by Mark Drumbl

by Mark Drumbl

Hicks has been sentenced.

In an earlier post, I expressed my hope that the Hicks conviction and sentencing judgment would serve as a teaching moment regarding the heinousness of terrorist violence and its denunciation through rule of law.  I’m not so sure that has happened.

Assuredly, the judge read the 35 admissions Hicks had made. Hicks acknowledged each. There were some quibbles in the plea negotiations. The NY Times reports:

One paragraph of the charges said, for example, that Mr. Hicks had watched television footage of the Sept. 11 attacks at a friend’s house in Pakistan and had “expressed his approval of the attacks.” But the paragraph Mr. Hicks agreed to said that the friend “has said he interpreted his gestures as approval of the attacks.”

The N.Y. Times also reports:

During the hearing, the military judge disclosed an extraordinary series of concessions Mr. Hicks had made to his American captors in negotiations for the plea deal, in which he admitted material support to a terrorist organization.

The deal included a statement by Mr. Hicks that he “has never been illegally treated” while a captive, despite claims of beatings he had made in the past. It also included a promise not to pursue suits over the treatment he received while in detention and “not to communicate in any way with the media” for a year.


Saturday, March 31st, 2007 8:30 am | Posted in: Law Blog | Trackback | 0 Comments
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Hicks Plea Details

by Greg McNeal

I’m on a lunch break at our Sacred Violence Conference ( ), however I wanted to step out and post this breaking news regarding the Hicks plea agreement. 

 According to news reports Hicks confessed to 35 specified allegations, his plea agreement mandates that: 

  • He is forbidden from talking to the media for 12 months
  • He will serve a jail term limited to seven years (actual term determined by the panel)
  • A portion of his sentence may be suspended
  • He admits he was never mistreated
  • If he violates the terms of his agreement it may delay his release from jail
  • He must agree to assist U.S. and Australian officials with information about his terrorist activities

Friday, March 30th, 2007 12:02 pm | Posted in: Law Blog, Counterterrorism | Trackback | 1 Comment
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ICC Judge Resigns

by Michael Kelly

The International Criminal Court lost its first judge this month. Judge Hudson-Phillips was the former Attorney General for Trinidad and Tobago. Following is the ICC’s official announcement:

Judge Karl T. Hudson-Phillips submitted his resignation from the International Criminal Court (ICC) for personal reasons on 14 March 2007. His resignation will take effect on 30 September 2007.

The President of the ICC, Judge Philippe Kirsch, thanked Judge Hudson-Phillips for his important contributions to establishing the judicial foundations of the Court. As “dean of the judges,” Judge Hudson-Phillips had chaired the first meetings of judges before the election of the Presidency. He also contributed actively to the drafting of the Regulations of the Court. President Kirsch expressed the ICC’s deep regret at his resignation and forthcoming departure from the Court.

Judge Hudson-Phillips has extensive private practice experience in his native Trinidad and Tobago and throughout the Commonwealth Caribbean countries. He had also previously served as Attorney-General and Minister of Legal Affairs of Trinidad and Tobago before his election to the ICC. Judge Hudson-Phillips had been assigned to the Trial Division. Pending the beginning of the first trials, he was not serving on a full-time basis at the seat of the Court.

President Kirsch informed the President of the Bureau of the Assembly of States Parties, H.E. Bruno Stagno Ugarte, of Judge Hudson-Phillips’s resignation. In accordance with article 37 of the Rome Statute, the Assembly of States Parties will elect a judge to fill the vacancy left by Judge Hudson-Phillips’s resignation.

Thursday, March 29th, 2007 7:34 pm | Posted in: Law Blog, International Criminal Law, Tribunal Materials | Trackback | 0 Comments
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Hicks, Khadr and Upcoming Events UPDATE

by Greg McNeal

The House Armed Services Committee began conducting hearings today regarding Military Commissions and the future of GTMO.  Ike Skelton, identified seven possible defects in the MCA, stating:

“Last year, when Congress passed this law, I argued that the most important task before the Congress was to design a system that could withstand legal scrutiny and would be found to be constitutional.  For that reason, I proposed that we expedite the ability of the courts to review the constitutionality of various provisions of the bill, which I find to be legally suspect. 

