The often troubled system of war crimes trials at the U.S. military prison at Guantanamo Bay, Cuba, faced another setback Wednesday when its first conviction was nullified by a special military appeals court. The Pentagon said it would not challenge the ruling in a further appeal.
A three-judge panel of the U.S. Court of Military Commission Review — a military tribunal with authority to review convictions by the trial courts at Guantanamo — voided the 2007 conviction of an Australian, David Hicks, who had pleaded guilty to aiding terrorism. Hicks was the first Guantanamo detainee charged with a war crime, and his ‘ guilty plea was the first conviction for the commission system.
Only six others have been convicted in the 14 years the system has been in existence, and the verdicts against two others besides Hicks’ have been set aside. The main event — the commission trial of five foreign nationals on charges of planning the 9/11 terrorist attacks on the U.S. — has been put off repeatedly by legal woes and missteps.
Under a plea deal with military prosecutors, Hicks gave up his right to appeal the conviction. But the review court found that the waiver was not formally filed, as commission rules required, so it was not a valid forfeiture of his right to appeal.
Moving on to the conviction itself, the appeals panel said a civilian appeals court, the U.S. Court of Appeals for the District of Columbia Circuit (which is superior to the military commission appeals court), had ruled that the war crime charge of providing material support to terrorism could not be applied to individuals whose actions occurred before that crime was created by Congress in 2006. Hicks’ activities in Afghanistan and Pakistan — including some combat activity with Al Qaeda forces — occurred in 2001, according to the charges against him.
In return for his guilty plea, Hicks was sentenced to only nine months in a military prison. After finishing that sentence, he was sent home to Australia. After regaining his freedom there, he sought to undo his conviction by filing an appeal with the military appeals court in Washington.
The government, in a still-classified brief filed in January (recently released in a public form by the investigative news organization ProPublica), urged the appeals court not to review the case, arguing that Hicks should be held to the bargain he made in 2007 to get a reduced sentence. But, if the court concluded that Hicks could appeal and that it had the authority to consider his challenge, it should set aside his conviction based on the D.C. Circuit Court ruling in the case of another Guantanamo detainee, a Yemeni, Salim Ahmed Hamdan.