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March 30, 2007

David Hicks Trial

Yesterday, MarkinIrvine sent the editorial staff this post from David Glazier, a guest poster at Balkinization:

Australian David Hicks' guilty plea to providing material support to terrorism at Guantanamo Monday should ultimately prove to be a brilliant defense maneuver. The Administration will seek to portray it as a victory for the military commissions, but in the longer run it should produce even greater pressures, both at home and abroad, to terminate these tribunals entirely. Although the confused proceedings lasted only a few hours, that was enough to establish that changes mandated by the Military Commission Act of 2006 (MCA) are insufficient to produce the "full and fair" trials promised by the President when launching this process a half-decade ago.

First, and most importantly, the crime Hicks pleaded to, providing material support to terrorism, is a felony triable in regular federal courts, but not a law of war violation military commissions can lawfully try. The inclusion of this offense in the MCA could allow future commissions exercising hybrid jurisdiction over law of war and statutory offenses to try acts committed after that law was enacted. But retroactive jurisdiction is only permissible over acts clearly violating international law at the time they were committed. Jurisdiction over Hicks, whose conduct dates back to 2001, would be unlawfully ex post facto. The Government bears the burden of proving that this offense violates the law of war, for which I have found no precedent in five years of academic research into military justice and the law of war. If the commission lacks jurisdiction over the charge, any court reviewing the decision per se, or Hicks' subsequent incarceration, should be obligated to set the conviction aside or order his release from custody.

The brilliance of Hicks' plea is that rather than spending months of additional Guantanamo incarceration contesting this point before a tribunal biased against him (more on this below), he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law. The MCA gives Hicks an appeal of right (following convening authority review) first to the Court of Military Commission Review, and then to the Court of Appeals for the D.C. Circuit. Should he lose before these bodies, he can petition for a writ of certiorari from the U.S. Supreme Court. Although the MCA purports to foreclose habeas review, the Supreme Court has long entertained such collateral challenges to military commissions, from the Civil War case ex parte Milligan through last summer's Hamdan decision. So it is far from certain that the MCA's jurisdiction stripping will be upheld, potentially creating additional prospects for federal collateral review in addition to the direct appeals. There is clear precedent for the federal courts to overturn a military conviction for lack of jurisdiction even following a guilty plea.

While the editorial staff has ne'er been loathe to tackle weighty legal matters well over her pay grade, she immediately recognized the vast unwisdom of diving into snark-infested waters without a clue bat. She therefore sought out the assistance of Army Lawyer, who ably responds in a post amusingly titled Law Professors Gone Wild.

For those unfamiliar with the sad case of Mr. Hicks, you may feast your eyeballs upon his exploits in this very sympathetic account. Not to put too fine a point on matters, Mr. Hicks was seized with a fervent desire to leave his home and family in Australia and spread the Gospel According to Osama bin Laden to the rest of the world at the point of a Kalishnikov via various paramilitary organizations.

This has endeared him to Human Rights groups the world over, who are falling all over themselves in their eagerness to take up The Cause as Mr. Hicks' attorneys continue to argue facts not in evidence via the media. The most prominent of these is the allegation that Mr. Hicks has been brutally tortured while in captivity. Mind you, the possibility that a man who left home with the express and admitted intent to murder innocent civilians, a man who openly admits wanting to murder Jews for no other reason than his hatred for a religious minority who were almost exterminated only half a century ago might justifiably be viewed with some minor skepticism does not seem to have penetrated their less than coherent world view. But this is hardly surprising considering the fact that they are not only ardently defending a man who contradicts everything they purport to believe in, but one who would gladly slaughter them all if set free.

At any rate, Hicks first joined the Kosovo Liberation Army in Albania, fighting with (you guessed it!) the Serbs. What a prince. This guy is all about tolerance, but again, the Left just loves him. Then he coverted to Islam (got confusion?) and moved to Pakistan, where he joined the Lashkar-e-Toiba, a SouthEast Asian militant terrorist group which seeks to establish Islamic rule in India and eventually, the world. He attended several terrorist training camps, learning assassination, kidnapping, guerilla warfare, and weapons techniques and wrote home to his parents that he had met Osama bin Laden.

