ACSBlog: The Blog of the American Constitution Society

by Jimmy R. Howell, Associate, Thompson Hine LLP

Last Friday, the United States sentenced its first enemy combatant in the special military tribunal at Guantanamo Bay.  That enemy combatant, David Hicks, is an Australian who was apprehended in Afghanistan, accused of being an Al Qaeda trainee, and charged with conspiracy, attempted murder, and aiding the enemy.

For these charges, he faced a potential life sentence.  As a detainee who was to be tried first among the nearly 400 people imprisoned at Guantanamo Bay, he represented the worst of the worst.  Yet, under a plea agreement between Hicks and the United States, Hicks will only serve 9 months in prison.  In light of the severity of the charges against him and the crimes to which he confessed, such a sentence seems nothing other than diminutive.

This begs the question, if the government had a case against Hicks for the factual basis underlying Hicks' designation as an "enemy combatant," why did the United States choose not take its case to the military jury?  And, why did the Government's plea deal offer only 9 months?  There are many potential answers, but there is a persistent and disturbing possibility that can't be shaken.  That is this: What if Hicks is innocent?

This question, recurring and unanswerable, is the fundamental problem that has crippled the legitimacy of the Bush Administration's treatment of enemy combatants.  The civilian criminal justice system operating in the United States is based on a combination of rights, processes, presumptions, burdens, and ethical duties.  When a prosecutor brings a case against a defendant,  the public can rely on the outcome because of the faith we have that the process works.

We can't have faith that the process works in Guantanamo Bay.  Hicks is a perfect example.  Before Hicks signed his plea agreement, he had complained of abuse during his detention.  As a part of his plea agreement—which allowed him to spend the remainder of his custody in an Australian prison and, therefore, the only means of his escape from alleged abusive treatment in Guantanamo Bay—Hicks stated that he “has never been illegally treated.”  Further, he is prohibited from speaking out about his detention for a year and may never profit from the publication of his story.  Based on these observations and the lack of processes that, in the American experience, yield reliable outcomes, we will never know if justice was served on March 30.

This doubt, the Guantanamo Effect, is not unique to Hicks' case.  Not long ago, Abd al-Rahim al Nashiri, a detainee accused of planning the bombings of the USS Cole and U.S. embassies in Africa, confessed to charges related to those terrorist attacks.  He subsequently stated that his confession was the result of torture and that he'd confessed to far more than he had actually done.  A recent confession from Khalid Sheik Mohammed, the accused 9/11 mastermind, is reported to be the product of various methods of torture, including waterboarding.

These confessions and, in the case of Hicks, the imprisonment that they produce, haunt us with a lingering sense of skepticism that blocks the satisfying feeling that justice has been served.  We know that there were, and are, dangerous individuals who plot the violent death of American citizens around the world, but the current system the United States uses to detain and try those suspected of participating in such plots is de facto untrustworthy.  We will never know if those who are accused or those who confessed are actually guilty.

A typical response to this assertion is that people like Khalid Sheik Mohammed are so heinous that they are undeserving of basic due process protections.  Those who advance this proposition, such as advocates in the Bush Administration, have missed the point entirely.  For whatever gain that accrues to us from abandoning the precept of our democracy that all men are created equal, we will forever suffer the far greater loss of never obtaining the resolution for which we sacrificed that principle in the first place.