Pentagon court annuls Australian’s ‘Get-out-of-Guantánamo’ guilty plea

Australian David Hicks was among these first 20 detainees brought the U.S. Navy base in Cuba the day the prison opened, Jan. 11, 2002.
Australian David Hicks was among these first 20 detainees brought the U.S. Navy base in Cuba the day the prison opened, Jan. 11, 2002. ASSOCIATED PRESS

A Pentagon appeals court Wednesday set aside the guilty plea of former Guantánamo detainee David Hicks, an Australia native who was held captive with other alleged terrorists for nearly six years.

In a decision that was both technical and the first of its kind, the U.S. Court of Military Commission Review agreed with Hicks that he hadn’t properly waived his appeal rights as a condition of his release in 2007.

“The waiver was invalid and unenforceable,” Judge Scott L. Silliman wrote for the three-judge panel.

Silliman, a former Air Force judge advocate and longtime professor at Duke University Law School, also rejected arguments that Hicks had waited too long to challenge his waiver. With those technical legal hurdles cleared, Silliman said, Hicks’ underlying conviction on a single count of providing material support to a terrorist organization collapsed.

“Both parties agree that (Hicks’) conviction cannot stand on the merits,” Silliman noted in the eight-page majority opinion.

The appellate court’s chief judge, Army Col. Eric Krauss, added a concurring opinion in which he sharply questioned the “dubious validity” of the military commission rules that permit an appellate waiver as part of a pretrial agreement.

J. Wells Dixon, an attorney with the Center for Constitutional Rights and a member of Hicks’ legal defense team, said in an interview that the decision was both “tremendously significant” for Hicks personally as well as important for the controversial military commission system overall.

Hicks, who was brought to the U.S. Navy base in Cuba the day the prison opened, was the first prisoner to be convicted by a Guantánamo military commission, by virtue of his guilty plea. Last month, a Pentagon official similarly threw out a former Sudanese captive’s guilty plea.

“This case should never have been brought,” Dixon said. “David Hicks was actually innocent of any offense.”

Born in 1975, Hicks traveled to Pakistan in 1999 and in 2000 received two months of military training with a group called Lashkar-e Taiba. In 2001, after the Sept. 11 terrorist attacks on the United States, the group was designated a foreign terrorist organization.

Hicks subsequently briefly helped guard a Taliban position in Afghanistan, but then he sold his weapon and tried to flee to Pakistan before being captured in December 2001 by Northern Alliance troops allied with U.S. forces.

As part of his plea agreement that secured his release, Hicks stated that he “has never been the victim of any illegal treatment at the hands of any personnel while in the custody or control of the United States.” But in a 2012 affidavit, prepared in Adelaide, Australia, Hicks recalled being beaten by men he believed to be U.S. special operations soldiers.

“I was only able to get a sentence or two out before they would again start hitting me, but as time went on the blows became more frequent,” Hicks stated.

Once in Guantánamo, Hicks recalled in his 74-page affidavit, he was initially held in a cage that was open to the wind, sun, dust, rain and tarantulas. He recalled being interrogated frequently and said he was threatened with being sent to Egypt for torture if he didn’t cooperate. Ultimately, he said he agreed to plead guilty only in order to return home.

“Having to give the appearance and seemingly admit that I was a terrorist and a supporter of terrorist attacks ripped my heart apart,” Hicks declared.

In a previous decision involving another Guantánamo detainee, the U.S. Court of Appeals for the District of Columbia Circuit threw out a military commission conviction on the charge of providing material support to a terrorist organization. The court reasoned that the offenses were not recognized as triable by a military commission at the time they occurred.

While acknowledging this earlier case “has important differences” with Hicks’ case, Silliman concluded “those differences do not dictate a different result.”

See a David Hicks slideshow here.