional rights in this regard pursuant to the ruling in Ex Parte Quirin, where the Court held that unlawful enemy belligerents do not enjoy 5th and 6th Amendment rights.

If Hicks does enjoy a right to effective counsel, I am unsure to what extent his civilian counsel were even involved in this plea agreement. I believe it was reported that the military judge discussed with Hicks whether the expulsion of his civilian counsel affected his decision to accept the plea offer and plead guilty and Hicks said it did not. It appears that the military judge is attempting to dot the I's and cross the T's in this plea agreement.
 

"Bart" DePalma is clueless and reading-impaired once again:

[from the USA manual]: A sentencing appeal waiver provision does not waive all claims on appeal. The courts of appeals have held that certain constitutional and statutory claims survive a sentencing appeal waiver in a plea agreement. For example, a defendant's claim that he or she was denied the effective assistance of counsel at sentencing, United States v. Attar, supra; that he or she was sentenced on the basis of race, United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994); or that the sentence exceeded the statutory maximum, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), will be reviewed on the merits by a court of appeals despite the existence of a sentencing appeal waiver in a plea agreement.

The only basis given above for Mr. Hicks to appeal would be ineffective assistance of counsel, which is not what Professor Glazier hopes would be appealed.


Missed that "for example", didja, "Bart"? That doesn't mean, despite your insinuations or your wet dreams, that "the only such situations are as follows".

Thanks for admitting that Rothmatisseko and I were right, though, in saying that you were full'o'it when you said that "I doubt that Mr. Hicks' sentence can be appealed".

Cheers,
 

The Australian courts, actually, have a doctrine you'd probably recognise as the 'unitary judiciary' which takes a very dim view of executive tribunals masquerading as courts and an equally dim view of the executive attempting to disregard the rule of law or pre-empt the courts from their constitutional role by diplomatic agreement. See, for example, Polyukhovich v Commonwealth, Ex parte Boilermakers’ Society of Australia or Communist Party of Australia v Commonwealth .

There's a reason the Howard Government is desperate for this matter not to come before an Australian court until the federal election.
 

"Bart" DePalma:

I believe it was reported that the military judge discussed with Hicks whether the expulsion of his civilian counsel affected his decision to accept the plea offer and plead guilty and Hicks said it did not.

If it's been "reported", cite it. We just don't trust you on anything around here (and for good reasons which I've repeatedly demonstrated).

As for Hicks telling da judge that it was no matter if his civilain counsel was expelled: Think, man, think! Here's a guy pleading guilty perhaps because his prosecutors appointed his lawyer (and consider what happened with Lt. Cmdr. Swift, who was pressured by the military to get Salim to plead guilty). So, "Bart" thinks that this guy, sans the attorney he wanted, can "cure" this defect by telling the judge (without access to or advice from said lawyer) that it's no big deal he didn't get his lawyer.

Joseph Heller had nothing on the ol' "Bartster".....

Cheers,
 

Re: my last post

After posting it, I came to realise that "Bart" probably still won't understand WTF I was saying (if he even bothers to read it).

Cheers,
 

DAVID Hicks' lawyers will seek his immediate release from any Australian prison if he is returned to Australia to serve more time in jail.

Victorian barrister Brian Walters, SC, has advised the Australian's legal team that to keep Hicks in continued detention in Australia would be unconstitutional because Australian courts could not recognise the new US military commissions.
Mr Walters and Robert Richter, QC, both said a prisoner transfer agreement signed by the US and Australia contained a little-known clause allowing lawyers to challenge the US sentence in an Australian court.

Attorney-General Philip Ruddock yesterday denied the transfer agreement allowed an Australian court to alter the length of a sentence imposed by the US.

"International transfer agreements are not to provide a lesser penalty than would be served if the person remained in the jurisdiction where the conviction was obtained," Mr Ruddock said.

"The principle is very clear: if a country were to unilaterally vary a sentence imposed on an individual in another jurisdiction, no country would deliver anybody up."

But under the transfer agreement, signed on May 9 last year, an Australian court has the power to re-set the US military commission sentence if it is "by its nature or duration incompatible with the law of Australia".

"I cannot see the legal basis for holding him (Hicks) in Australia," Mr Walters said.

An appeal before Australian courts was inevitable if Hicks faced continued imprisonment here.

"I do not believe that the courts in Australia will provide recognition to any sentence imposed by the military commission."

Mr Walters said: "If the agreement were that an Australian citizen would serve their sentence in Australia, this would only achieve recognition by Australian courts where the person had been sentenced by a properly constituted court.

"The military commissions at Guantanamo Bay plainly do not qualify: a mere presidential order that someone be detained could not justify the deprivation of liberty in Australia."
 

S4A of the International Transfer of Prisoners Act 1997 starkly shows quite how slavish the Howard government has been towards the Bush administration.

'Sentences of imprisonment imposed by military commissions of the United States of America
For the purposes of this Act:

(a) a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and
(b) any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and
(c) any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America.'

Despite that, the High Court has consistently read down privative clauses like this and the section would certainly not survive an adverse finding by the US Supreme Court, if the High Court did not, of its own motion, hold the section contrary to the Polyukhovich doctrine. It's also exceedingly likely that there will be a change of government at the next federal election which is due by the end of the year. The opposition would almost certainly repeal S4.
 

