While Hicks' supporters have deplored the decision by Australia's Commonwealth Director of Public Prosecutions, the court proceedings scheduled to begin next month could end up being a blessing for the former Guantanamo detainee and his defense team in that it may afford them an opportunity to show how the Bush administration and the government of former Prime Minister John Howard politicized his case, a fact much of the Australian media continues to ignore.
Hicks, 35, who gave his first interview to Truthout in February, pleaded guilty in 2007 to providing material support for terrorism. Hicks was the first detainee to be convicted before a military commission following the passage of the Military Commissions Act by Congress the previous year. The legislation was crafted in response to a Supreme Court decision that struck down the original military tribunal system set up by George W. Bush after 9/11, which the High Court said was illegal under the Geneva Conventions and US law.
Col. Morris Davis, the former chief prosecutor of military commissions at Guantanamo, recalled during a recent interview at his office in Washington, DC, how he was pressured into indicting Hicks for war crimes not long after the Military Commissions Act was signed into law by Bush in October 2006. (Truthout will publish a lengthy story based on our interview with Davis, a vocal critic of the Obama administration's handling of Bush-era torture, in the weeks ahead.)
Davis said he believed that Hicks, who attended training camps in Afghanistan and was sold to US forces by the Northern Alliance for a $1,500 bounty in November 2001, should not have been prosecuted for war crimes. He described the former horse trainer as a "knucklehead ... a little guy with not a lot of education who wanted to be a big shot and went off on this adventure to Jihad."
"After years at Guantanamo, there was no possibility David Hicks would ever repeat that experience," Davis said.
When he was selected as chief prosecutor in September 2005, Davis said he made it clear to his superiors at the Pentagon that "the one case I did not want to start with was David Hicks."
"The first case is the one that will get lots of attention," Davis said. "Unfortunately, Hicks' case was already in the pipeline. It was a terrible case. We told the world these guys are the 'worst of the worst.' David Hicks was a knucklehead. He was just a foot solider, not a war criminal. But when Congress passed the Military Commissions Act they authorized prosecuting material support, which is what Hicks was charged with, as a war crime. You could prosecute everyone at Guantanamo under that theory."
Despite Davis' concerns, the Bush administration was determined to charge Hicks, even if the evidence against him was thin, to help out an ally in the war on terror, US government documents obtained by Truthout show.
Davis also believes that's what happened. He said he arrived at that decision not long after he received an urgent phone call in January 2007 from Pentagon General Counsel William "Jim" Haynes who asked him, "How quickly can you charge David Hicks?"
Davis said that was the first and only time Haynes had ever called him about a specific case and he found it to be "odd." The phone call was made one day after US officials met with the ambassador to Australia, where Hicks' case and its impact on Howard's re-election campaign was discussed, according to a secret State Department document obtained by Truthout.
Davis informed Haynes, who Bush had twice nominated to serve on the Fourth Circuit Court of Appeals, that he could not initiate charges against Hicks "even if he wanted to" because the "Manual for Military Commissions" had not been prepared yet by Secretary of Defense Robert Gates and a "convening authority" who is supposed to oversee the process had not been appointed.
"The manual implements the law, in this case the Military Commissions Act of 2006," Davis said. "It fills in the details the statute doesn't. It fills in the elements of crimes, lays out the elements of crimes. When Haynes called me I said I couldn't charge Hicks because I did not know what the elements of the offense are. I said, 'wait for the manual to be written.'"
Haynes, who did not return emails or phone calls for comment, told Davis the manual was being "worked on" and the Pentagon was reviewing candidates to serve as convening authority. Haynes still wanted to know how quickly Hicks could be charged with war crimes after the military commission's manual was signed by Gates.
"I told Haynes two weeks," Davis said. "He said 'two weeks! Two weeks is too long.' Haynes then told me to 'be ready' and asked if I could charge other [Guantanamo detainees] in addition to Hicks. He didn't say why."
Davis said that while he was not privy to the political discussions taking place behind the scenes with regard to Hicks and the military commissions in general he suspects the reason Haynes asked him to also charge other detainees was not to leave anyone with the impression that the administration was "singularly focused" on the Australian detainee.
"They didn't want [Hicks' case] to stick out like a sore thumb and they wanted to bury it with others," Davis said. Legal Adviser Brig. Gen. Thomas Hemingway, Office of Military Commissions, "said [Prime Minister] Howard was getting beat about the head and shoulders about the Hicks case."
At a press briefing on January 18, 2007, Dan Dell'Orto, the Pentagon's principal Deputy general counsel and General Hemingway announced that a report was being submitted to Congress by Gates "that contains the military commission procedures" and that a longtime confidante of Vice President Dick Cheney, Judge Susan Crawford, former chief judge of the United States Court of Appeals of the Armed Forces, was selected to be the convening authority.
On February 24, 2007, Cheney met with Howard in Sydney and told the vice president, "there must be a trial 'with no further delay' for David Hicks who was beginning his sixth year at the U.S. naval prison at Guantanamo Bay," according to the book "Angler," by Washington Post reporter Barton Gellman.
Hicks' was becoming a liability for Howard, who was under pressure by the public and some lawmakers to return Hicks to Australia. Howard told Cheney that Hicks had to be charged with something because there weren't any laws in Australia for which he could be prosecuted if the US government simply repatriated him.
According to another secret document obtained by Truthout, after Cheney returned to the US from Sydney on February 25, 2007, he tasked his legal adviser, David Addington, with working with Haynes at the Pentagon and Crawford, who had just been appointed convening authority, to quickly hammer out a deal for Hicks without Davis' knowledge.