“First, it seems clear to me and many others that the Act may be unconstitutionally stripping the federal courts of jurisdiction over habeas cases.   “Relatedly, the Act may violate the exceptions clause under article III of the Constitution by impermissibly restricting the Supreme Court’s review.  “Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention. “Fourth, the provisions regarding coerced testimony may be challenged under our Constitution. “Fifth, the Act contains very lenient hearsay rules which rub up against the right of the accused to confront witnesses and evidence.  “Sixth, the Act may be challenged on equal protection and other constitutional grounds for how it discriminates against the detainees for being aliens. “Lastly, article I of the Constitution prohibits ex post facto laws. That is what this Act may have created.”

As it relates to coerced testimony and interrogation, my colleague Amos Guiora has something to say about that here.  With the Hicks guilty plea, and sentencing likely at the end of the week, plus charges against Omar Khadr likely to be certified in the coming weeks, we should expect some increased Congressional attention to the MC’s.  UPDATE: In related notes, Diane Marie Amann provides us with a useful pointer and summary of the case People v. La Frana, a 52 year old Illinois case in which a murder conviction was set aside because the confession upon which it was based had been coerced.  Defense Counsel in the case was none other than Supreme Court Justice John Paul Stevens.  Check out her post HERE. 

Don’t expect Khadr to enter a guilty plea, or to plead his innocence.  What is more likely is that he will pull a Saddam, seeking to insert chaos into the courtroom (as detailed in Saddam On Trial). 

Khadr previously has stated he will not cooperate with his “infidel pig” lawyer, or the “court of the infidels” which will make for a bit more excitement than the Hicks case.  It also puts advocates for the Defense in an interesting position— if Hicks was innocent, and his plea was part of a “brilliant defense maneuver” to get him out of the MC’s and into regular courts, is the opposite true.  That is, if Khadr enters a not-guilty plea is his strategy ill conceived?  It seems Defense advocates can’t have it both ways and it will be interesting to see how these cases develop. 

Thursday, March 29th, 2007 2:58 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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Interrogation of Detainees

by Amos Guiora

Today the House Armed Services Committee held hearings on the Military Commissions Act of 2006 and the Future of the Detention and Interrogation Facilities at Guantanamo Bay.  My article, ” Interrogation of  Detainees: Extending a Hand or a Boot” (University of Michigan Journal of Law Reform, forthcoming) addresses many of the issues that will come before the Committee.

The article analyzes the limits of interrogation in Guantanamo Bay by historical analogy to the treatment of African-Americans in the detention centers in the Deep South in the 1930’s and 1940’s.  In my article I recommend specific interrogation measures that can be implemented while guaranteeing detainees certain constitutional guarantees and protections.

Thursday, March 29th, 2007 11:50 am | Posted in: Law Blog, Counterterrorism, Criminal Law | Trackback | 1 Comment
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This Friday: “Sacred Violence: Religion and Terrorism”

by Greg McNeal

I’m excited to announce that this Friday at Case Western we will be hosting the first annual Roe Green Foundation Conference entitled- “Sacred Violence: Religion and Terrorism.”  Our keynote speaker for the event will be the eminent Dr. Bruce Hoffman, author of Inside Terrorism.  He is Professor of Security Studies at Georgetown University’s School of Foreign Service and formerly held the Corporate Chair in Counterterrorism and Counterinsurgency at the RAND Corporation and was also the Director of RAND’s Washington, D.C. Office. 

The Roe Green Foundation Conference, presented by the Institute for Global Security Law and Policy, is the first of three major national conferences at Case Western Reserve University School of Law supported by the Foundation. The series’ focus is on the most relevant current issues concerning global security law and policy, and brings together distinguished leading experts to discuss such topics as bioterrorism and religion and terrorism, and to assess the U.S. response to terrorism.

