AIDP Blog

Articles in the NY Times and WaPo report that the Hicks guilty plea is seen by some as a “victory” or “affirmation” for the U.S. Administration. It can be seen in this light, but only if we look narrowly. Certainly, a case has been cleared. The first conviction will emerge from a Military Commission process that, heretofore, has only generated extensive constitutional litigation (and important precedent, such as Hamdan), with more litigation ongoing.

Part of the problem is that we’ve given little thought to the goal or purpose of punishing convicted terrorists. We haven’t assessed what we actually hope to achieve by punishing. Is it deterrence? If so - general or specific? Or is it retribution? Incapacitation? Reintegration? Reconciliation? To restitute those harmed? Or is the goal of punishment something more communicative and pedagogical - namely, what I call expressivism - to augment the moral value of law, stigmatize those who break it, and establish an authoritative public, and transnational, narrative regarding the heinousness of terrorist violence?

I have posted an essay on SSRN which posits that, based on an analysis of perpetrators of atrocity in other contexts, the most plausible justification for punishing convicted terrorists, in this case al-Qaeda terrorists connected to the September 11 attacks in the United States and other wide-scale attacks against civilians, is the expressive justification. Accordingly, it makes sense to structure process and punishment in a manner conducive to obtaining this goal. I argue that the 2006 Military Commissions Act, although better able to facilitate expressive goals than the commissions that had been struck down in Hamdan, still remains deficient in important regards. So, too, does the first output of that system, the Hicks plea bargain.

After over five years of detention at Gitmo, and a process largely lacking in due process as measured by international standards, Hicks perfunctorily pled guilty to providing material support to a terrorist organization. He will probably return home to Australia to serve sentence. A risk emerges that the public will learn little, if anything, about what he did and how his actions fit into the broader machinations of Al-Qaeda. The public risks losing the opportunity for a full, public condemnation of terrorist violence that a more fulsome public trial would have provided. There is little, if any, pedagogical or dramaturgical moment here. If one of the major purposes of atrocity prosecutions is to build a culture of rule of law, to authenticate historical narratives, and to condemn behavior that busts the global trust, then the Hicks conviction may fall short.

I hope that, when it comes to convicting him and sentencing him, the Commission issues a full judgment, replete with details, information, and jurisprudential connections, that it releases to the global public so as to be of pedagogical and expressive value.

I’m sure many readers will disagree with me about their merits, but I like these two op-eds.  The critics who proclaimed Hicks was an innocent have a lot less left to argue with now.  Granted, they may argue about a flawed process, but on the merits Hicks has definitively admitted his guilt. 

First, writing in The Daily Telegraph, Luke Mcllveen states that “Hicks is damned by his words.”

NO MATTER what David Hicks or his undergraduate groupies say, the incontestable fact is he has pleaded guilty to supporting terrorists

The low-life from the outskirts of Adelaide is likely to be home by the end of the year and you can already picture the crowds of Austudy-dredgers who will gather at the airport to greet his arrival.

But they should be clear on this: the man they’ve painted as an innocent adventurer is an assistant to terrorists by his own admission.

The argument of those who have staked their reputations on his innocence will be that the grossly unfair military tribunal in Guantanamo Bay forced his hand and that he only pleaded guilty to secure his freedom.

Well, if you believe that you’ll believe anything.

Second, writing in The Australian, Janet Albrechtsen declares “Gun-toting jihadi was not an angel.” 

An excerpt:

Finally, David Hicks, also known as Abu Muslim al Australia, aka Abu Muslim Phillipine, aka Muhammed Dawood, has pleaded guilty to the charge of providing material support for terrorism.  And now watch as the real PR campaign goes into angelic overdrive.  His vociferous cheer squad will proclaim his innocence, declaring the plea was the only way for Hicks to get out of Guantanamo Bay. 

* * * *

Forget about the ads where his father, Terry Hicks, declared his love for his son. Let’s come back to the inconvenient aspects of the Hicks saga, those that never make it on to a “Free Hicks” billboard: the law and the facts.

First to the law. His supporters have long claimed that what Hicks has or has not done is not the issue. It’s about justice, they say. And now they will say pleading guilty was Hicks’s only way to avoid a kangaroo court, the US Military Commission. 

* * * *

Now to the facts. Hicks has pleaded guilty to his extensive links to terrorist organisations and his activities in Afghanistan, where he met Osama bin Laden and completed al-Qa’ida training courses. 

* * * *

Long before his admission yesterday, Hicks has made plenty of other, earlier admissions: training with the Kosovo Liberation Army in Albania and fighting with Lashkar-e-Toiba, where he “got to fire hundreds of rounds” into Indian-controlled Kashmir. In letters home to dad, he called himself a “well-trained and practical soldier”. He admitted to preparing for martyrdom because “the highest position in heaven” goes to those who “go fighting in the way of God against the friends of Satan”.
 