Without attempting to get into various ridiculously hairsplitting arguments posed by various legal experts, certain things seem clear from a purely common sense perspective. And one would hope that at the end of the day, common sense would be what drives the law, though perhaps that is an idle thought:

1. Mr. Hicks appears to have left his native land looking for a fight. He found one. The "ex post facto" argument is based on the ordinarily reasonable premise that it is inherently unfair to punish a party today for engaging in an activity which was not illegal when he committed it, this on the theory that no reasonable individual would have been able to foresee the consequences, and thus comply, with a law he did not know existed at the time of the offense.

Let's examine that premise for a second. On what planet, in what bizarre alternate universe, would any reasonable individual believe there is no penalty for planning the murder of innocent civilians?

In what world would any reasonable person (disingenuous lawyers aside) not know that the murder of noncombatants has always been against the laws of war?

In what universe would anyone who has read a history book not know that civilians (industrialists anyone?) were tried for war crimes at Nurnburg? We recall learning this in high school.

2. Various parties have engaged in quite a bit of blather about whether Hicks is subject to U.S. law.

Nonsense. When you take up arms against a country, you are going to have to face the consequences, one of which being that they are going to take umbrage. They certainly are going to assert the right to try you under their own laws, not under your laws. At any rate, the entire concept of international law has been and will always be nothing more than a farce for one very simple reason: law without enforcement quickly becomes meaningless, and in a world in which no nation is willing to cede sovereignty to one international entity, there is no one body that can enforce "international law".

The closest thing is the United States of America, like it or not, because we happen to be just about the only nation left on earth still willing to put our lives behind what we believe in. And that is an extremely sad statement.

Laws only have force and meaning when they are put into action: the power to speak the law means nothing unless and until someone is willing to step up to the plate and ensure that judgments are carried out. Unfortunately for the reality based community, all too often that entails nasty things like the risk that Bad Things will Happen to Good People like my son and husband, whom they secretly believe themselves superior to for their wrong/bad insistence on opposing brute force with... err...brute force but howl for like banshees the moment anything scary happens. The up side to all of this, however, is that it allows for endless schmaltzy New York Times Op-Eds wondering why our brave, murdering troops (those ingrates!) can't see that Bill Keller only released those classified pics showing how to defeat their body armor because he supports them, and anyway, isn't that what they're supposed to be fighting for?

070328_Exp_Roo.jpgIf David Hicks is released to Australia, maybe we'll get lucky.

Maybe he won't decide to take out his anger on the Jews this time, or on innocent civilians working in embassies. Maybe he'll go back to skinning hapless Kangaroos. And no doubt, just as with so many practices they find unbearable until they become convenient tools with which to beat the BusHitler about the head and shoulders, offing 'roos will suddenly become hunky dory too. We hear they're frightfully easy to kill:

Hunters must inspect the pouches of female kangaroos for young: If they find a joey, the code recommends "decapitation with a sharp instrument"; larger ones get a "heavy blow to destroy the brain."

Probably durned good eatin' too.

Posted by Cassandra at March 30, 2007 05:06 AM

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"Probably durned good eatin' too"

My epicurean neighbor informs me that cannibals refer to human flesh as "long pig", because the taste of pork and of human flesh is very similar. Maybe Hicks should be sent to New Guinea, and he can let us know ... that is, if he doesn't become "long pig" himself.

Posted by: Mark In Irvine at March 30, 2007 11:30 AM

Ironic that pleading guilty spoils the whole thing, eh?

Posted by: FPA at March 30, 2007 12:02 PM

Only for the kangaroos...

Posted by: Cassandra at March 30, 2007 12:15 PM

"Ironic that pleading guilty spoils the whole thing, eh?"

Very ironic. The other day, we (me, myself and I) reluctantly predicted that KSM and Padilla also walk, because of due process problems with the way their incarceration and prosecution have been are being handled.

