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.
Posted 6:38 AM by Guest Blogger [link]