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There is a dangerous debate in the Senate right now. Once again, Republicans have proposed…
February 18, 2015, Washington D.C. – Today, the U.S. Court of Military Commission Review (CMCR)…
February 5, 2015 – In advance of today’s Senate Armed Services Committee hearing on Senator…
David Hicks is an Australian citizen and one of the first men detained at Guantánamo Bay after 9/11. During the five and a half years he spent at Guantánamo, Mr. Hicks was regularly beaten, psychologically manipulated, subject to sleep-deprivation, and held in isolation for prolonged periods of time, practices which the international community recognizes as torture.
In early 2002, Mr. Hicks, along with two other CCR clients, filed the first habeas corpus petition challenging the government’s authority to detain them at Guantánamo indefinitely and without due process of law. Despite CCR’s 2004 victory in Rasul v. Bush, in which the Supreme Court rejected the notion that detainees could be held at Guantánamo outside of any law, the U.S. government refused to release Mr. Hicks. Instead, it charged him in the first iteration of post-9/11 military commissions. After the Supreme Court struck down those commissions in 2006 for violating military and international law, Congress created a replacement military commission system and the government charged Mr. Hicks with a novel “war crime” previously unknown to international law: “providing material support for terrorism.” Before he could be tried under the new regime, the U.S. government, in response to mounting international scrutiny and pressure from the Australian public to return its citizen, quickly offered Mr. Hicks a plea deal that would allow him to go home to Australia. Desperate to leave Guantánamo and escape the torture he had been subjected to for over five years, Mr. Hicks accepted the offer, pled guilty to a single “material support” violation, and returned to Australia in May 2007.
In October 2012, the D.C. Circuit held in Hamdan v. United States (“Hamdan II”) that providing material support for terrorism is not a war crime that can be charged and tried by military commission. Mr. Hicks is now appealing his conviction in the wake of Hamdan II on two grounds: (1) the military commission was without jurisdiction to convict him for material support; and (2) his guilty plea was involuntary because it was obtained under torture. Mr. Hicks seeks to invalidate his conviction and, finally, clear his name.
David Hicks was released from Guantánamo on May 20, 2007. He was imprisoned for about seven months in Australia and then freed. He is currently living under a suspended sentence of seven years’ imprisonment and continues to suffer the burdens and disabilities of his military commission conviction. He appealed his conviction on November 5, 2013, to the U.S. Court of Military Commission Review. He seeks a summary order vacating his conviction because his entitlement to relief is clear and dispositive under Hamdan II, and further briefing and argument would serve no purpose. The appeal and request for a summary order are pending.
The ordeal David Hicks went through in his five and a half years at Guantánamo illuminates many of the most fundamental flaws with Guantánamo and the military commissions.
David Hicks was born in 1975 and grew up in Adelaide, South Australia. As a young man dissatisfied with his surroundings, Mr. Hicks converted to Islam and left his homeland at the age of 23 to travel around the world. His travels eventually took him to Afghanistan, where, shortly after 9/11, he was captured by the Northern Alliance and sold to U.S. forces. After weeks of interrogation and beatings by the U.S. military, Mr. Hicks was sent to the newly-opened detention center at Guantánamo Bay, Cuba, to be detained indefinitely and incommunicado. He was among the first prisoners to be sent to Guantánamo.
Mr. Hicks' Torture at Guantánamo
For over two years, Mr. Hicks had no access to a court or attorney, and no reliable contact with the outside world. During the five and a half years he spent at the prison camp, he was subjected to some of the worst physical and psychological abuses known to have been practiced inside the prison, practices which the United Nations, the International Committee of the Red Cross, and the international community have unanimously decried as torture.
Mr. Hicks was first sent to Camp X-Ray, the infamous open-air detention facility at Guantánamo, where he was held in a 64-square-foot wire cage fully exposed to the elements, interrogated more than 50 times, and subject to sleep-deprivation for up to two weeks. The interrogations continued throughout his five and a half years at the prison camp, and regularly involved physical violence and threats designed to break down his will and destroy any hope of release. One often-used interrogation technique involved short-shackling him to the floor of an interrogation room and leaving him there for hours on end, up to an entire day, while subjecting him to extreme heat and extreme cold. Mr. Hicks was also placed in solitary confinement for prolonged periods of time. He spent sixteen months inside a room in Camp Delta without access to natural light, completely isolated from other prisoners. For eight of those months, he was not allowed outside to see the sun. In Camp 5, the lights were kept on inside his cell 24 hours a day, and he spent months in sleep-deprived agony. Throughout his stay at Guantánamo, Mr. Hicks was regularly stripped naked, beaten, threatened with deadly violence, psychologically manipulated, and injected with unknown substances. The abuse, combined with the psychological torment of not knowing if he would ever leave the prison, was nearly unbearable. Mr. Hicks became deeply depressed and at times contemplated committing suicide.
