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The Looking-Glass Sentence

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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March 31, 2007

It was a day of competing narratives. Who was the real David Hicks? In a jarringly strident sentencing argument in which he advocated the maximum sentence – by agreement, seven years – the military prosecutor intoned that the members of the Military Commission who had been flown in to decide Hicks’s sentence were on the “front line in the Global War on Terrorism” and “were face to face with the enemy – in this courtroom.”

Hicks – to whom the prosecutor repeatedly referred by one of his alleged aliases, Muhammad Dawood – had been a “valuable asset” to Al Qaeda, a western jihadist who could infiltrate western nations and cause great harm. “Muhammad Dawood will always be a threat until he changes his beliefs. How strong are those beliefs? 9/11 is a microcosm of that.”

It was one of several invocations of the 9/11 attacks, though it is undisputed that Hicks had no involvement in, or even prior knowledge of, those attacks. Hicks’s defense counsel Major Dan Mori seized on the disparity between the prosecutor’s rhetoric and the actual offense to which Hicks was pleading guilty. Hicks had never hurt anyone; had never fired a weapon at a U.S. soldier; had never planted a mine. He had been, Mori insisted, a misguided, poorly educated adventurer, who had trained with the Kosovo Liberation Army in Albania, then made a mistake by traveling to Pakistan and joining up with extremists.

But for all the prosecution talk of Hicks’s value to Al Qaeda, he had never been assigned a complex terror mission; rather, he had been placed in a trench. Hicks owed apologies to his family and to the Australian and American people, but he had been cooperative in U.S. custody and had already spent five years and four months in detention at Guantánamo – time for which he could not be given credit under the judge’s instruction. If the Commission wanted Hicks to be punished by seven years’ confinement, it should sentence him to one year and eight months – which would amount, in effect, to the maximum sentence.

Five years after the government had publicly branded Hicks one of the world’s most dangerous terrorists, it was more than a little surprising to hear the parties arguing over whether his sentence should be seven years or 20 months – both within the range of sentences a convicted criminal in U.S. courts might receive for selling drugs. But even that was a show. The prosecution and the defense were both aware that, by prior agreement, all but nine months of Hicks’s sentence would be suspended – so whether the Commission members chose the higher or lower sentence would make absolutely no difference. Hicks would be home soon, and free by the end of the year.

It was a remarkable revelation on a day full of them. Earlier, we had learned the details of Hicks’s guilty plea. Hicks agreed that the facts to which he was pleading could be proven against him beyond a reasonable doubt. It was roughly equivalent to an “Alford plea” under U.S. law, and it allowed Hicks to stipulate to the required facts while not directly confirming their truth. The significance of this maneuver would soon be made clear.

Hicks stipulated that the government could prove that he had traveled to Afghanistan in 2001; had attended various Al Qaeda training camps; had met Bin Laden himself and complained of the lack of training materials in English; had, upon learning of the 9/11 attacks, expressed personal approval; had participated in the Afghan war by joining a contingent of Al Qaeda fighters defending the Kandahar airport; and had ultimately been captured by the Northern Alliance while attempting to flee by taxi to Pakistan.

The judge inquired of Hicks whether he had personally reviewed the government’s evidence in support of those facts. Hicks said he had. What evidence had he seen? Hicks replied that he had seen notes from interrogations of himself and other detainees.

So Hicks’s guilty plea amounted to the following: He agreed that the government, on the basis of evidence obtained from him and other detainees through interrogation, could prove his guilt in the Military Commission system.

In other words, Hicks agreed that the facts necessary to prove his guilt in the Commission could be proven using evidence that might have been beaten out of him and others in U.S. custody.

In a separate provision, Hicks agreed that he had not been “illegally treated” while in U.S. custody, but even those words were carefully chosen. Hicks has previously alleged that he was subjected to brutal physical abuse when he was turned over to U.S. forces in Afghanistan.

But, in the Administration’s view, that treatment would not have been illegal at the time. Thus, in denying that he had been “illegally treated,” Hicks in no way denied that he had been abused and coerced.

Moreover, the plea agreement provided that Hicks would not speak to the media about the circumstances of his capture or detention for a period of one year – a provision plainly intended to prevent Hicks from describing his treatment and allowing the world to decide whether he had been tortured or coerced. The government will be hard-pressed to explain how this gag rule can be squared with the mantra that Military Commission proceedings are fair and “transparent.”

Rather than relate the proceedings that followed – which, after all, were essentially meaningless in light of the previous agreement that Hicks would serve no more than nine months – I’ll recommend a few of the better journalistic accounts, one from the L.A. Times and two in The Washington Post, here and”>here.

What are we to make of all this? How could it happen that, after more than five years, the very first case brought before a Military Commission – a system that, we were told, was necessary because it would be dangerous and impracticable to prosecute arch terrorists in U.S. courts – would result in a sentence of nine months? And what does the Hicks case tell us?

In U.S. courts, the accused must ordinarily be acquitted to be released. In Guantánamo, it turns out, the accused must plead guilty to be released – because, even if he is acquitted, he remains an “enemy combatant” subject to indefinite detention. It is a backdrop so inherently coercive that a guilty plea cannot be seen as a vindication of anything – only as proof of desperation.

As the Secretary of Defense rightly comprehends, the world will not perceive this system as legitimate – nor should it. Let’s hope that this first Guantánamo prosecution was also the last.

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