One of the remaining few convictions at a military court at the U.S. base in Guantánamo Bay, Cuba, appears to be on shaky ground.
Prosecutors concede in a legal filing that the conviction of Australian David Hicks may no longer be valid, even as they argue that it should be upheld because the former Guantánamo prisoner agreed not to appeal as part of a plea deal that got him home.
The filing to the U.S. Court of Military Commission Review was under seal Thursday, but was published this week by the online news site ProPublica. A Pentagon spokesman, Army Lt. Col. Myles Caggins, said he could not comment on the document until it is released.
Hicks, now 39, was the first person convicted by military commission at the base in Cuba, and one of six to be convicted and sentenced. He pleaded guilty in March 2007 to providing material support to terrorism with most of his seven-year sentence suspended and he was released by the end of that year. Last year, he appealed that conviction.
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Last year, the U.S. Court of Appeals for the District of Columbia ruled in the case of a Yemeni prisoner, Salim Hamdan, that material support is not a legitimate charge for the Guantánamo tribunals for conduct that occurred before 2006, when Congress passed the Military Commissions Act. The basis of Hicks’ conviction was that he trained with al-Qaida in Afghanistan in 2001.
“Hicks was convicted of something that was not a crime at the time and so the military commission couldn’t put him on trial, couldn’t accept his guilty plea, couldn’t accept his plea agreement and couldn’t accept the waiver of his appeal rights,” said one of his attorneys, Wells Dixon of the New York-based Center for Constitutional Rights.
The filing signed by the chief prosecutor, Army Brig. Gen. Mark Martins, argues that Hicks’ appeal should be dismissed because the Australian waived his right to a challenge in exchange for a lesser sentence and a transfer home. He adds that if the court allows the case to proceed, the conviction should be vacated.