On Wednesday, the U.S. Court of Military Commission Review (CMCR) voided the terrorism conviction of David Hicks. Hicks, an Australian captured in Afghanistan in 2001, pled guilty to providing material support to terrorism. His plea bargain suspended his seven-year sentence to nine months and allowed him to return to Australia.
Hicks argued that last year's D.C. Circuit case, Al Bahlul v. United States, was controlling. In Al Bahlul, the D.C. Circuit ruled that crime of providing material support to terrorism could not be charged in military commissions because it was not a war crime in 2006, when Congress passed legislation authorizing military commissions in Guantánamo Bay. Hicks's case differs from Al Bahlul in that he pled guilty and waived his right to appeal his charge as part of his plea agreement.
Despite the jurisdictional bars proposed by the Military Commissions prosecutors, the CMCR found that voiding Hicks's conviction was consistent with 10 U.S.C. § 950f(d), which requires that the Court "affirm only such findings of guilty, and the sentence of guilty, and the sentence of 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." The CMCR noted that the differences between Al Bahlul and Hicks's case "do not dictate a different result."
Lawfare reports that the Department of Defense will not be appealing.
Hicks is the third defendant convicted in military commissions to have his conviction vacated. Salim Ahmed Hamdan's conviction was vacated in 2012 and Ali Ahmad Suliman al-Bahlul's conviction was vacated in the aforementioned 2013 case.
Hicks argued that last year's D.C. Circuit case, Al Bahlul v. United States, was controlling. In Al Bahlul, the D.C. Circuit ruled that crime of providing material support to terrorism could not be charged in military commissions because it was not a war crime in 2006, when Congress passed legislation authorizing military commissions in Guantánamo Bay. Hicks's case differs from Al Bahlul in that he pled guilty and waived his right to appeal his charge as part of his plea agreement.Despite the jurisdictional bars proposed by the Military Commissions prosecutors, the CMCR found that voiding Hicks's conviction was consistent with 10 U.S.C. § 950f(d), which requires that the Court "affirm only such findings of guilty, and the sentence of guilty, and the sentence of 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." The CMCR noted that the differences between Al Bahlul and Hicks's case "do not dictate a different result."
Lawfare reports that the Department of Defense will not be appealing.
Hicks is the third defendant convicted in military commissions to have his conviction vacated. Salim Ahmed Hamdan's conviction was vacated in 2012 and Ali Ahmad Suliman al-Bahlul's conviction was vacated in the aforementioned 2013 case.
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