According to an AP Report, Hicks “pleaded guilty Monday to a war-crime charge of providing material support to terrorism.”

Hicks entered the plea before a military judge in a courtroom on this U.S. naval base. Hicks had deferred entering a plea during his arraignment earlier in the day, but the presiding officer, Marine Col. Ralph Kohlmann, convened another session after lawyers told him Hicks would enter a plea.

And from the New York Times:

After Mr. Hicks’s guilty plea, the judge adjourned the case for further proceedings this week, evidently so that the lawyers could settle on what specific acts he may acknowledge. The sentence will be decided by a five-member military commission.

Lawyers have said in recent days that there have been plea negotiations since January. They have suggested that he might serve out the remainder of any sentence in Australia. Asked whether Mr. Hicks might be back in Australia by the end of the year, a military prosecutor said, “The odds are pretty good.”

According to a DoD Press Release (with a Hat Tip to Bobby Chesney):
Terror Suspect Transferred To Guantanamo

The Department of Defense announced today the transfer of a dangerous terror suspect to Guantanamo Bay, Cuba.

Abdul Malik, who was captured as a result of our ongoing conflict against Al Qaida, has admitted to being involved in terrorist attacks in East Africa.

Malik has admitted to participation in the 2002 Paradise Hotel attack in Mombasa, Kenya, in which an explosive-filled SUV was crashed into the hotel lobby, killing 13 and injuring 80. He also has admitted to involvement in the attempted shootdown of an Israeli Boeing 757 civilian airliner carrying 271 passengers, near Mombasa.

The capture of Malik exemplifies the genuine threat that the United States and other countries face throughout the world in the war on terrorism. Due to the significant threat this terror suspect represents, he has been transferred to Guantanamo. The detainees being held at Guantanamo have provided information essential to our ability to understand better how Al Qaeda operates, and thus to prevent future attacks against innocent civilians.

As with all the detainees in Guantanamo, Malik will undergo a combatant status review tribunal, where he will be given the opportunity to review an unclassified summary of the evidence against him and contest his enemy combatant status. The International Committee of the Red Cross will be granted access to this detainee. With today’s transfer there are approximately 385 detainees at Guantanamo Bay, Cuba.

As the military commissions begin anew tomorrow, I’m struck by the dearth of coverage regarding the allegations against Detainee David Hicks, the first detainee to be tried under the military commissions process established by Congress after the Hamdan opinion ruled that the original commissions established by President Bush violated Common Article 3 of the Geneva Conventions.The allegations against Detainee Hicks are serious, yet I can’t find a single recent news report which details the allegations beyond the name of the charge “providing material support” and a brief summary of alleged facts.  Professor Don Rothwell of Australian National University writing in The Canberra Times sums things up as follows:

What then can be expected of the hearing this week? First, it will give the US an opportunity to outline its case. The charge sheet refers to Hicks’s experience in Kosovo, his conversion to Islam, and travels to Pakistan and Afghanistan in 1999 and 2000. The principal allegation is that Hicks between December 2000 and December 2001 did in Afghanistan intentionally provide material support or resources to an international terrorist organisation engaged in hostilities against the United States, namely al-Qaeda. The most important part of the hearing, however, will arrive when Hicks gets the opportunity to plead.

The Washington Post also provides some additional detail:

…in 1999, angered by media coverage of Serbian atrocities against Muslims in Kosovo, Hicks traveled to Albania to join the paramilitary Kosovo Liberation Army (KLA), although he claimed he saw no fighting.The U.S. charge sheet against him says Hicks completed military training at a KLA camp and engaged in hostile action before returning to Australia, where he converted to Islam.In 2000, Hicks went to Pakistan, where he began training with militant network Lashkar e-Toiba. The U.S. charge sheet says Hicks went to Afghanistan in January 2001 where he met al Qaeda leader Osama bin Laden.

The 10 page charge sheet is available here.

The government provides quite a bit of detail in their allegations against Detainee Hicks:

• Joined the Kosovo Liberation Army in May 1999, and fought on behalf of Albanian Muslims, engaging in hostile action before returning to Australia.
• Converted to Islam and in November 1999, traveled to Pakistan where he joined the terrorist group Laskhar-e Tayyiba (LET).  A group whose known goals include violent attacks against property and nationals of India as well as opposition to Hindus, Jews, Americans and other Westerners. 
• After Joining LET Hicks traveled to Kashmir and engaged in hostile action against Indian forces. 
• In January 2001 Hicks with assistance from LET traveled to
  Afghanistan and attended al Qaeda training camps. 