If Australian courts unilaterally release a convicted and admitted terrorist entrusted to their care, the opponents of Gitmo have just made the case that there is no viable alternative to that facility.

Could that be the purpose of this transfer?
 

If the High Court of Australia held that S4A is beyond the powers of the Federal Parliament then Hicks would not be a convicted and admitted terrorist in terms of Australian law. The admission is questionable under US law and would be unlawful in terms of Australian law.

The relevant Australian law is discussed in a speech (pdf) at the University of the Witwatersrand by Justice Michael Kirby in 2005. The Law Council of Australia issued an advice (pdf) on 8 March which reads in part:

'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.'

I would be not surprised, but astonished, if the Australian courts disregarded the Constitution and the laws of Australia as matter of diplomatic convenience.
 

"Bart" DePalma, meet Humpty-Dumpty:

If Australian courts unilaterally release a convicted and admitted terrorist entrusted to their care, the opponents of Gitmo have just made the case that there is no viable alternative to that facility.

"'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'"

To be sure, Hicks is not a person I'd want staying at my house (but that goes also for the guys that Blackwater hires). But if laws are to mean something, we have to know what the parameters are. The mealy-mouthed "providing material support to terrorism" need definition of all those words, and then we should look to see if whether what we come up with deserves to be a crime under those circumstances (disclaimer: I don't know what Hicks [supposedly] did in Afghanistan and when, so I have no real idea as to his criminal or moral culpability in my mind). And then we have to see if what Hicks did fits the law as we agree it should be.

The reason I waffle here on such loosely defined charges is that support to charities has been cited by some as constituting "material support" to "terrorist"). There ought to be a line, and just unknowingly giving money to a purported (or at least partial) charity seems to be somewhat innocuous, and harldy a fit target for gummint terra-ist prosecution; education might be of more use.

Cheers,
 

Professor Glazier,

At the AIDP Blog (http://www.aidpblog.org), I ask this question in reference to your post:

Omar Khadr previously has stated he will not cooperate with his “infidel pig” lawyer, or the “court of the infidels” which will make for a bit more excitement than the Hicks case.

"...if Hicks was innocent, and his plea was part of a 'brilliant defense maneuver' to get him out of the MC’s and into regular courts, is the opposite true? That is, if Khadr enters a not-guilty plea is his strategy ill conceived? It seems Defense advocates can’t have it both ways and it will be interesting to see how these cases develop."

I look forward to hearing your thoughts.

-Greg McNeal
 

Howard Gilbert:

future US military forces will have a hard time avoiding the same charge if we have anything to do with irregular allied forces....

Like, oh say, the Contras. Or the Northern Alliance. Or D'Aubuisson's death squads. Hell, read Stephen Kinzer's fine book, "Overthrow" for a hudred-year list of the atrocities.

Cheers,
 

Madision says that: "The federal statute creating the crime of providing material support to a designated foreign terrorist organization (18 U.S.C. 2339B) expressly provides that there is jurisdiction over the offense if "after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States." 18 U.S.C. 2339B(d)(1)(C). There thus was no jurisdictional impediment to prosecuting Hicks in federal court."

This provision was inserted in 2004 by PL 108-458. In 2001, s2339B applied only to people within the US or subject to the jurisdiction of the US. Further, the 2004 amendment requires the offender to be brought within the US. Of course, David Hicks only made it as far as Guantanamo Bay. Furthermore, the definition of "material support" as it stood in 2001 covered currency and other financial securities, financial services, lodging, training, expert advice or assistance, etc, etc. None of the things alleged against David Hicks appears to satisfy that definition. He has, for example, admitted to receiving training, not providing it..

The Australian Government refused to request Hicks' return to Australia on the basis of legal advice from the Australian DPP that he had committed no offence against Australian law. It said that it was not prepared to pass retrospective legislation to try him in Australia. It was, however, prepared to allow the US to do so.

Finally, the deal offered to Hicks on Moday wsa not available three years ago, when he was charged with conspiracy and attempted murder. There has clearly been huge political pressure geared to the Australian federal election to get Hicks home and have him released by the end of the year. The alternative was for the Australian government to request his immediate return - as the British government did in relation to its citizen Abassi, named as an associate of Hicks in the training camps in Afghanistan. That would have been embarrassing for Howard and Bush.

David Neal
 

A very interesting blog. Some commentators have said it is unlikely that Australian courts will look into the plea agreement (on the grounds of comity).

You all might be interested in the following interlocutory judgment of the Federal Court of Australia involving Hicks (handed down earlier this year): Hicks v Ruddock [2007] FCA 299 (http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/299.html).

It shows our courts aren't to afraid to delve into political issues.
 

In 2007, under a pre-trial agreement with convening authority Judge Susan J. Crawford, Hicks pled guilty before a United States military tribunal to a newly codified charge of "providing material support for terrorism" and was returned to Australia to serve the remaining nine months of a mostly suspended seven-year sentence. sportsbook, This nine month period precluded media contact and drew criticism for delaying his release until after the 2007 Australian election. Hicks' detention without charge, the subsequent trial process and outcome, and the newly created legal system under which these events took place, drew widespread criticisms. http://www.enterbet.com
 

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