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Justice Guantánamo Style


David Hicks, the Australian man that has been held in Guantánamo for five years, (the last year or so in solitary confinement) agreed to plead guilty yesterday. There are a few things you should know about his plea. First, and most importantly, Hicks is pleading guilty to a crime that did not exist on the books until September of 2006. All of the original charges (the serious ones) were dropped against Hicks because the military had no evidence against him. Mr. Hicks was confined at Guantánamo until a new law could be passed that he could then be charged with. Never mind the fact that our constitution prohibits ex post facto (retroactive) laws, I mean that is why we are holding him at Guantánamo right?

The other thing you should know is what was clear to anyone paying attention: there was never going to be a hearing. The most recent evidence of that was when Hicks stepped into his arraignment yesterday and the first thing that happened was that two of his three attorneys were removed from representing him. Hicks' civilian attorney was removed because he refused to sign a statement agreeing to abide by military rules that had not yet been drafted and another attorney was removed because she supposedly did not have the correct credentials for the commission. That left Hicks with only one attorney, his military attorney, Dan Mori. Although Mori has been doing an exemplary job for Hicks, there was a little cloud hanging over Mori: the prosecuting attorney has suggested that Mori should be brought up on charges of misconduct for his zealous defense of Hicks. Mori was still trying to figure out how that threat by the prosecuting attorney would affect his representation of Hicks. Mori sought a short continuance to get legal counsel on this issue but that request was denied.

So yesterday, after two of his three attorneys were removed from representing him and the prosecuting attorney was attempting to intimidate the third, Hicks asked the military judge for additional counsel to help level the playing field. That request was denied... leveling the playing field is not what the military had in mind. The writing was clear on the glistening red, white and blue walls of the commission hearing room and David Hicks did the only thing that could possibly make sense in this abhorrent proceeding. He pled guilty to something that was not even against the law when he was arrested. Hicks' only hope is that he will be sent to Australia to serve his sentence and that perhaps, in time, a court in Australia will agree that pleading guilty to a crime that did not exist when he was arrested should be considered a nullity. Only problem is, Australia does not have a constitutional prohibition against ex post facto laws... I wonder if that is how the phrase "kangaroo court' first came to be?