Tribunals of the absurd

BEN WIZNER is an attorney with the American Civil Liberties Union.

WITH THE guilty plea and sentencing of Australian David Hicks before a military commission at Guantanamo Bay last week, the United States achieved something it had not attempted since Nuremberg: the conviction of a foreign citizen in a military tribunal for violation of the laws of war.

As in Nuremberg, it was not just the detainee on trial but the military commission system itself. The legitimacy of the enterprise hinges on whether the U.S. demonstrates to the world that it can provide impartial justice to those it accuses of war crimes.

I traveled to Guantanamo to observe the Hicks proceedings, and to say that they lacked the dignity and gravitas of Nuremberg is to engage in colossal understatement. The military commissions have been a profoundly unserious legal exercise from the start. The prison at Guantanamo was fashioned as an island outside the reach of U.S. law, and the commissions were devised to provide an illusion of legal process.


If that sounds extreme, consider the Hicks case. The defendant traveled to Pakistan and Afghanistan, joined with extremists and was captured in December 2001. Defense Secretary Donald H. Rumsfeld later said he was among the world’s most dangerous terrorists.

Hicks was first charged by a military tribunal in 2004 -- accused of conspiring to commit acts of terrorism, attempted murder and aiding the enemy -- but the executive order creating those tribunals was declared illegal by the Supreme Court last year. So Congress passed the Military Commissions Act, and Hicks was charged again, this time solely with providing “material support” to a designated terrorist organization. He struck a plea bargain.

Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months -- a sentence more in keeping with a misdemeanor than with a grave terrorist offense.

This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released. In Guantanamo, the accused must plead guilty to be released -- because even if he is acquitted, he remains an “enemy combatant” subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.

And so, the lone Guantanamo detainee who has admitted guilt will be in Australia within 60 days and free before the end of the year. Meanwhile, about 385 others who have not been accused of a crime may remain in detention until the cessation of hostilities in the “war on terror” -- a distant abstraction, not an actual event.

In the plea deal, Hicks was required to affirm that he had not been “illegally treated” while in U.S. custody, but those words are meaningless. Hicks earlier alleged that he was brutally abused when he was turned over to U.S. forces in Afghanistan. But in the Bush administration’s view, that treatment was not “illegal” at the time unless, in the words of the notorious Justice Department memo, it inflicted pain equivalent to “serious physical injury, such as organ failure, impairment of bodily function or death.” Thus, in denying that he had been “illegally treated,” Hicks in no way denied that he had been abused.


Moreover, in a highly unusual provision, the agreement requires that Hicks not speak to the media for a year. Gag rules are not imposed to prevent people from telling lies; they are imposed to prevent people from telling the truth -- in this case, how Hicks was treated after his capture and during his detainment.

What are we to make of this? How did the very first case brought before a military commission -- a system we were told was necessary because of the danger and impracticality of prosecuting arch-terrorists in U.S. courts -- result in a sentence of only nine months?

If Hicks is even remotely as menacing as the United States once asserted, then the government is grossly negligent to permit his release on these terms. But no one believes that to be the case. Instead, it is widely understood that the government made extravagant claims that simply could not withstand scrutiny. No wonder the administration has fought so vigorously to deprive Guantanamo detainees of the bedrock right of habeas corpus -- the right to challenge unlawful detention in court.

This week, the Supreme Court declined to review a challenge to the Military Commissions Act, which stripped federal courts of jurisdiction to hear habeas corpus challenges filed by “enemy combatants.” So justice for the detainees at Guantanamo will be delayed for at least one more year. Meanwhile, David Hicks -- once deemed among the worst of the worst -- will be home and free, an unwitting symbol of our shameful abandonment of the rule of law.