He is charged with Providing Material Support for Terrorism, specifically:

• Hicks attended al Qaeda training camps, including training in weapons familiarization and firing, land mines, tactics, topography, field movements, basic explosives, and other areas. 
• Hicks trained in al Qaeda’s guerilla warfare and mountain training course.
• Hicks expressed to bin Laden his concern over the lack of English al Qaeda training material
• Muhammed Atef the military commander of al Qaeda after an interview recommended Hicks for attendance at al Qaeda’s urban tactics course, which Hicks attended.
• Hicks personally collected intelligence on the American Embassy.
• On September 12, 2001 knowing that the September 11, 2001 attacks had occurred and were perpetrated by al Qaeda, Hicks returned to Afghanistan and joined with al Qaeda. 
• Upon reporting for duty in Khandar, Afghanistan, Hicks chose to join a group of al Qaeda fighters near the KhandaharAirport.
• Hicks was issued an AK-47, and on his own armed himself with ammunition, and grenades to use against US and Coalition forces. 
• Hicks guarded an enemy tank position and trained others at his location.
• Hicks looked for another opportunity to fight, and eventually found his way to the frontlines in Konduz. 
• On the front lines, Hicks along with John Walker Lindh and other al Qaeda and Taliban forces engaged in combat against coalition forces.  Hicks spent two hours on the frontline before it collapsed and he was forced to flee. 
• Hicks, while under direct fire, was chased by Northern Alliance fighters.  He used his Australian passport to flee toward Pakistan, after selling his weapon he took a taxi toward Pakistan but was picked up by Northern Alliance forces. 

The information contained above constitutes a summary of the allegations against Detainee Hicks, however the level of detail provided suggests that the government has significant evidence provided either by Detainee Hicks, or others.  I’m surprised that a full accounting of this information has not been detailed somewhere else.  (or perhaps it has but I have not read it, pointers are welcome).

I seem to recall that this time of year is when we all start to look for the new U.S. News and World Report law school rankings.  In trying to figure out when the rankings are due out, I came across this post at Brian Leiter’s Law School Reports regarding an announcement by the U of Florida Dean, seeking to preempt a possible drop in UF rank. 

According to Dean Jerry, an increase in reported class size, as calculated by U.S. News will account for their drop.  His full memo on the topic is located here.

I’m still looking for the definitive answer on when the U.S. News rankings are due out, if someone finds it please drop me a pointer. 

Guantanamo Detainee David Hicks filed a Motion to Enjoin his military commission proceedings, scheduled to begin in Guantanamo this Monday.  In an 11 page Memorandum opinion, Judge Kollar-Kotelly denied his motion. 

Hicks asked the court to enjoin all military commission proceedings until a determination was made by the U.S. District Court for the District of Columbia regarding his habeas challenges and challenges to the jurisdiction and procedures of the military commissions, at a minimum enjoining proceedings “until the Supreme Court decides whether to grant certiorari in Boumediene, in order to protect his asserted right to pre-trial review of those proceedings.”  (memorandum opinion at 1)

The District Court concluded “…it lacks jurisdiction to entertain Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and therefore is without authority to issue the injunction Petitioner seeks in his Motion to Enjoin.” (memorandum opinion at 2).

More to follow later, you can read the entire opinion here: (hicks-injunction-motion-denied.pdf ). 

Thom Shanker and David Sanger are reporting in the New York Times today that both Defense Secretary Gates and Secretary State Rice advocated for Bush to shut down the enemy combatant detainee operation at Guantanamo Bay, citing Bush’s own public hope that it could be closed as well as the growing domestic/international negative impact that G’tmo continues to have on U.S. (essentially putting America in the role of hypocrite when it pushes for strengthened human rights elsewhere). However, Vice President Cheney, backed by Attorney General Gonzales successfully convinced the president otherwise, noting that there is no clear answer on what else to do with the detainee population.

There are about 385 detainees still being held at G’tmo, some of whome are awaiting trial four years after their capture before the hotly contested and legally questionable military tribunals. Secretary Gates did, however, successfully kill plans to build a $100 million courthouse and extended detention compound at G’tmo, arguing that to move forward with that project would amount to admitting that the detainee operation would be more permanent in nature than the government has been willing to admit thus far.

Typically when a Secretary of Defense and Secretary of State align on a given foreign/security policy issue, they carry the day. That Gates and Rice were unable to sway the president to effectuate his own repeated promise to close the facility in the face of countervailing arguments from the Vice President and Attorney General speaks volumes about the continuing success of Cheney’s hypnotic spell over the president. Whether that effect will be ameliorated on this particular issue by the imminent demise of Gonzales remains to be seen; but I doubt it. Cheney has proven time and again that he’s quite comfortable being the lone voice on issues that he cares about while (usually successfully) concealing his tracks.