In February 2002, at the request of Mr. Hicks’ family members, CCR and co-counsel Joseph Margulies filed a habeas petition in federal court challenging the Executive’s authority to detain men at Guantánamo without ever having to answer to a court. The D.C. District Court dismissed his petition, and the Court of Appeals for the D.C. Circuit affirmed the dismissal in 2003. A year later, CCR appealed Mr. Hicks’s case – which was consolidated with several other habeas petitions – to the Supreme Court, and won. In the landmark ruling Rasul v. Bush, the Court held for the first time that individuals detained at Guantánamo must be given the right to challenge their detention through a habeas corpus petition in a federal court before a federal judge.
In the meantime, the U.S. government had filed charges against Mr. Hicks in the military commissions, a system created by President George W. Bush in the weeks following the September 11th attacks to try those captured in the “War on Terror.” In June of 2006, before his commissions case could proceed, the Supreme Court again stepped in, ruling in Hamdan v. Rumsfeld (“Hamdan I”) that the commission system that President Bush had created by executive order (which among other problematic features permitted as evidence statements made under torture) violated the Uniform Code of Military Justice and the Geneva Conventions. As a result of that ruling, that commission system was abolished and the initial charges against Mr. Hicks were dismissed.
Rather than release Mr. Hicks from Guantánamo, the U.S. government again attempted to fashion from scratch an ad hoc system of justice for prisoners at Guantánamo Bay. Congress passed the Military Commissions Act (MCA) four months after the Hamdan I decision, setting up new (but still inadequate and unlawful) commission procedures for trying individuals held at Guantánamo. In addition, the MCA declared that certain acts that had never before been violations of the international law of war would now be considered war crimes, including “providing material support for terrorism.” In February 2007, Mr. Hicks was charged with material support for his alleged actions prior to September 11th.
Under increasing pressure from the Australian government to return its citizen, the U.S. government quickly offered Mr. Hicks a plea deal. Desperate to leave Guantánamo after more than five long years of abuse and torture, and knowing that pleading guilty to a war crime would likely be the only sure way out of the prison, Mr. Hicks took the offer, pleading guilty to a single charge of material support for terrorism in exchange for a sentence of seven years’ imprisonment in Australia and a year-long “gag” order that prohibited him from talking about Guantánamo. Under the agreement, all but nine months of his prison term would be suspended, meaning the gag order would last longer than his time in prison, and thereby ensure that revelations about his torture and criticisms of the Australian government’s failure to bring him home earlier would not undercut Prime Minister John Howard’s reelection efforts.
Mr. Hicks returned home to Australia on May 20, 2007, and was freed from prison in Australia on December 29, 2007. Since then, he has spoken candidly about his time at Guantánamo and written eloquently about his harrowing experience at the hands of the U.S. military. Although he is no longer in prison, Mr. Hicks still remains under the suspended portion of his sentence, convicted of something that was not a war crime when he acted, by a legal system criticized by the international community as an illegitimate “kangaroo court.”
Now, six years after he pled guilty to material support in order to escape Guantánamo, the military commissions set up by Congress are unraveling under judicial scrutiny. In October 2012, the D.C. Circuit held in Hamdan II that material support – the same crime Mr. Hicks was charged with – was unlawful because it was not, and had never been, an offense under the laws of war. A few months later, the D.C. Circuit vacated the conviction of another Guantánamo detainee in the case Al Bahlul v. United States, on the government’s own admission that none of the charges in that case – material support, conspiracy, and solicitation – could be considered war crimes under the D.C. Circuit’s decision in Hamdan II. The D.C. Circuit is now considering the Al Bahlul case en banc. As of this date, the only two convictions the government has obtained by trial in the nearly 12 years Guantánamo has been open have now been vacated (Hamdan) or remain unresolved following vacatur (Al Bahlul). Like all novel, ad hoc systems, the very novelty of the commissions has been their undoing. Ironically, the Obama administration continues to press forward some of the most significant terrorism prosecutions in our history before these same commissions rather than bring those cases to the time-tested federal courts, guaranteeing years of similar legal uncertainty on appeal over the validity of any verdicts reached at trial.