Less than a week after Cheney returned from Sydney, Davis' office indicted Hicks. He was charged with providing material support for terrorism and attempted murder. Hicks was charged along with Salim Hamdan, a Yemeni detainee who was Osama bin Laden's chauffeur and bodyguard and whose case, Hamdan v. Rumsfeld, resulted in the June 2006 landmark Supreme Court decision striking down the military tribunal system Bush set up after 9/11. A third detainee was also charged alongside Hicks: Canadian Omar Khadr, who was a teenager when he was captured in Afghanistan and charged with killing a US medic after he tossed a grenade at him.
During a trip to Guantanamo in early March 2007 for Hicks' arraignment, Davis said he found out the Defense Department had entered into a secret plea deal with Hicks and his defense team that was approved by Crawford.
"I had very few conversations with Susan Crawford," Davis said. "I wasn't a party to the plea deal. When I spoke out about it [Crawford] said I was undermining her role and she can't have the chief prosecutor questioning her judgment."
The deal, referred to as Alford plea, called for Hicks to sign an agreement accepting the single charge of providing material support, which was not deemed a war crime prior to the passage of the Military Commissions Act of 2006. In an Alford plea, the accused does not admit to the act for which he is charged, but admits that the prosecution could likely prove it. The government dropped the attempted murder charge against Hicks. Under the terms of the deal, Hicks would serve nine months in prison in Australia and would be prohibited from speaking to the media for a year.
Davis was outraged. He said his conversations revolving around Hicks' punishment and continued incarceration "were measured in years not months."
In other words, Hicks could still be in Guantanamo today if the Bush administration declined to help Howard as he campaigned for another term in office. Still, as Hicks told Truthout in a previous interview, he believed he had no choice. Accepting the guilty plea was his only way out of Guantanamo.
Davis said he strongly believes Haynes and Addington "worked closely" on the Hicks case and that there is "no doubt in my mind this was an accommodation to help John Howard by making the David Hicks case go away."
"I am sure this wasn't Jim Haynes waking up one morning and saying 'how can I help David Hicks,'" Davis said. "Reasonable people could look at this and see this was a favor for an ally. I don't think the facts are in dispute: to make this case go away it had to get done quickly. If there was an arraignment, then a trial would have likely been set for the fall [of 2007], about two months before Howard would have faced the voters."
Davis said the political interference in other Guantanamo detainee cases continued after Hicks' guilty plea. He resigned as chief prosecutor in October 2007 after he was told he would have to report directly to Haynes. He is now executive director and counsel for the Crimes of War Education Project.
Hicks, meanwhile, has long maintained that he signed the plea deal because it was his only way out of Guantanamo.
In fact, in April 2004, Hicks wrote a letter to his father, Terry, saying that US government officials were pressuring him into pleading guilty to a wide range of war crimes charges and he warned that "if I make a deal it will be against my will" because "I just couldn't handle it any longer."
"I'm disappointed in our government. I'm an Australian citizen," Hicks wrote. "If I've committed a crime I can be man enough to accept the consequences but I shouldn't have to admit to things I haven't done or listen to people falsely accuse me. We can't let them get away with it."
Hicks said he feared that if he didn't comply and accept the guilty plea he would be sent to "camp 5," a "very bad place with complete isolation."
"They know that this is my worst nightmare," Hicks wrote about the transfer threat, according to the letter, which Truthout obtained from a former guard who was assigned to Hicks' block at the prison facility. "If I end up in there I will probably lose my sanity or crack. That's what they want ... Being in my current situation the deal is tempting but only in the last week I've decided I'm going to call their bluff and say that I'm gonna fight them. Only know [sic] do I feel like being strong and standing up for myself ... I'm sick of writing you letters saying how good it is here. I've always done that because I'm afraid of what the authority's [sic] may do to me. If I told you the reality they wouldn't give you the information. I want to be able to make as much noise as possible. To let people know of what's really happening here."
Hicks' letter, which the former Guantanamo guard was supposed to mail to Hicks' father but never did, also suggests Hicks was tortured psychologically and physically, despite the fact that he was forced to sign a document as part of his plea deal stating he was never mistreated while in custody of the United States.
"Before I start I want you to know that the negative things I am going to say has nothing to do with the MP's that are watching me," Hicks wrote. "Some of them are marvelous people who have taken risks to help improve my day to day living. It's because of such people that I have kept my sanity and still have some strength left. In the early days before I made it to Cuba I received some harsh treatment in transportation including mild beatings (about 4). One lasted for 10 hours. I have always cooperated with interrogators. For two years they had control of my life in the camps. If you talk and just agree with what their saying they give you real food, books and other special privileges. If not they can make your life hell. I'm angry these days at myself for being so weak during these last two years. But I've always been so desperate to get out and to try to live the best I can while I'm here ..."
George Williams, one of Australia's top constitutional lawyers, said what Hicks wrote about in his letter as well as details Davis revealed about what took place behind the scenes in the lead up to Hicks' guilty plea, could open up a "can of worms" for the Australian government and lead to questions about "what happened [to Hicks] at Guantanamo Bay and whether that ought to be recognised and given legal weight by other democracies."
For Hicks, perhaps such a public airing would provide him with a sense of justice.
(This story was originally published in Truthout on Monday 26 July 2011 under the title 'Former Guantanamo Chief Prosecutor: David Hicks' War Crimes Charge Was a "Favor" for Australia' and has been republished with full permission.)