The plea agreement that saw the release of "Aussie Taliban" David Hicks from detention at Guantánamo Bay, Cuba, has prompted harsh criticism - in the US as being too lenient, and in Australia as being a political tool in the upcoming elections.
Mr. Hicks's plea agreement includes a nine-month prison sentence. Additionally, Hicks agreed not to allege that he was subjected to illegal treatment while in US custody, and not to speak with the media for one year. The Washington Post reports that the plea was crafted without the knowledge of prosecutors in his trial at the US military facility. Hicks had been facing two counts of providing material support for terrorism. His was the first case to be heard by special war crimes tribunals set up under the Military Commissions Act of 2006.
The deal shows that the politically appointed [convening authority for military commissions] has the power to personally decide the fate of America's most notorious terrorism suspects.
Marine Maj. Michael "Dan" Mori, representing Hicks, took his plea negotiations to Susan J. Crawford, the top military commission official, rather than dealing with prosecutors who were seeking a lengthy penalty, according to both sides in the case. In what became a highly politicized situation involving the Australian government, Crawford allowed Hicks a short sentence in exchange for a year-long gag order, a guarantee that he will not allege illegal treatment at the hands of his U.S. captors, and a waiver of any right to appeal or sue.
The Los Angeles Times writes that even as the plea deal was being negotiated behind the scenes, Hicks was portrayed by the prosecution as a grave threat to the US.
The charge sheet detailing Hicks' alleged support for terrorist groups initially portrayed him as an accomplice of Al Qaeda kingpins. The prosecutor in his case, Marine Lt. Col. Kevin Chenail, continued through closing arguments Friday to cast the defendant as a danger to Western societies.
"Today in this courtroom we are on the front line of the war on terrorism, face to face with the enemy," Chenail said. He evoked Al Qaeda attacks against the U.S. destroyer Cole in Yemen and U.S. Embassy bombings in Kenya and Tanzania as examples of how Hicks' terrorist training could be called into service at any time.
If Hicks was such a menace to Western security, as the U.S. government has alleged since his arrest in December 2001, asked staff attorney Ben Wizner of the American Civil Liberties Union, "why was he given a sentence more appropriate for a drunk-driving offense?"
The Post adds that Col. Chenail said he was shocked by the shortness of the sentence. "I wasn't considering anything that didn't have two digits," he said.
The New York Times writes that while "a prosecutor who bargained a case with a potential life sentence down to an additional nine months of imprisonment" might be considered on the losing side, the chief military prosecutor, Col. Morris D. Davis of the Air Force, offered a different assessment.
It was not a loss for the prosecution, Colonel Davis said, but a victory for a much maligned system that he said had been unfairly criticized before it was given a chance to prove it could deliver justice.
"There's a notion that this is a rigged system," he said when asked if he was disappointed by the outcome. "I think this shows that's not true."
However, Maureen Byrnes of Human Rights First told the Los Angeles Times that the trial has "illustrated everything that's wrong with these military commissions.
"The plea deal in particular has the taint of coerced statements and secrecy. The deal effectively censors anything Mr. Hicks might allege about what he says he suffered and implausibly characterizes the last five years of his detention as justified under the laws of war."
"Add in the widespread perception that the plea deal was in part the result of intense political and diplomatic pressures, and the conclusion is inescapable that these military commissions don't deal justice, they deny it," Byrnes said.
A key focus of Ms. Byrnes' criticism is that the plea agreement prevents Hicks from claiming he was "illegally treated" while in US custody. The Los Angeles Times notes that, while attempting to obtain British citizenship and protection, Hicks had told a British court that he had been repeatedly beaten, sodomized, and forced into painful positions during interrogations.
In Australia, much of the criticism of the plea agreement has centered on the year-long gag order that mandates that Hicks must not talk to the media – either directly or through third parties – about his crimes or detention until March 2008. The duration of the gag order covers Australia's election season, during which Prime Minister John Howard – a long-time supporter of President Bush – will seek another term. He is facing a stiff challenge, and Hicks's imprisonment of more than five years at Guantánamo has been an issue for Mr. Howard's campaign.
The Australian national newspaper reports that both politicians and academics have questioned the motives for the gag order.
"I can accept the imposition of a no-profit clause. But not being able to speak to the media for a year? You've got to question what's going to be achieved by gagging him for that length of time," said Geoff Holland of the the University of Technology, Sydney, an expert on freedom of speech. "If it's something he could say that would compromise Australian security, then one would expect the gag would be ongoing."
Greens leader Bob Brown claimed the gag had been sought by the Howard Government. "It's a fix," Senator Brown said. "The message has gone very clearly from Canberra to Washington to Guantanamo Bay: 'Don't allow Hicks to be released until after the elections and certainly don't allow him to speak'.
"It's tawdry, it's despicable, it's a political fix overriding what should have been an Australian justice matter right from the outset."
However, a spokesman for Howard said that the gag order was "entirely a matter for the Americans," reports The Sydney Morning Herald, and that Howard later personally refuted the accusation of gagging Hicks for political purposes.
But Mr Howard said it was "ridiculous" to suggest the sentence had been framed with the election in mind. "We didn't impose the sentence, the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks's lawyers, and the suggestion ... that it's got something to do with the Australian election is absurd."
The Foreign Affairs Minister, Alexander Downer, said it was a coincidence that Hicks would be released and the gag order would expire soon after the federal election. The sentence was "a deal between the prosecution, the defence and the so-called Convening Authority. It is not that the Australian Government said to the defence, 'well, no, you should take a nine-month period until we are after the election' or anything like that."
The Advertiser of South Australia notes that Labor Party leader Kevin Rudd said that, if elected, a Labor government would honor the terms of Hicks's sentence.