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.