This year’s Roe Green Foundation Conference will examine the role that theological justification plays both in motivating individual suicide terrorists and sustaining an organization’s use of this tactic by providing it with a deep pool of recruits to draw on. It will explore and explain the rise of suicide terrorism world-wide since 9/11, assess religion’s role as a key accelerative in this process, and discuss potential legal and policy responses to such acts. 

The event will be WEBCAST, and for those of you who can make the trip, CLE credit is available.  Check out the event website HERE. 

Wednesday, March 28th, 2007 9:57 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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Hicks in a Broader Perspective

by Mark Drumbl

Articles in the NY Times and WaPo report that the Hicks guilty plea is seen by some as a “victory” or “affirmation” for the U.S. Administration. It can be seen in this light, but only if we look narrowly. Certainly, a case has been cleared. The first conviction will emerge from a Military Commission process that, heretofore, has only generated extensive constitutional litigation (and important precedent, such as Hamdan), with more litigation ongoing.

Part of the problem is that we’ve given little thought to the goal or purpose of punishing convicted terrorists. We haven’t assessed what we actually hope to achieve by punishing. Is it deterrence? If so – general or specific? Or is it retribution? Incapacitation? Reintegration? Reconciliation? To restitute those harmed? Or is the goal of punishment something more communicative and pedagogical – namely, what I call expressivism – to augment the moral value of law, stigmatize those who break it, and establish an authoritative public, and transnational, narrative regarding the heinousness of terrorist violence?

I have posted an essay on SSRN which posits that, based on an analysis of perpetrators of atrocity in other contexts, the most plausible justification for punishing convicted terrorists, in this case al-Qaeda terrorists connected to the September 11 attacks in the United States and other wide-scale attacks against civilians, is the expressive justification. Accordingly, it makes sense to structure process and punishment in a manner conducive to obtaining this goal. I argue that the 2006 Military Commissions Act, although better able to facilitate expressive goals than the commissions that had been struck down in Hamdan, still remains deficient in important regards. So, too, does the first output of that system, the Hicks plea bargain.

After over five years of detention at Gitmo, and a process largely lacking in due process as measured by international standards, Hicks perfunctorily pled guilty to providing material support to a terrorist organization. He will probably return home to Australia to serve sentence. A risk emerges that the public will learn little, if anything, about what he did and how his actions fit into the broader machinations of Al-Qaeda. The public risks losing the opportunity for a full, public condemnation of terrorist violence that a more fulsome public trial would have provided. There is little, if any, pedagogical or dramaturgical moment here. If one of the major purposes of atrocity prosecutions is to build a culture of rule of law, to authenticate historical narratives, and to condemn behavior that busts the global trust, then the Hicks conviction may fall short.

I hope that, when it comes to convicting him and sentencing him, the Commission issues a full judgment, replete with details, information, and jurisprudential connections, that it releases to the global public so as to be of pedagogical and expressive value.

Wednesday, March 28th, 2007 10:17 am | Posted in: Law Blog | Trackback | 1 Comment
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Two of the better Hicks Op-Eds

by Greg McNeal

I’m sure many readers will disagree with me about their merits, but I like these two op-eds.  The critics who proclaimed Hicks was an innocent have a lot less left to argue with now.  Granted, they may argue about a flawed process, but on the merits Hicks has definitively admitted his guilt. 

First, writing in The Daily Telegraph, Luke Mcllveen states that “Hicks is damned by his words.”

NO MATTER what David Hicks or his undergraduate groupies say, the incontestable fact is he has pleaded guilty to supporting terrorists

The low-life from the outskirts of Adelaide is likely to be home by the end of the year and you can already picture the crowds of Austudy-dredgers who will gather at the airport to greet his arrival.

But they should be clear on this: the man they’ve painted as an innocent adventurer is an assistant to terrorists by his own admission.

The argument of those who have staked their reputations on his innocence will be that the grossly unfair military tribunal in Guantanamo Bay forced his hand and that he only pleaded guilty to secure his freedom.

Well, if you believe that you’ll believe anything.

Second, writing in The Australian, Janet Albrechtsen declares “Gun-toting jihadi was not an angel.” 