Posted by: Mark In Irvine at March 30, 2007 01:45 PM

Time will tell. I'm not particularly worried about it. I have never felt a need to control the entire world. You do the best you can and then you let the chips fall where they will. There are people who would have screamed "due process" no matter what because they never admitted we even had a right to detain prisoners of war Mark.

That is the salient fact that gets lost in all of this - it's a moving goalpost. And say that not one of these people, in reality, had been tortured. Just grant me that.

They could still say they had. And it would not matter in reality that they had not. The allegation would be out there and would be just as damaging in the eyes of the world because there are plenty of people ready to believe it on no evidence, just as there are plenty of people who believe David Hicks has been tortured today, though they have seen not one iota of actual evidence to prove this charge.

And neither you nor I know the truth of the matter, do we?

Interesting point, isn't it? Yet an amazing number of people would rather believe a man who is an admitted wannabe terrorist than the people who are trying to keep terrorists like him from killing us.

Posted by: Cassandra at March 30, 2007 02:05 PM

[ital]"There are people who would have screamed "due process" no matter what because they never admitted we even had a right to detain prisoners of war Mark"[/ital]

anyone in particular you have in mind, Cassie! [ha ha ha]

[ital]"And say that not one of these people, in reality, had been tortured"[/ital]

I think the definition of "torture" has also been shifting in the last 4 years ... it depends whom one asks ....

[ital]"And neither you nor I know the truth of the matter, do we?"[/ital]

True, true.

[ital]"I'm not particularly worried about it."[/ital]

I'm more worried about the kids at the moment, too.

Posted by: Mark In Irvine at March 30, 2007 02:18 PM

[i]"There are people who would have screamed "due process" no matter what because they never admitted we even had a right to detain prisoners of war Mark"[/i]

anyone in particular you have in mind, Cassie! [ha ha ha]

[i]"And say that not one of these people, in reality, had been tortured"[/i]

I think the definition of "torture" has also been shifting in the last 4 years ... it depends whom one asks ....

[i]"And neither you nor I know the truth of the matter, do we?"[/i]

True, true.

[i]"I'm not particularly worried about it."[/i]

I'm more worried about the kids at the moment, too.

Posted by: Mark In Irvine at March 30, 2007 02:21 PM

I just don't have a clue how to write HTML tags.

Posted by: Mark In Irvine at March 30, 2007 02:21 PM

Padilla is a small but potentially dangerous little fish, who can do little harm on his own, if set free. He will, however, be closely watched whenever he gets out.

Khalid Sheik Mohammed is a land shark, and much more dangerous. He will be a very old man before he ever sees the light of day again, outside of a prison, if ever.

Just my small prediction.

Posted by: Don Brouhaha at March 30, 2007 02:34 PM

Hopefully these 2 guys are being prosecuted so that they can't successfully challenge the results of their trials. I'm all for giving them due process, but we have to do it properly. I've won cases I "shouldn't" have won, because the other guy didn't know what he was doing procedurally, and I, being the vicious attorney that I am, made the most of the opportunity he gave me.

Posted by: Mark In Irvine at March 30, 2007 02:54 PM

David Hicks received an effective sentence of nine months today (he received credit for time served) and will be transferred to Australian custody.

Posted by: Mark In Irvine at March 31, 2007 03:55 AM

That was my intuitive feel for about what he was going to get.

And this is a guy who, not once, but twice went out of his way to do what he did. Not by any means an opportunistic criminal, but someone who is only not a 9/11 guy because he got caught before he could go through with anything. He actually had to leave his own country. Though I kind of get the sense he may have been inept. All that training and he was never deployed in the field? And he was rejected by the Aussie military.

Posted by: Cassandra at March 31, 2007 08:00 AM

On a side note, this STILL freaks me out-- my dad's name is David Hicks. >.

Posted by: Sailorette/Foxfier at April 1, 2007 12:48 AM

One wishes occasionally that Bush would simply issue an order as Commander-in-Chief that prisoners need no longer be taken.... and there's a stack of pardons waiting in the event that someone protests.

Posted by: SDN at April 1, 2007 09:42 PM

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