As Human Rights Watch's DC-based US program advocacy director, I've spent nearly two years researching and monitoring the military commissions that were set up by the Bush administration to try the "worst of the worst" detainees held in Guantanamo Bay, Cuba. That is how and why--when much of the rest of America was sensibly on spring break--I ended up in Gitmo monitoring the first military commission proceedings authorized by Congress.
While some might think I got the short straw in the office pool, I actually volunteered to head south, thinking that it was time for me to actually see in action the military commission system I have been commenting on (here's a Q&A explaining the Military Commissions Act of 2006, and their recent history.
Last Monday night, observers were called into the courtroom at 8 PM to hear as Hicks's decision to plead guilty was revealed. I unpacked my bags, bought some laundry detergent, and waited out several days of speculation. On Friday, the guilty plea was formally entered, the panel members convened, the plea deal revealed, the sentence imposed.
The government once proposed military commissions as the best way to prosecute the masterminds of 9/11, and the prosecutor in Australian David Hicks's case made a valiant attempt at maintaining that fiction. He stood up, pointed at Mr. Hicks, and in a sentencing argument worthy of a fire and brimstone preacher called him an "enemy who wanted to kill Americans," "a threat", and an "extremist" who sought to destroy liberty and freedom. But then the plea deal was revealed: a mere nine months incarceration and a promise to transfer him home to Australia within two months time, in exchange for a series of conditions that mostly revealed the government's interest as protecting against the disclosure of his abuse while in detention.
The agreement includes a statement from Hicks that he has not been subjected to "illegal" treatment at any time while he was in US custody - a statement that the Department of Defense has broadcast in its press release on the case. But this is a concession that means little for a government that interpreted water boarding (mock drowning) as compliant with US and international law at the time of Mr. Hicks' arrest. And in a statement filed in a UK court, Mr. Hicks has previously alleged being beaten repeatedly, sodomized, and forced into painful stress positions while in US custody.
Included in the deal is also a one-year gag rule that prohibits Hick from discussing any element of his treatment or capture - a provision that serves the purpose of hiding the very abusive conduct the United States denies. And Hicks is barred from suing anyone in the US government regarding his detention or treatment, and cannot profit from the eventual sale of his story, but must instead turn over any proceeds to the Australian government.
This cover-up attempt has been a constant theme of late, with Khalid Sheikh Mohammad (KSM), Abd al-Rahim al Nashiri, and Majid Khan, three of the detainees moved to Guantanamo from secret CIA prison last September, as exhibits A, B, and C. The newly released transcripts of the Combatant Status Review Tribunals for both KSM and Nahiri were heavily redacted to cover up any details relating to their allegation of abuse. And the government is not even allowing Khan's civilian attorney to visit him - based on the surreal argument that Khan's treatment in CIA custody is "top-secret" information which cannot be revealed.
The prosecutor of Mr. Hicks described the "global war on terror" as a "figurative battle of ideologies," with liberty and freedom on one side and those attempting to destroy liberty and freedom on the other.
But it is hard to see how the government's concerted attempt at censorship and cover-up advances this cause - particularly when what the government is attempting to cover-up involves secret detentions, ""disappearances," and abuse.