An excerpt:

Finally, David Hicks, also known as Abu Muslim al Australia, aka Abu Muslim Phillipine, aka Muhammed Dawood, has pleaded guilty to the charge of providing material support for terrorism.  And now watch as the real PR campaign goes into angelic overdrive.  His vociferous cheer squad will proclaim his innocence, declaring the plea was the only way for Hicks to get out of Guantanamo Bay. 

* * * *

Forget about the ads where his father, Terry Hicks, declared his love for his son. Let’s come back to the inconvenient aspects of the Hicks saga, those that never make it on to a “Free Hicks” billboard: the law and the facts.

First to the law. His supporters have long claimed that what Hicks has or has not done is not the issue. It’s about justice, they say. And now they will say pleading guilty was Hicks’s only way to avoid a kangaroo court, the US Military Commission. 

* * * *

Now to the facts. Hicks has pleaded guilty to his extensive links to terrorist organisations and his activities in Afghanistan, where he met Osama bin Laden and completed al-Qa’ida training courses. 

* * * *

Long before his admission yesterday, Hicks has made plenty of other, earlier admissions: training with the Kosovo Liberation Army in Albania and fighting with Lashkar-e-Toiba, where he “got to fire hundreds of rounds” into Indian-controlled Kashmir. In letters home to dad, he called himself a “well-trained and practical soldier”. He admitted to preparing for martyrdom because “the highest position in heaven” goes to those who “go fighting in the way of God against the friends of Satan”.

Tuesday, March 27th, 2007 4:16 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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UPDATE: Hicks pleads guilty at Gitmo

by Greg McNeal

According to an AP Report, Hicks “pleaded guilty Monday to a war-crime charge of providing material support to terrorism.”

Hicks entered the plea before a military judge in a courtroom on this U.S. naval base. Hicks had deferred entering a plea during his arraignment earlier in the day, but the presiding officer, Marine Col. Ralph Kohlmann, convened another session after lawyers told him Hicks would enter a plea.

And from the New York Times:

After Mr. Hicks’s guilty plea, the judge adjourned the case for further proceedings this week, evidently so that the lawyers could settle on what specific acts he may acknowledge. The sentence will be decided by a five-member military commission.

Lawyers have said in recent days that there have been plea negotiations since January. They have suggested that he might serve out the remainder of any sentence in Australia. Asked whether Mr. Hicks might be back in Australia by the end of the year, a military prosecutor said, “The odds are pretty good.”

Monday, March 26th, 2007 9:21 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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New Terror Suspect Transferred to GTMO

by Greg McNeal

According to a DoD Press Release (with a Hat Tip to Bobby Chesney):
Terror Suspect Transferred To Guantanamo

The Department of Defense announced today the transfer of a dangerous terror suspect to Guantanamo Bay, Cuba.

Abdul Malik, who was captured as a result of our ongoing conflict against Al Qaida, has admitted to being involved in terrorist attacks in East Africa.

Malik has admitted to participation in the 2002 Paradise Hotel attack in Mombasa, Kenya, in which an explosive-filled SUV was crashed into the hotel lobby, killing 13 and injuring 80. He also has admitted to involvement in the attempted shootdown of an Israeli Boeing 757 civilian airliner carrying 271 passengers, near Mombasa.

The capture of Malik exemplifies the genuine threat that the United States and other countries face throughout the world in the war on terrorism. Due to the significant threat this terror suspect represents, he has been transferred to Guantanamo. The detainees being held at Guantanamo have provided information essential to our ability to understand better how Al Qaeda operates, and thus to prevent future attacks against innocent civilians.

As with all the detainees in Guantanamo, Malik will undergo a combatant status review tribunal, where he will be given the opportunity to review an unclassified summary of the evidence against him and contest his enemy combatant status. The International Committee of the Red Cross will be granted access to this detainee. With today’s transfer there are approximately 385 detainees at Guantanamo Bay, Cuba.

Monday, March 26th, 2007 8:18 pm | Posted in: Law Blog, Counterterrorism | Trackback | 0 Comments
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