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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Aussie’s Terror Sentence Reversed on Appeal

WASHINGTON, D.C. (CN) - An Australian man held prisoner at Guantanamo Bay for years had his terrorism conviction reversed by a military appeals commission.

In 2007, David Hicks pleaded guilty to providing material support to terrorism in a military commission trial, after he had been incarcerated at Guantanamo Bay since 2001. He received a seven-year prison sentence, whittled down to just nine months as part of the deal, and was transferred back to Australia to serve that time.

The stipulation of facts in Hicks' case says he fought with al-Qaida in November 2001 until those forces were overran and he tried to flee to Pakistan.

It was Pakistan where Hicks had traveled a year earlier, joining up with terrorist organization Lashkar-e Tayyiba (LET), where he received military training and participated in an attack on an Indian Army bunker, according to the stipulation.

Though Hicks waived his right to appeal as part of his pretrial agreement, that waiver was not properly filed after the trial, and he claimed in a 2013 appeal that his guilty plea was involuntary.

Six years later, he and his legal team from the Center for Constitutional Rights decided to challenge the conviction on the basis that "providing material support to terrorism" is not a war crime and never should have been tried in a military commission.

The United States argued that Hicks' waiver of the right to appeal was final and that the government is entitled to Hicks serving out his pretrial agreement. It conceded, however, "that the court should decline to affirm the findings and sentence" if the appellate court chose to review Hicks' case.

A three-judge panel with the U.S. Court of Military Commission Review found on Feb. 18 that a waiver of rights submitted before the convening authority's action is invalid.

As such, the Court of Criminal Appeals maintains the right to review Hicks case, according to the ruling.

Further, even though Hicks allowed six years to elapse between his conviction and his appeal, the court "enjoys broad authority under 10 U.S.C. § 950f(d) to 'affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved,'" Deputy Chief Judge Scott Silliman wrote for the commission.

Hicks maintained his right to appeal, Silliman found, and therefore the Court of Criminal Appeals must examine Hicks' conviction of providing material support to terrorism in a military commission trial.

Al Bahlul v. United States determines that Hicks should not have been tried before a military commission, and the prejudicial error requires that his sentence be vacated. The findings of guilty are set aside and dismissed against Hicks.

Hicks is represented by Baher Azmy, J. Wells Dixon, Shayana D. Kadidal, and Susan Hu, with the Center for Constitutional Rights. Joseph Margulies, Samuel T. Morison, and Major Justin Swick, JA, U.S. Air Force, contributed to briefs for Hicks.

Brigadier Gen. Mark S. Martins, JA, U.S. Army, with Capt. Edward S. White, JAGC, U.S. Navy, Marc A. Wallenstein, and Danielle S. Tarin argued for the United States.

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