Hicks v. United States Historic Case

At a Glance

Current Status 

On February 18, 2015, the U.S. Court of Military Commission Review issued a decision vacating David Hicks’s conviction.

Date Filed: 

February 19, 2002

Co-Counsel 

Civilian counsel Joseph Margulies and Stephen Kenny, and military defense counsel Samuel Morison and U.S. Air Force Major Justin Swick

Client 

Case Description 

Hicks v. United States was an appeal on behalf of former Guantánamo detainee David Hicks asking the U.S. Court of Military Commission Review to overturn his conviction for “providing material support for terrorism,” a charge that was invalidated in 2012 when the D.C. Circuit ruled in Hamdan v. United States (“Hamdan II”) that “material support” was not, and had never been, a crime under the international laws of war. The D.C. Circuit, sitting en banc, reached the same conclusion in 2014 in Al Bahlul v. United States (“Bahlul”). Starting with these rulings, the military commissions system set up by the Bush Administration in 2001 to confer a veneer of legitimacy to Guantánamo began to unravel. David Hicks was the first person to be charged in the initial iteration of these military tribunals. Like Guantánamo itself, this quasi-court system has been an affront to the rule of law and has enabled the U.S. government to evade accountability for torture and unlawful detentions. Hicks v. United States is part of CCR’s broader effort to challenge these abuses.

For more on the military commissions system and its undoing, see our factsheet.

David Hicks, an Australian citizen, was one of the first men brought to Guantánamo, where he was tortured and held for almost six years. In 1999, Hicks, then 23 years old, converted to Islam and left his homeland to wander the world. His travels took him to Afghanistan, where, shortly after 9/11, he was sold to the U.S. military by the Northern Alliance for a bounty and sent to Guantánamo. In 2002, with representation from the Center for Constitutional Rights and co-counsel Joseph Margulies, he filed one of the first habeas corpus petitions challenging the government's authority to detain individuals at Guantánamo indefinitely without due process. In 2007, under increasing pressure from the Australian government to return its citizen, the U.S. government offered 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 prison, he accepted the offer and pled guilty to a single “material support” violation, despite having never fired a weapon, and returned to Australia. He lived under a suspended sentence of seven years’ imprisonment, and continues to suffer the burdens and disabilities of his military commission conviction. For more on his story, see our client profile.

As of this date, the only two convictions the government has obtained by trial under the military tribunals at Guantánamo have now been vacated (Hamdan) or remain unresolved following vacatur (Al Bahlul). In the wake of these decisions, we argued that Hicks’s conviction should be invalidated on two grounds: (1) as a matter of law the military commission could not convict him for material support; and (2) his guilty plea was involuntary because it was obtained under torture. On February 18, 2015, the U.S. Court of Military Commission Review struck down David Hicks's conviction in a unanimous ruling.

Case Timeline

February 18, 2015

CMCR issues a decision vacating Hicks’s material support conviction

February 18, 2015

CMCR issues a decision vacating Hicks’s material support conviction

The government announces the same day that it would not appeal the decision.

January 21, 2015

CCR files reply brief in further response to the CMCR’s November 20, 2014 order

January 21, 2015

CCR files reply brief in further response to the CMCR’s November 20, 2014 order

January 16, 2015

The government files its response to the CMCR’s November 20, 2014 order

January 16, 2015

The government files its response to the CMCR’s November 20, 2014 order

The government concedes that Hicks’s conviction is constitutionally invalid but argues that the CMCR is powerless to remedy this fundamental miscarriage of justice because Hicks waived his appeal rights.

January 12, 2015

CCR files a notice of supplemental authority in further response to the CMCR’s November 20, 2014 order

January 12, 2015

CCR files a notice of supplemental authority in further response to the CMCR’s November 20, 2014 order

CCR notes that the Convening Authority for Military Commissions had recently dismissed the material support charges in the case United States v. Noor Uthman Muhammed as “required in the interests of justice and under the rule of law.”

December 19, 2014

CCR files a response to the CMCR’s November 20, 2014 order

December 19, 2014

CCR files a response to the CMCR’s November 20, 2014 order

CCR argues that under Al Bahlul Hicks's material support conviction must be vacated as a matter of law because he is actually innocent of any offense.

November 20, 2014

CMCR issues order lifting stay and directing parties to brief question of whether Al Bahlul decision requires vacatur of Mr. Hicks’s conviction

November 20, 2014

CMCR issues order lifting stay and directing parties to brief question of whether Al Bahlul decision requires vacatur of Mr. Hicks’s conviction

September 2, 2014

CMCR issues order continuing stay pending entry of mandate in Al Bahlul

September 2, 2014

CMCR issues order continuing stay pending entry of mandate in Al Bahlul

August 25, 2014

Government files opposition to our motion to lift stay and vacate conviction

August 25, 2014

Government files opposition to our motion to lift stay and vacate conviction

August 20, 2014

CCR files motion to lift stay entered by CMCR on March 7, 2014, and vacate Hicks's material support conviction based Al Balul ruling 

August 20, 2014

CCR files motion to lift stay entered by CMCR on March 7, 2014, and vacate Hicks's material support conviction based Al Balul ruling 

The D.C. Circuit's July 14, 2014, decision in Al Bahlul held that material support is not a war crime and cannot be tried by military commission.

March 7, 2014

CMCR issues order, on its own motion, reconsidering government’s motion to stay case pending further court review in Al Bahlul and orders case held in abeyance pending further order of the court

March 7, 2014

CMCR issues order, on its own motion, reconsidering government’s motion to stay case pending further court review in Al Bahlul and orders case held in abeyance pending further order of the court

February 25, 2014

CCR files notice in further response to CMCR’s December 4, 2013 order regarding jurisdiction and government opposes on February 28, 2014

February 25, 2014

CCR files notice in further response to CMCR’s December 4, 2013 order regarding jurisdiction and government opposes on February 28, 2014

December 19, 2013

Parties file briefs on jurisdiction 

December 19, 2013

Parties file briefs on jurisdiction 

The parties file opening briefs on jurisdiction on December 19, 2013, and answer briefs on January 10, 2014.

December 4, 2013
CMCR issues order vacating briefing schedule and orders parties to file briefs addressing only the court’s jurisdiction to decide appeal
December 4, 2013
CMCR issues order vacating briefing schedule and orders parties to file briefs addressing only the court’s jurisdiction to decide appeal
November 26, 2013
CCR files brief opposing stay or modification of briefing schedule
November 26, 2013
CCR files brief opposing stay or modification of briefing schedule
November 22, 2013

Government files motion to stay appeal pending further court review in Al Bahlul, or in the alternative to modify briefing schedule and address in first instance only CMCR authority to decide appeal

November 22, 2013

Government files motion to stay appeal pending further court review in Al Bahlul, or in the alternative to modify briefing schedule and address in first instance only CMCR authority to decide appeal

November 5, 2013

CCR files appeal on Hicks’s behalf in U.S. Court of Military Commission Review (CMCR), arguing his conviction for material support must be vacated under Hamdan v. United States (“Hamdan II”)

November 5, 2013

CCR files appeal on Hicks’s behalf in U.S. Court of Military Commission Review (CMCR), arguing his conviction for material support must be vacated under Hamdan v. United States (“Hamdan II”)

In Hamdan II, the D.C. Circuit held that Salim Hamdan's conviction for material support was unlawful because it was not a war crime at the time of his alleged offense. 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. In this appeal, we seek to have Hicks’s conviction before the Court of Military Commission Review overturned because it was based on a charge now recognized as impermissible.