Australian “Terrorist” Plea Deal Shows Failings of Guantanamo Tribunal System

Marine Major Michael Mori screwed up. He represented Australian “terrorism” suspect David Hicks at his tribunal at Guantanamo Bay Cuba and got Mr. Hick’s only nine months in prison. Now Major Mori can look forward to following Navy Lieutenant Commander Charles Swift out of the military. Swift won the Supreme Court ruling last year that struck down the previous tribunal system. He was passed over for promotion and now must leave the military under its “up or out” promotion system.

David Hicks acknowledged that he fought with Al Qaeda in Afghanistan in late 2001 for two hours. He then sold his gun to raise cab fare to flee to Pakistan. He was sentenced to seven years in prison, with all but nine months suspended. He will serve his sentence in Australia.

Hicks also agreed to take back his accusations that he had been abused while in detention and not to speak to reporters for a year.

Hicks’ “war crimes” tribunal was the first completed at Guantanamo. He is also the only one charged in the tribunals created after the U.S. Supreme Court struck down earlier versions as violations of American constitutional rights to a fair trial and the Geneva Conventions protecting prisoners of war and others taken prisoner during a battle.

The lead up to and conduct of Hick’s tribunal shows the tribunal process to be far more political than legal. Military officers have referred to Hicks as a “convicted war criminal,” even though nothing in any war crimes treaty makes fighting on a battlefield a “war crime.” Even more telling is the bargain struck for Mr. Hicks’ silence. Jennifer Daskal of Human Rights Watch said this unusual agreement for Hicks’ silence indicates that the primary goal of the U.S. Government is protecting itself from the “disclosure of abuse.”

Cully Stimson Was Not Alone

A senior pentagon official resigned recently. Cully Stimson’s mistake was failing to keep government intimidation behind closed doors. Stimson, deputy assistant secretary of defense for detainee affairs, called it “shocking” that major American law firms could represent Guantanamo Bay detainees free of charge and said they would likely suffer financially after their corporate clients learned of the work. He said, in an interview on Federal News Radio: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms.” He added that he thought some law firms were not actually representing clients free of charge and were “receiving money from who-knows-where.”

Recent reports seem to indicate that Stimson’s comments reflect standard tactics for the current U.S. Government; many acting in support of the criminal rights established in the Bill of Rights to the United States Constitution find themselves branded traitors.

In the case of the Guantanamo Bay detainees, the process has been called into question again and again. Under American justice, the “worst of the worst” would be found guilty and properly punished. But, they would also have a chance to tell their whole stories in a public forum.

Along with other regrettable policies, intimidation of criminal defense attorneys who would represent Guantanamo detainees has done great damage to our reputation. The reputation of the United States as an honest broker in world events is nearly destroyed and Americans are reviled in many areas of the world where once we were revered. It is difficult to see how creating questions about the integrity of our tribunals, bargaining for the silence of accused criminals, and pressuring attorneys to disregard the ethical obligations of their profession will help put an end to terrorism.