Terrorism is not funny.  But America’s counter-terrorism policies and tactics sometimes border on the absurd.

Exhibit A: Just last week the AP ran a story that reported that the FBI had issued a “cautionary bulletin,” stating that “suspected members of extremist groups have signed up as school bus drivers in the United States.”  (See Cleveland Plain Dealer, March 17, 2007, at A7).  The article went on to report that the FBI spokeman, Rich Kolko, said “There are no threats, no plots and no history leading us to believe there is any reason for concern.”  Wow, that’s useful.

Exhibit B: When I was in the airport yesterday I heard over the loud speaker the all-too familiar words: “Warning, the terrorism threat level has been raised to Orange.”  Orange (“high”) is the second highest threat level, just below “severe” and above “elevated.” In my job I fly often, and since the Advisory System was launched in March 2002, I can’t remember ever hearing that the threat level was less than orange.  During an Orange Threat we’re supposed to be hyper vigilent for suspicious behavior, but it’s like having one-too many fire drills, no one is paying attention anymore.

Exhibit C:  Who can forget FEMA’s prescription for surviving a dirty bomb or biological attack: put up plastic sheeting with duct tape to create a “safe room” when directed by authorities.  (See Washington Post, August 6, 2002, at A1).  This created long lines at Home Depot, but it immediately struck me as about as useful as the “duck and cover” drills the government required when I was a kid  – as if hiding under a school desk would save you from an atomic blast.

We can laugh at it, sure, but then one thinks, “what is this really about?”  Is this merely CYA so that government officials can deflect blame if there is another major terrorist incident?  Do government officials want to keep us in a state of intense fear to justify their legislative agenda?  And what’s the cost to society?

If you want to read a thought provoking book that attempts to answer those questions, I recommend, Bob Mueller’s “Overblown: How Politicians and the Terrorism Industry Inflate Security Threats, and Why We Believe Them”  available at:

http://www.amazon.com/Overblown-Politicians-Terrorism-Industry-National/dp/1416541713/ref=pd_bbs_sr_1/002-2328732-9497641?ie=UTF8&s=books&qid=1174578773&sr=1-1

For an upcoming AIDP American National Section Conference, I’m contemplating convening an interantional symposium of experts to discuss and debate this issue, and I invite your ideas about possible speakers.

Michael P. Scharf

President of the AIDP American National Section

Professor of Law and Director

Frederick K. Cox International Law Center

Case Western Reserve University School of Law  

UPDATE:

Writing in the comments, GoochE320 says: “You should elaborate on what you mean by ’sovereignty issues.’…”

First off, thanks to GoochE320 who is our first commenter!  Welcome aboard, tell your friends about us, etc. 

Indeed, let me clarify.  The sovereignty issues I refer to are U.S. notions of sovereignty.  The very American idea that foreign governments/institutions will not tell the U.S. how to conduct its affairs–including who we prosecute or don’t prosecute.  I’m not taking a position on this notion here, other than to say that it is a real one which could pose an obstacle to the U.S. handing over a former President.  Some representative concerns voiced by U.S. ICC opponents are best summed up here:

US President George Bush and UK Prime Minister Tony Blair may one day face war crimes charges before the International Criminal Court (ICC) at The Hague, according to ICC Chief Prosecutor Luis Moreno-Ocampo.  Moreno-Ocampo said Sunday that the ICC could investigate allegations of war crimes stemming from the conduct of coalition forces in Iraq, so long as Iraq agrees to ratify the Rome Statute and accede to ICC jurisdiction.

A related Telegraph report states: “Luis Moreno-Ocampo urged Arab countries, particularly Iraq, to sign up to the court to enable allegations against the West to be pursued.” 

Back in 2002, Kenneth Roth of Human Rights Watch predicted such a possibility, although he was speaking more about British troops than Tony Blair himself:

 The ICC thus could prosecute British forces for war crimes committed in Iraq, even though American forces would be exempt. The ICC would act only if British authorities were unwilling or unable to seek justice, but even this limited oversight is significant.  
 
The Pentagon detests the ICC and wants to deny it any operational impact. But that is no longer an option for Britain. The criminal liability of its troops is now on the line. 

The scenario seems overblown to me.  I can’t imagine a circumstance where the United States would allow the ICC to prosecute a former president.  There are far too many sovereignty issues.  Moreover, with only 60% of Americans supporting referral of Darfur to the ICC— a case which does not implicate sensitive issues of American sovereignty – I think it unlikely there would ever be support for allowing a former president to be prosecuted in the ICC.