Mr. Hicks is represented in his appeal by civilian counsel CCR, Joseph Margulies, and Stephen Kenny, and military defense counsel Samuel Morison and U.S. Air Force Major Justin Swick.
On February 19, 2002, David Hicks, along with two British men also detained at Guantánamo, filed a petition for habeas corpus, Rasul v. Bush, in the D.C. District Court.
On July 30, 2002, the D.C. District Court dismissed the habeas petition, holding that a petition for habeas corpus is not available to non-U.S. citizens detained outside of United States jurisdiction.
On March 11, 2003, the D.C. Circuit affirmed the lower court’s decision. CCR filed a petition for certiorari in the Supreme Court on September 2, 2003. The Court granted review on November 10.
In June 2004, while Rasul was pending before the Supreme Court, Mr. Hicks was charged in the military commission system created by the President’s Military Order of November 13, 2001. The other two petitioners in Rasul were released to the U.K.
On June 28, 2004, the Supreme Court ruled in Rasul v. Bush that individuals detained at Guantánamo must be given the right to challenge their detention through a habeas corpus petition in federal court.
On June 29, 2006, the Supreme Court issued a decision in Hamdan I, ruling that the military commissions set up by President Bush violated military and international law. Following this decision, the military commissions were abolished and the charges against Mr. Hicks were dismissed.
On October 17, 2006, the Military Commission Act of 2006 was signed into law. The MCA authorized the creation of a new military commission system and specified new crimes that could be tried by military commission.
On February 2, 2007, the government swore charges against Mr. Hicks in the new military commission system. It charged him with material support for terrorism, a newly-established crime under the MCA.
On March 30, 2007, pursuant to a plea agreement reached between Mr. Hicks and the U.S. government, Mr. Hicks pled guilty to material support. He was sentenced in the military commission to seven years’ imprisonment, with all but nine months to be suspended.
On May 20, 2007, Mr. Hicks was released from Guantánamo to his native country of Australia to serve out the remainder of his unsuspended sentence.
On December 29, 2007, Mr. Hicks was released from imprisonment in Australia. He remains under a suspended sentence.
On October 16, 2012, the D.C. Circuit held in Hamdan II that material support was not a war crime at the time Mr. Hamdan was alleged to have committed the offense.
On January 25, 2013, the D.C. Circuit vacated military commission convictions for material support, conspiracy, and solicitation in Al Bahlul v. United States, in part based on the government’s own admission that Hamdan II required reversal of Mr. Al Bahlul’s convictions.
On November 5, 2013, Mr. Hicks filed an appeal in the U.S. Court of Military Commission Review (CMCR), arguing that his conviction for material support must be vacated under Hamdan II.
On November 22, 2013, the government filed a motion to stay the appeal pending further court review in the Al Bahlul case, or in the alternative to modify the briefing schedule and address in the first instance only the CMCR’s authority to decide the appeal.
On November 26, 2013, Mr. Hicks filed a brief opposing the stay or modification of the briefing schedule.
On December 4, 2013, the CMCR issued an order vacating the briefing schedule and ordered the parties to file briefs addressing only the court’s jurisdiction to decide the appeal.
The parties filed opening briefs on jurisdiction on December 19, 2013, and answer briefs on January 10, 2014.
On February 25, 2014, Mr. Hicks filed a notice in further response to the CMCR’s December 4, 2013 order regarding jurisdiction. The government opposed on February 28, 2014.
On March 7, 2014, the CMCR issued an order, on its own motion, reconsidering the government’s motion to stay this case pending further court review in Al Bahlul. The CMCR ordered the case held in abeyance pending further order of the court.
On August 20, 2014, Mr. Hicks filed a motion to lift the stay entered by the CMCR on March 7, 2014, and vacate his material support conviction based on the D.C. Circuit’s July 14, 2014 decision in Al Bahlul, which held that material support is not a war crime and cannot be tried by military commission.
On August 25, the government filed its opposition to Mr. Hicks’s motion to lift the stay and vacate his conviction.