But the Pentagon said late Friday that the charges had been dismissed. A brief statement cited rulings by an appeals court that material support is not a legitimate war crime under the law authorizing military commissions.
- Military Times, 10th Jan 2015
Subsequent to his commission proceedings, decisions by the D.C. Circuit Court of Appeals in separate commissions cases established that it was legal error to try the offense of providing material support for terrorism before a military commission. The decisions of the D.C. Circuit are binding on commissions cases and the convening authority’s action to disapprove the findings and sentence in Muhammed’s case is required in the interests of justice and under the rule of law.
- US Dept of Defense, Release No: NR-013-15, 9th Jan 2015
It is one thing to plead guilty to a crime. It is quite another thing to plead guilty to a crime which doesn't actually exist. It's even worse to serve time and then be tortured after being arrested without charge and later have charges made up on legislation made after the event, for a crime which does not exist.
Yet this is precisely what has happened with David Hicks.
Back in 2007 David Hicks pleaded guilty to the single charge of “providing material support for terrorism” and was sent back home to Australia. A full seven years later, the US Dept of Defence and the convening authority for military commissions has ruled that material support is not a legitimate war crime under the law.
The case of Noor Uthman Muhammed of Sudan provides a only a few short sentences but they are quite telling. Muhammed, a native of Sudan, pled guilty in February 2011 at a military commission to providing material support for terrorism and conspiracy to provide material support for terrorism.". It shouldn't take a casual observer like me to point out to governments that this is the same non-legitimate crime that Hicks was charged with. David Hicks for his efforts spent nine months in an Australian gaol, for that non-legitimate crime. Does anyone else see a problem here?
Apparantly not if you are a Daily Telegraph journalist.Let's think about comments made by professional dog-whistler Miranda Devine from an article in the Daily Telegraph on 13th December last year:
The opening two words are now technically incorrect aren't they? "Convicted terrorist"? Can you really be convicted for something which is not a legitimate war crime? Secondly, he wasn't actually charged as a "terrorist" but with providing material support for terrorism. I know that this is a matter of semantics but seemingly people like Miranda Devine as well as the then Prime Minister John Howard and Attorney-General Philip Ruddock have really problems with words like "illegitimate", "illegal" and even "error".
He could thank the Howard government for its successful lobbying to have him released early from Guantanamo Bay with a lenient sentence after he pleaded guilty to “providing material support to a terrorist organisation”.
Let me reiterate this. If material support is not a legitimate war crime under the law then how is any sentence "lenient"? This is different to being charged with a crime you did not commit. This is being charged with something that isn't actually a crime and then being made to suffer for it.
Hicks was sold to US Special Forces for US$1000 by the Northern Alliance in December of 2001 and was in Guantanamo Bay for three years before any initial charges were laid in 2004. I just don't understand how under any possible definition that can be called being "released early".
No doubt he was treated roughly when he was captured by US troops in Afghanistan in December, 2001. He was an “enemy combatant” in a war zone, who had been extensively trained in al-Qaeda camps.
Ooh. Nice work here. If you omit some words, you change the meaning entirely. Hicks on the charge sheet was charged as:
a person subject to trial by military commission as an alien unlawful enemy combatant
- pg9 USMC, US v Hicks, Continuation of (MC Form 458) Charges and Specifications, 2nd Feb 2007
Never mind the fact that the term "unlawful enemy combatant" didn't actually exist until the Military Commissions Act of 2006 was passed. There is even doubt as to whether he was even actually in a war zone. Some reports suggested that he was being held captive by the Northern Alliance in the back of a truck.
Say what you like about the reasons why David Hicks was actually in Afghanistan but the fact remains that in theory both the United States and Australia purport to have at least a façade of the rule of law. If you're making up legislation after the event and upon subsequent testing of that legislation finding that the courts in question have no legal right to try a particular case, then it's really difficult to continue to say truthfully that the rule of law is being upheld.
Now I know that it probably isn't likely that someone from the Daily Telegraph is likely to look up a list of D.C. Circuit Court of Appeals to find out what will be heard in a month's time and I also know that this is an opinion piece and so probably shouldn't be held up to the same level of scrutiny as a news item but would it have made sense for Ms Devine to do at least a little bit of fact checking before this was published? Admittedly I don't like her journalism anyway but now it appears to be factually incorrect as well; that's bad journalism.