Former “Australian Taliban” David Hicks, the first man to be convicted of war crimes at Guantánamo, asked the military commissions appeals court to overturn his conviction on Tuesday, arguing he pleaded guilty to a terror charge as the desperate act of a tortured, suicidal captive at the prison camps in Cuba.
Hicks, now 38, got out of Guantánamo in 2007 after pleading guilty to “providing material support for terrorism,” a charge a U.S. federal appeals courts has disqualified as a legitimate war crime for Guantánamo captives.
The high-profile March 2007 plea deal, at a time when most military defense attorneys were challenging the war court framework, lent the Guantánamo trials an air of legitimacy in some legal circles. It also got Hicks out of Guantánamo and home to his native Australia where the case of the former kangaroo skinner turned self-styled soldier of fortune made the captive cause célèbre.
The 12-page appeal, filed Tuesday with the U.S. Court of Military Commission Review, argued that Hicks’ guilty plea was “unknowing, unintelligent and involuntary” and part of “a desperate attempt to secure his release from Guantánamo Bay after more than five years of detention.”
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His lawyers also invoked the October 2012 U.S. Court of Appeals decision that threw out the conviction of Osama bin Laden’s driver, Salim Hamdan of Yemen. Hamdan, like Hicks, was convicted of providing material support to terror, but the court ruled that specific crime could not be prosecuted at the Guantánamo war court retroactively to the court’s invention, in 2006.
U.S.-allied Northern Alliance troops captured Hicks in Afghanistan after the Sept. 11 terrorist attacks, and turned him over to U.S. forces. He was held aboard a warship off the coast as a valued intelligence asset — because he spoke English.
He was brought to the U.S. Navy base in southeast Cuba on the day Camp X-Ray opened, Jan. 11, 2002, and he was among the first 20 men photographed kneeling in shackles. “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,” Hicks’ lawyers wrote in the appeal, “and told that he would never again set foot on his native soil.”
Under the 2007 plea agreement, Hicks served a nine-month sentence, most of it in Australia.
It was unclear whether the Pentagon appeals panel would consider his appeal. If not, Hicks’ next stop would be at a federal civilian court in Washington D.C.
At the Pentagon, Army Lt. Col. Todd Breasseale noted that in his plea deal Hicks “waived any appellate review of his conviction in exchange for a reduced sentence that he could serve in Australia.” He also noted that the issue of “material support for terrorism” was still under review in the civilian court system.
According to the Associated Press, Hicks said in Australia Wednesday that the appeal is intended to help him get on with his life. “It is important, for myself and for my family and those who have supported me and had faith in me over the years,” he said. “It will help with closure and moving forward.”
A footnote in his lawyers' filing says the deal “was reportedly orchestrated by Vice President Richard B. Cheney as a political favor to Australian Prime Minister John Howard, who was in the midst of a hotly contested reelection campaign in which Mr. Hicks’ continued detention had become controversial.” Howard lost.
The chief prosecutor at the time, Air Force Col. Morris Davis, told reporters at Guantánamo, “What I hope is going to be reported is that we gave an al Qaida terrorist a full and fair trial.”
He subsequently resigned protesting political interference in the process. Davis said Tuesday he wasn’t surprised by the appeal, and that it was legitimate despite the appeals waiver as a jurisdictional issue.“Given that the U.S. Court of Appeals for the D.C. Circuit has ruled that material support for terrorism was not a legitimate war crime offense for conduct that predated the Military Commissions Act of 2006, the military commission lacked jurisdiction to try David Hicks for the only offense of which he stands convicted,” Davis said by email.
“It’s just another in a long line of embarrassments to come out of Guantánamo over the past dozen years.”
The retired colonel said he didn’t see anything that constituted torture in the Hicks case.
“I suspect his treatment was harsh, but that’s not unusual when you get captured in the midst of a war,” he said. “Unlike Khalid Sheik Mohammed, [Mohammed] al-Qahtani and a few others where there was no doubt that we tortured them, I don’t recall anything from the Hicks case that I thought reached that level.”
Hicks was represented in the appeal by attorneys at the New York Center for Constitutional Rights, Northwestern University School of Law professor Joseph Margulies and two Pentagon-paid attorneys at the Office of the Chief Defense Counsel for Military Commissions, Air Force Capt. Justin Swick and Samuel Morison, a civilian.
David Hicks pleaded guilty at a military commission pursuant to a plea agreement. As part of that agreement, David Hicks waived any appellate review of his conviction in exchange for a reduced sentence that he could serve in Australia. The availability of the Material Support for Terrorism charge for conduct prior to 2006 is still under consideration by the Court of Appeals for the D.C. Circuit.