Former Guantánamo Prisoner David Hicks Appeals His 2007 Conviction for Non-Existent War Crime

Ever since the conservative court of appeals in Washington D.C. delivered an extraordinary ruling last October, vacating one of the only convictions in the military commission trial system introduced for prisoners at Guantánamo, it has only been a matter of time before other appeals would be lodged.

Last Tuesday, November 5, the first man convicted in the trials — the Australian citizen David Hicks, who agreed to a plea deal in March 2007, on the basis that he would be returned to Australia to serve a seven-month sentence — lodged an appeal with the US Court of Military Commission Review, “arguing for a summary dismissal of the conviction,” as the Sydney Morning Herald described it, “because the offence was not a war crime at the time Mr. Hicks was detained, and his guilty plea was made under duress because of his detention, torture and abuse at Guantánamo.”

Just seven convictions have been secured in Guantánamo’s military commission system (between March 2007 and February 2012), which has struggled — and failed — to achieve any kind of credibility since George W. Bush’s Vice President, Dick Cheney, ill-advisedly dragged the commissions from the history books in November 2001. Ruled illegal by the Supreme Court in June 2006, they were then revived by Congress, and revived by Congress a second time under President Obama in 2009, despite warnings by senior administration lawyers that convictions would almost certainly be overturned on appeal.

When this finally happened, last October, the appeals court — the D.C. Circuit Court — threw out the conviction of Salim Hamdan, the second man to be convicted. Hamdan, a Yemeni citizen, who had taken a paid job as one of Osama bin Laden’s drivers, had his conviction for providing material support for terrorism overturned on the basis that, as the judges described it, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”

Hamdan had received a five and a half year sentence in August 2008, but only served five months because his judge allowed for time served since he was first charged, and by the end of 2008 he was a free man, back at home with his family. He had also been charged with conspiracy, but that charge had been dismissed by the military jury. However, in another case, that of the third man to be convicted, Ali Hamza al-Bahlul, a Yemeni who had made a promotional video for al-Qaeda and had refused to mount a defense in his trial in October 2008 when he received a life sentence, the Circuit Court was called upon to address a conviction on other charges as well as material support; namely, conspiracy and solicitation to commit murder.

In January this year, the court overturned al-Bahlul’s conviction on the same basis that Hamdan had his conviction overturned, because, as Reuters described it, “the charges of which he was convicted” were “not internationally recognized as war crimes when the acts were committed.”

The government appealed the al-Bahlul ruling, and a full panel of judges in the Circuit Court heard the case on September 30 this year. The government deserves to lose, of course, but whatever happens the Hamdan ruling stands, and, as the law professor Jennifer Daskal described it in an article in September for the new website Just Security, “All seven of the military commission convictions to date include charges of conspiracy or material support; in five out of those seven, they were the only charges.”

In the cases of David Hicks and Ibrahim al-Qosi, a Sudanese prisoner released in July 2012 as part of his plea deal, material support was the only charge, and in the case of Noor Uthman Mohammed, who reached a plea deal in February 2011 and is supposed to be released next month, the charges were material support and conspiracy.

The other two, Omar Khadr and Majid Khan, pleaded guilty to five charges — murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying — but, as I will be explaining in my next article, Khadr is challenging his conviction, and Khan’s entire case is profoundly troubling, as Amnesty International explained in a report in July 2012 entitled, “One-Way Accountability.”

For David Hicks, as the Sydney Morning Herald explained, his appeal is to overturn his conviction “for the ‘invented’ crime of providing material support for terrorism.”

In his appeal documents, his lawyers, led by Stephen Kenny, who represented Hicks in Guantánamo, and played a major role in securing habeas corpus rights for the prisoners in 2004, explain, “A guilty plea induced by the unholy trinity of violence, threats and improper promises cannot be allowed to stand.” They argue that Hicks “agreed to ‘drink from the poisoned chalice’ and plead guilty because he did not have to admit to committing a crime and he would be allowed to return to Australia.”

The reference to not admitting to committing a crime refers to the Alford Plea that Hicks made, based on a precedent in US federal court in which, as Wikipedia describes it, “the defendant does not admit the act and asserts innocence,” but “admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty beyond a reasonable doubt.” As the Sydney Morning Herald put it, “he acknowledged the evidence but did not make any admissions.”

Explaining the reasons for his appeal, Hicks said, “I am not expecting to find justice at the military commission but this is a necessary step to get to the federal court, where I expect a fair hearing. As [President] Obama stated, the 2006 military commissions system failed to establish a legitimate legal framework.” He added, “I am looking forward to putting Guantánamo behind me, and this formal acknowledgment of the illegality of the military commissions system is the final step in that process. All I have ever asked for was the chance to have my day in court to prove my innocence.”

The Guardian noted that he also said that he wanted “formal recognition of my innocence so that the wrongs of the past committed against me can be righted –allowing me to heal and put it all behind me and move on with my life.” He added, “If I ever leave Australian jurisdiction, I can be retained by the US as an enemy combatant. That means I don’t need to be charged, I can never go in front of a court, can never go in front of a judge, and they’ll never need to give an excuse, a reason or a justification for why I’ve been detained except ‘he’s an enemy combatant.’ That’s just one of a whole heap of reasons.”

The Guardian also explained that Hicks, who now works as a panelbeater, “said he and his family are still dealing with the repercussions of his incarceration.” He said that he “has received counselling and medical treatment for injuries sustained in Guantánamo Bay, including back pain, broken bones, dental problems from not being allowed to brush his teeth for six years and psychological issues.”

Asked about the recent report detailing the complicity of medical personnel in the torture and abuse of prisoners, Hicks told the Guardian that it had happened to him. “They had teams called ‘biscuit teams’ — behavioural science consultation teams,” he said, adding, “The way they interrogate you in Guantánamo is they find out as much as they can about your past life, when it comes to fears, likes, dislikes. Then they do various experiments on you to see how you react to different situations. There was a lot of medical personnel that were involved in the process as well. I was forced to have a lot of injections that had very negative effects on me and obviously that’s medical personnel involved in that.” He also said, as the Guardian described it, that “cases of post-traumatic stress disorder were used against detainees, including abusive punishments against people who attempted suicide.”

As the Sydney Morning Herald noted, the Australian government “has already admitted there was not enough evidence that Mr. Hicks committed a crime when it dropped its proceeds of crime charge against him last year for collecting royalties on his book, Guantanamo: My Journey.”

Given the Hamdan ruling, it ought to be a straightforward matter for Hicks to have his conviction overturned, but in the appeal documents his lawyers also provide information about his treatment by the US authorities, which, they convincingly claim, constituted torture and led to Hicks making false statements. The appeal states, “Over the course of more than five years, Mr. Hicks was repeatedly beaten, sexually assaulted, threatened with deadly violence, injected with unknown substances and subjected to an entire arsenal of psychological gambits, ploys and subterfuges that had as their aim the destruction of his personality. He was stripped naked, deprived of sleep for extended periods, cast into solitary confinement, contorted into shapes that no human body should be forced to assume, and told that he would never again set foot on his native soil … Unless the word has simply lost its meaning in this new day, the abuse he endured constitutes torture.”

The appeal adds, as the Sydney Morning Herald described it, that Hicks was “despondent and suicidal when the government dangled the prospect of freedom before him.” and the Guardian explained that “his guilty plea was given under duress after an ‘inexcusable’ six years in Guantánamo Bay.”

I look forward to a favorable ruling sometime in the not too distant future, so that David Hicks can finally put Guantánamo behind him.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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