David Hicks’ trial was a political fix by two governments

Tim McCormack

NOW that David Hicks is back in Australia to serve out the rest of his sentence at Yatala, it is opportune to reflect on the implications of his “trial” for the future of the US military commission process. It is not a pretty picture.

One of Major Michael Mori’s recurrent criticisms of the proposed US military commissions (mark I and II) was the complete lack of judicial independence from the executive arm of the US Government. He repeatedly used a cricketing analogy, likening the trial process to the absurd scenario of dispensing with the independent umpire and allowing the bowlers themselves to determine whether or not to declare the batsmen out lbw.

Although the outcome for David Hicks is unquestionably more favourable than he could have expected, the manner in which that outcome was achieved constituted an appalling indictment of the military commission process. Any antecedent doubts about Mori’s characterisation of the inherently political character of the process were obliterated in the course of the proceedings in Guantanamo Bay.

Throughout the week of the “trial”, we were repeatedly assured by US military authorities that we were witnessing a “fair and transparent process”. The most transparent reality for me was the utter opacity of virtually all issues of substance — resolved as they were outside the courtroom and beyond public scrutiny (or else avoided altogether by the convenience of the guilty plea). The pre-trial agreement was negotiated in Washington before the trial even began and those negotiations excluded both the sitting judge and the prosecution.

Despite that fact, the trial began as if there were no such agreement and, even after the existence of the agreement was revealed, the trial proceeded as if the agreement did not exist.

The single most glaring example of procedural irrelevance involved the jury of 10 senior officers drawn from the US Army, Navy, Air Force and Marines and flown to Guantanamo Bay on the aircraft of the Defence Secretary. The officers, of the rank of colonel or equivalent, received instructions from the judge that they could award a maximum sentence of seven years for the charge of providing material support to a terrorist organisation. The jury listened to impassioned pleas from the prosecutor for the maximum sentence and from the defence for leniency.

They retired for two hours and returned to deliver the maximum sentence. Only after their role had concluded and they were excused from the court did they discover that their determination was utterly irrelevant to the actual sentence Hicks will serve. What must they have thought when they discovered that their efforts were superfluous?

So much of what transpired in the courtroom seemed to constitute an elaborate charade — an absurd pretence of fairness and transparency in the face of a blatant political fix. At the final news conference the prosecutor, Colonel Mo Davis, could only explain the incongruity of his repeated assertions that Hicks deserved a 20-year sentence but only got nine months by conceding that “I did not negotiate this deal” and it was done by Mori “over my head” in Washington.

This transparent lack of transparency exposed two governments desperate to get the case resolved and off the agenda and prepared to accept an extraordinarily short term of imprisonment for one of the “worst of the worst” of the world’s terrorists.

One non-government organisation representative observing the trial contrasted to the media at the end of the process the party line that “David Hicks is a serious threat to our way of life and when the facts finally come out folks will understand why he is such a dangerous person” with the reality that he received a sentence equivalent to a drunk-driver who hasn’t hurt anyone.

The pre-trial agreement meant that the US Government could avoid any scrutiny of the actual evidence it had against Hicks and the manner in which it was obtained. The agreement also obviated the need for the judge to deal with the potentially serious defence motion on prosecutorial misconduct by Davis in the public suggestions that Mori may have violated the US Code of Military Justice by arguing against the fairness of the commission process.

But the conveniences of a pre-trial agreement could not obscure the fact that the content of the agreement and the way it was negotiated confirmed the inherently political character of the military commission process and the potentially irreparable damage to the rule of law in persisting with it.

The Bush Administration is intending to spend $US150 million ($A181 million) to construct a new, state-of-the-art courtroom facility at Guantanamo Bay exclusively for future trials by military commissions.

The Hicks case quite possibly provided the strongest imaginable ammunition for those in the US who want to terminate the military commission process immediately.

If the building project goes ahead, the edifice will stand as a monument to a perversion of the long and admirable tradition in the US of commitment to justice and the rule of law.

So much of what transpired in the courtroom seemed to constitute an elaborate charade — an absurd pretence of fairness and transparency in the face of a blatant political fix. At the final news conference the prosecutor, Colonel Mo Davis, could only explain the incongruity of his repeated assertions that Hicks deserved a 20-year sentence but only got nine months by conceding that “I did not negotiate this deal” and it was done by Mori “over my head” in Washington.

This transparent lack of transparency exposed two governments desperate to get the case resolved and off the agenda and prepared to accept an extraordinarily short term of imprisonment for one of the “worst of the worst” of the world’s terrorists.

One non-government organisation representative observing the trial contrasted to the media at the end of the process the party line that “David Hicks is a serious threat to our way of life and when the facts finally come out folks will understand why he is such a dangerous person” with the reality that he received a sentence equivalent to a drunk-driver who hasn’t hurt anyone.

The pre-trial agreement meant that the US Government could avoid any scrutiny of the actual evidence it had against Hicks and the manner in which it was obtained. The agreement also obviated the need for the judge to deal with the potentially serious defence motion on prosecutorial misconduct by Davis in the public suggestions that Mori may have violated the US Code of Military Justice by arguing against the fairness of the commission process.

But the conveniences of a pre-trial agreement could not obscure the fact that the content of the agreement and the way it was negotiated confirmed the inherently political character of the military commission process and the potentially irreparable damage to the rule of law in persisting with it.

The Bush Administration is intending to spend $US150 million ($A181 million) to construct a new, state-of-the-art courtroom facility at Guantanamo Bay exclusively for future trials by military commissions.

The Hicks case quite possibly provided the strongest imaginable ammunition for those in the US who want to terminate the military commission process immediately.

If the building project goes ahead, the edifice will stand as a monument to a perversion of the long and admirable tradition in the US of commitment to justice and the rule of law.

Tim McCormack is the Australian Red Cross professor of international humanitarian law at the Melbourne Law School. He attended the proceedings against David Hicks in Cuba in March as an adviser to the defence team on law-of-war issues.

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