March 27, 2007 – “I Don’t Look at it as a Victory”

Military Commission Trial Observation

Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Hina Shamsi – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

March 27 , 2007

“I Don’t Look at it as a Victory”

That was Col. Morris Davis, the chief military commissions prosecutor, at Monday night’s press conference after Australian detainee David Hicks pled guilty to a charge of material support for a terrorist organization. He was absolutely right (though I doubt we’d agree on the reasons). It was a loss for anyone who hoped that American justice, as we traditionally understand it, would show itself in the military commissions hearing room.



The question in everyone’s mind is why did David Hicks plead? His lawyers and family gave few clues, as you would expect with the details of the plea still to be finalized. But whether he stood a fair chance in a transparent system surely must have played a large role in the decision-making.

Déjà vu all over again.

In one sense, the new proceedings were indistinguishable from the old: the greater part of the day was marked by ad hoc decision-making and disputes about issues as fundamental as a defendant’s right to counsel of his choice. In another sense, the new proceedings were worse: by the end of the day, the defendant, who had lost two of his three lawyers, plead guilty in a military proceeding to a crime that does not exist under the laws of war, in a process tainted by outside influence and political considerations.

A key development yesterday was a new variation on the old military commissions theme of a detainee’s legal representation. Rules to govern the conduct of civilian defense counsel haven’t yet been issued by the Secretary of Defense – the only person allowed to issue those rules. Rather than waiting for all the appropriate rules and regulations for the system to be in place, the military commissions judge, Col. Ralph H. Kohlmann, fashioned his own solution. He asked Joshua Dratel, Hicks’s long-time civilian counsel, to sign a form stating he would comply with applicable regulations. Dratel explained yesterday that he could not ethically agree to comply with regulations that did not yet exist and the contents of which he did not therefore know. Indeed, Dratel had reason to be leery of what the regulations might be; the original regulations proposed under the old military commissions system, would have had detainees’ lawyers violate fundamental ethical duties. Dratel therefore offered a compromise: instead of signing a document that said he would comply with “all applicable regulations”, Dratel was willing to say he would comply with “all existing regulations”. Kohlmann was not satisfied and held that Dratel was not qualified to serve as Hicks’s civilian counsel.

As David Hicks said, “I’m shocked because I just lost another lawyer.” (Rebecca Snyder, another member of the defense team had earlier been excluded by the judge based on his interpretation of a contested – and poorly drafted – provision of the rules for military lawyers detailed to represent detainees.)

A Plea Deal That Will Allow Hicks To Go Home?

A poignant source of insights on David Hicks’ mindset came from his father. Terry Hicks is a short, stocky man (his son takes after him physically), with a creased face and tired, sad blue eyes. During the first recess, he was surrounded by the reporters and observers in the courtroom, and quietly answered questions about what happened when he saw his son for the first time in three years. Terry said he and his daughter (also here from Australia) were able to hug David, who cried. He described David as heavier, “puffier” than he had been and gently deflected any questions about a possible plea deal.

Asked whether he told David about how much public support in Australia had grown for his return – to my mind a key reason for the speed with which this whole thing is proceeding – and whether David was happy, Terry Hicks said “yes, but he was too busy trying to tell us everything that was happening to him.” What are some of the things happening to David Hicks? His father said that noise and lights continue to be used to disrupt sleep. He added that the detainees were only able to exercise between 6 p.m. and 3 a.m. and David was often woken around 3 a.m. in order to exercise. Terry summarized David’s current state, “At the moment he’s ok, but when everyone goes, that’s harder, there are too many thoughts.”

After more than five years in custody, David Hicks watched on Monday as every decision in the courtroom that day went against him, from who could represent Hicks to whether Maj. Michael “Dan” Mori, his sole remaining defense counsel, got the time Maj. Mori said he needed to file motions and prepare Hicks’ defense.

Just after 7 p.m. last night, we were told that the commission would reconvene at 8 p.m., and we went back to the commissions room and watched Maj. Mori offer a guilty plea on behalf of his client.

Chief Prosecutor Col. Davis was more willing to speculate about what a plea deal might include than the defense. He said at last night’s press conference (I’m paraphrasing) that if he were a betting man, the odds were that Hicks could be in Australia by the end of the year. We’re unlikely to know whether that’s true until the end of the week, but perhaps faced with a choice between the process he saw today and the possibility of a return to Australia, even for continuing imprisonment, maybe David Hicks decided to take the gamble.

Things may quiet down over the next day or so while both sides work out the plea details. I’ll post more as events develop.