By ANDREW O. SELSKY
The Associated Press
Wednesday, March 28, 2007; 4:26 AM
-- David Hicks' guilty plea may send him home to Australia to serve his terrorism sentence, but it also short-circuits a full test of the new U.S. military tribunal system, which will have to handle more complicated cases in the future.
Not even the prosecution said Hicks' guilty plea Monday night was a victory for the revised Guantanamo Bay military tribunals, set up after the Supreme Court last summer ruled the Pentagon's previous system was unconstitutional.
The 31-year-old Australian was the first detainee to face trial under the Military Commissions Act, which President Bush signed into law in October. But by pleading guilty at his arraignment to providing material support to terrorism, he deprived the tribunal system of a true road test: a trial.
Unless the Supreme Court steps in again and throws out the new tribunal system, officials plan to prosecute as many as 80 prisoners at the isolated base in southeast Cuba. Probably next in line are Omar Khadr, a Canadian who was 15 when he was captured after a firefight during which he allegedly killed a U.S. Army soldier with a grenade, and Salim Ahmed Hamdan, a former driver for Osama bin Laden. Unlike Hicks, admitted jihadists are among the 80 who could face the death penalty if convicted.
Lawyers for Hicks and the prosecution were meeting Tuesday to discuss the details of his plea before it is presented to the military judge who must approve it. If the plea is accepted, he could be sentenced this week and would then be sent to Australia, where the United States has agreed to let him serve his sentence.
Hicks, a Muslim convert, allegedly attended al-Qaida camps in Afghanistan, conducting surveillance on the British and American embassies as part of his training. But even by the military's account he was a small fish, a hapless holy warrior who had spent only two hours on the Taliban front line before it collapsed in November 2001 under attack by U.S. Special Forces and the Northern Alliance.
While fleeing, Hicks came across a group of Arab fighters who told him they were heading back to the front to fight to the death. Hicks declined to join them and was captured in December 2001 as he tried to escape into Pakistan, according to the military's charge sheet.
Hicks' father, Terry Hicks, said Tuesday he believed his son had pleaded guilty as part of a bargain with prosecutors that would get him out of the Guantanamo prison. "It's a way to get home, and he's told us he just wants to get home," Terry Hicks told Australian Broadcasting Corp. radio.
While the guilty plea may have prevented a trial, Monday's hearing did foreshadow what's in store during upcoming trials. The scene in the small courtroom was at times tumultuous.
The judge, Marine Col. Ralph Kohlmann, ordered two lawyers to leave the defense table after ruling they were not authorized to represent Hicks. One of the attorneys, Joshua Dratel, refused to sign an agreement to abide by tribunal rules, even those not yet established.
"These are the same problems that plagued the earlier commissions, that the process is ad hoc," Dratel told the black-robed judge before leaving the defense table.
Jennifer Daskal of Human Rights Watch, an observer at the hearing, said the tribunal has failed to establish basic rules for defense lawyers.
"The antics at the Hicks hearing underline the illegitimacy of the Guantanamo tribunals," Daskal said.
Marine Lt. Col. Colby C. Vokey, who represents Khadr, said Hicks pleaded guilty "to escape the oppression of Guantanamo Bay and the fundamentally unfair military commissions system."
"He'll plead guilty and is willing to serve a sentence for his plea, as long as that means prison in his own country," Vokey told The Associated Press.
Air Force Col. Morris Davis, the chief prosecutor for the tribunals, said he was satisfied Monday's hearing ended in a guilty plea but added: "I don't look at it as a victory. I look at it as a first step."
Davis added that it was important to him that the tribunal system be fair.
Attorneys for Guantanamo prisoners insist the new system is still unfair, and have asked the Supreme Court to intervene again and guarantee prisoners have the right to challenge their confinement in U.S. courts, a principal known as habeas corpus that is enshrined in the U.S. Constitution.
"Hick's guilty plea should not be seen as legitimizing in any way an utterly illegal system of offshore penal colonies, abuse and 'trials' that violate fundamental due process rights," the Center for Constitutional Rights, which represents hundreds of Guantanamo detainees, said in a statement Tuesday.
Australian attorney David McLeod, who met with Hicks a day before the hearing, said his client did not expect a fair trial, was depressed and had been considering the plea deal to end his five-year imprisonment at Guantanamo Bay.
His guilty plea was seen by attorneys as Hicks' only recourse to get out of Guantanamo.
"As one of my other clients said, he would rather plead guilty and be sent to jahanam _ hell _ than stay in Guantanamo," said Clive Stafford Smith, an attorney for several other Guantanamo detainees.
The Australian government won't comment on the sentence or plea bargain. But Don Rothwell, a professor of international law at Australian National University, said Hicks would be obligated to serve out the entirety of his sentence back home under Australia's treaty agreements with the United States.
"Australia cannot in any way seek to interfere with the original sentence unless there have been set parole agreements between the parties," he told the AP.
But if the U.S. Supreme Court again rules the military tribunals unconstitutional, Hicks might have grounds to seek to vacate his sentence, Rothwell said.
Associated Press Writer Meraiah Foley in Sydney, Australia, contributed to this report.