Guantánamo's military tribunals were not created to try crimes, but to hide them. This system was set up to ensure that the U.S. government's torture program would never face trial, and so far it has succeeded. For the past decade, Guantánamo has been a parallel universe where information tainted by torture may be admitted as evidence, where the centuries-old attorney-client privilege is subject to arbitrary interference by military officials, and where people spend a decade or more waiting for a day in court.
David Hicks, an Australian citizen, was one of the first men brought to Guantánamo, where he was tortured and held for six years. In 1999, Hicks, then 23 years old, converted to Islam and left his homeland to wander the world. His travels took him to Afghanistan, where, shortly after 9/11, he was sold to the U.S. military by the Northern Alliance for a bounty and sent to Guantánamo. In 2002, with representation from the Center for Constitutional Rights and civil rights attorney Joseph Margulies, David Hicks filed one of the first habeas corpus petitions challenging the government's ability detain individuals at Guantánamo indefinitely without due process.
At Guantánamo, he was beaten regularly and kept chained to the floor. He suffered broken bones, sleep deprivation, and was injected with drugs against his will. It was under these circumstances that Hicks pleaded guilty in 2007 to a single count of "material support" for terrorism despite having never fired a weapon. Backroom deal-making between Vice President Dick Cheney and Australian Prime Minister John Howard led to Hicks finishing his sentence in Australia. Howard was facing mounting pressure to act on Hicks's behalf. His sentence was later suspended but he was given a year-long "gag" order to keep him from talking about his experience while Howard was on the campaign trail.
David Hicks was the first person to be charged in the initial iteration of the military tribunals, set up by the Bush administration. Since then, the executive branch has been hard at work maintaining a legal house of cards where it can narrow the scope of procedural protections for the accused, build prosecutions on coerced statements and hearsay, and severely limit judicial review of its actions. The commission system tried to build legitimacy by charging crimes the executive branch imagined existed under the international laws of war. It gravely miscalculated. Most of the charges asserted against defendants had never before been illegal under laws of war. This is how broad material support convictions like those of David Hicks first became a "war crime."
The Supreme Court has stepped in twice to stop these violations of the Geneva Conventions and the Uniform Code of Military Justice, and to check the president's assertion of power to erect his own system of justice. These landmark rulings should have marked the end of the tribunals, but they simply led to hollow congressional amendments to what continues to be a flawed and illegitimate process.
Over the past two years, the foundations of this system have been slowly eroding as real courts get to review the made-up war crimes the Bush administration created to confer a veneer of legitimacy to its dangerous experiment. Last year, the D.C. Circuit held in Hamdan v. United States that Salim Hamdan's conviction for material support was unlawful because it was not a war crime at the time of his alleged offense. A few months later, the D.C. Circuit vacated the conviction of another Guantánamo detainee in the case Al Bahlul v. United States, on the government's own admission that none of the charges in that case -- material support, conspiracy, and solicitation -- could be considered war crimes under the D.C. Circuit's decision in Hamdan II. Today, David Hicks is seeking to have his conviction before the Court of Military Commission Review overturned because it was based on a charge now recognized as impermissible.
Given that three other individuals have been convicted in the military commissions for "material support," more appeals are likely to be forthcoming. They ought to be the final nail in the coffin of the military commission system. Like Guantánamo itself, the military tribunals have been an affront to the rule of law and have enabled the U.S. government to evade accountability for torture unlawful detentions. President Obama should pull the plug on them. This would be one concrete step along the road of fulfilling his renewed -- and as yet unfulfilled -- promise earlier this year to close the prison.
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