David Hicks’ Plea Agreement

The Australian has the complete text. Here are some of the juciest tidbits, with comments:

b. I agree that I will not communicate with the media in any way regarding the illegal conduct alleged in the charge and the specifications or about the circumstances surrounding my capture and detention as an unlawful enemy combatant for a period of one (1) year. I agree that this includes any direct or indirect communication made by me, my family members, my assigns, or any other third party made on my behalf.

As a matter of U.S. constitutional law, this provision seems woefully overbroad. Hicks can clearly bargain away his own right to speak publicly about his detention, but how can he bargain away the right of his family members to do so — at least as long as they are not simply passing along his words?

e. I understand and agree that the Convening Authority can withdraw from this agreement and this agreement will become null and void, in the event that:

1. I fail to plead guilty as required by this agreement;

2. The commission refuses to accept my plea of guilty to any charge;

3. The commission sets aside my plea of guilty for whatever reason, including upon my request, before sentence is announced; or

4. I fail to satisfy any material obligation or term of this agreement, or I have misrepresented any material term of this agreement.

This is the most ironic provision of the agreement, given that — as we now know — the plea bargain was negotiated by the Convening Authority itself, not by the military prosecutors. The lead prosecutor, Colonel Morris Davis, did not even know that negotiations were taking place; he only learned about the agreement when it was presented to him the day of the hearing. And he was not happy about it: “In an interview later, he said the approved sentence of nine months shocked him. “I wasn’t considering anything that didn’t have two digits,” he said, referring to a sentence of at least 10 years.” It’s also worth noting, for the cynics among us, that Susan J. Crawford, the head of the Convening Authority who personally negotiated the agreement, was Dick Cheney’s Inspector General when he was Secretary of Defense.

i. I have never been illegally treated by any person or persons while in the custody and control of the United States. This includes the period after my capture and transfer to US custody in Afghanistan in December 2001, through the entire period of my detention by the United States at Guantanamo Bay, Cuba. I agree that this agreement puts to rest any claims of mistreatment by the United States.

My that’s a big grain of salt…

j. I further understand and agree that the entire period of detention as an unlawful enemy combatant is based upon my capture during armed conflict, has been lawful pursuant to the law of armed conflict and is not associated with, or in anticipation of, any criminal proceedings against me.

Another bizarre provision. I know that Bush believes he gets to determine the meaning of the laws of war, but I don’t think Hicks’ views on the subject are particularly relevant. Hypothetical Bush official in a (very) hypothetical ICJ case: “But your honors, Hicks admitted he was lawfully detained as an enemy combatant! Who are you to second guess him?”

The entire plea agreement reeks of politics — and the Bush administration isn’t exactly trying to hide that fact. How hard would it have been for Secretary Gates to order Colonel Davis to pretend the agreement was his? Was the administration worried that he would do the moral thing and resign, following the inspiring example of the military prosecutor who refused to use evidence obtained through torture? Or was the administration simply repaying its debt to John Howard, one of Bush’s last allies in the Iraq war, who is steadily sinking in Australian polls?

Though Australian officials have said they were not directly involved in plea negotiations, Mori declined to answer questions about what, if any, influence they had. Australian Prime Minister John Howard, up for reelection this year, has been under public pressure to bring Hicks home. He turned to Vice President Cheney to implore that the case be resolved. Crawford was the Defense Department’s inspector general from 1989 to 1991, when Cheney was defense secretary.

“What an amazing coincidence that, with an election in Australia by the end of the year, he gets nine months and he is gagged for 12 months from talking about it,” said Australian lawyer Lex Lasry, who was in Cuba to monitor the case over the past week.

Australia’s foreign minister, Alexander Downer, told reporters in Australia on Friday night that there were initial plea discussions about Hicks’s case two years ago and that the negotiations picked up speed recently. But, he said, “these are not decisions of the Australian government.”

You be the judge…