On Hicks and military commissions

David Glazier, a guest-blogger on one of my favorite blogs, a legal blog called Balkinization, wrote an insightful post on the confession of Australian detainee David Hicks and what it means for Hicks and the controversial military commission that tried him.

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.
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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.

There have been several such 'confessions' by major detainees, like that of Khalid Sheik Mohammed, and none of them can be taken seriously. Guantanamo and similar US detention facilities used in the 'war on terror' are the site of means of interrogation on unverified enemies of America; often that interrogation includes torture. After being locked up, tortured, and the works, for years, anyone could say anything. No matter how much the White House spins it — and the mainstream media only follows along — in no way are many extracted confessions credible, not least because they are not reported or witnessed by a third party (i.e. someone not in the government).