Col. Morris Davis on the Political Prosecution of David Hicks

by Kevin Jon Heller

David Hicks is back in the news here in Australia, because the DPP has announced that it intends to seize any royalties he receives from the sale of his book, Guantanamo: My Journey.  The DPP’s decision has received a great deal of criticism, for a variety of reasons: Hicks accepted a plea because the US government threatened to put him in isolation if he didn’t; he pleaded guilty to an imaginary war crime, material support for terrorism; and he has become something of an Australian folk hero in light of the gross unfairness of the military-commission system.

We have always known that Hicks’ prosecution was distorted by politics; as I discussed a couple of years ago, Col. Morris Davis resigned his position as chief prosecutor of the military commissions not long after Hicks pleaded guilty, alleging that his military superiors had interfered with the prosecution, and then testified on behalf of Salim Ahmed Hamdan, claiming that the selection of defendants and evidence in a variety of cases had been driven by political considerations instead of legal ones.

One of the people Col. Davis singled out for criticism in 2008 was William Haynes, the Pentagon’s general counsel, who had memorably said, “We can’t have acquittals, we’ve got to have convictions.”  A recent interview that Col. Davis gave Truthout, however, makes clear that Haynes’ role in the Hicks case was even more inappropriate than we imagined.  Here is a snippet:

When he was selected as chief prosecutor in September 2005, Davis said he made it clear to his superiors at the Pentagon that “the one case I did not want to start with was David Hicks.”

“The first case is the one that will get lots of attention,” Davis said. “Unfortunately, Hicks’ case was already in the pipeline. It was a terrible case. We told the world these guys are the ‘worst of the worst.’ David Hicks was a knucklehead. He was just a foot solider, not a war criminal. But when Congress passed the Military Commissions Act they authorized prosecuting material support, which is what Hicks was charged with, as a war crime. You could prosecute everyone at Guantanamo under that theory.”

Despite Davis’ concerns, the Bush administration was determined to charge Hicks, even if the evidence against him was thin, to help out an ally in the war on terror, US government documents obtained by Truthout show.

Davis also believes that’s what happened. He said he arrived at that decision not long after he received an urgent phone call in January 2007 from Pentagon General Counsel William “Jim” Haynes who asked him, “How quickly can you charge David Hicks?”

Davis said that was the first and only time Haynes had ever called him about a specific case and he found it to be “odd.” The phone call was made one day after US officials met with the ambassador to Australia, where Hicks’ case and its impact on Howard’s re-election campaign was discussed, according to a secret State Department document obtained by Truthout.

Davis informed Haynes, who Bush had twice nominated to serve on the Fourth Circuit Court of Appeals, that he could not initiate charges against Hicks “even if he wanted to” because the “Manual for Military Commissions” had not been prepared yet by Secretary of Defense Robert Gates and a “convening authority” who is supposed to oversee the process had not been appointed.

“The manual implements the law, in this case the Military Commissions Act of 2006,” Davis said. “It fills in the details the statute doesn’t. It fills in the elements of crimes, lays out the elements of crimes. When Haynes called me I said I couldn’t charge Hicks because I did not know what the elements of the offense are. I said, ‘wait for the manual to be written.’”

Haynes, who did not return emails or phone calls for comment, told Davis the manual was being “worked on” and the Pentagon was reviewing candidates to serve as convening authority. Haynes still wanted to know how quickly Hicks could be charged with war crimes after the military commission’s manual was signed by Gates.

“I told Haynes two weeks,” Davis said. “He said ‘two weeks! Two weeks is too long.’ Haynes then told me to ‘be ready’ and asked if I could charge other [Guantanamo detainees] in addition to Hicks. He didn’t say why.”

There is much more of interest in the article, particularly Col. Davis’s explanation of how Haynes and David Addington negotiated Hicks’ plea bargain behind his back — and how the plea bargain was designed to bolster the electoral prospects of John Howard, one of Bush’s last remaining allies, by making the Hicks case go away quietly.

Go read the whole article.  It’s ugly.

http://opiniojuris.org/2011/07/28/col-morris-davis-on-the-political-prosecution-of-david-hicks/

4 Responses

  1. Folk hero?

    I am not at all sure opinion polls will support him on this as strongly as on issues around his treatment and rights. I suspect that a lot of people see him as a harshly/wrongly treated dickhead but a dickhead all the same; and don’t think he should be able to ‘profit’ from it.

    I am actually curious as to what public opinion is on the plea bargain, again I suspect (but really have no idea) that many people will think it was a tough bargain but kinda right – despite there being so much obviously wrong with it from any legal and most sophisticated moral perspectives (i.e. more sophisticated than: he’s lucky not to be dead, everything else is a bonus or dickheads deserve their lot; both are non-negligible views in the general population).

  2. Morris Davis continues to do important work at bringing light.
    Best,
    Ben

  3. Professor Heller,

    What evidence do you have to show that David Hicks is considered a folk hero in Australia?

  4. The New South Wales Supreme Court has issued a restraining order (it appears to be in the nature of an interim measure) over assets that appear to be connected to the sale of the book.

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