SYDNEY – The United States has acknowledged that the conviction of an Australian man held for nearly six years in Guantanamo Bay was not legally valid.
The Australian, David Hicks, was one of the first people sent to Guantanamo, and he has already figured in a key U.S. court decision that expanded the rights of detainees held in the offshore prison. Initially charged with multiple crimes, including conspiracy to commit acts of terrorism, attempted murder, and aiding the enemy, Hicks ultimately pleaded guilty to a single charge of providing "material support'' to terrorism.
Hicks recently appealed, arguing that the law used against him was passed after 9/11 and could not be applied retroactively. In its reply, the U.S. argued that the review court should refuse to review the case because Hicks had entered a guilty plea. But in a crucial concession, the military commission's chief prosecutor said that if the appeal were allowed, "the Court should not confirm Hicks's material-support conviction."
The Jan. 16 brief by Brig. Gen. Mark S. Martins was obtained by ProPublica and has not yet been made public.
"Hicks will finally get justice," said Michael Mori, a Marine Corps major who was Hicks' military lawyer. Mori is now out of the military and is no longer involved in the case, but he said he has seen a copy of the prosecutor's brief, as did two lawyers currently representing Hicks.
Hicks would not have been convicted in the first place "if the case had been tried in federal court, instead of the politically motivated military commissions," said Mori, author of a book about the case, "In the Company of Cowards: Bush, Howard and Injustice at Guantanamo," which was published last September.
The latest development is a striking retreat for the American government. The Bush administration initially described Hicks as among the "worst of the worst," the label used for the men held in Guantanamo. And in 2007, when Hicks was still in Guantanamo, the American ambassador in Australia, Robert D. McCallum Jr., described the Guantanamo detainees as "ruthless fanatics who would kill Australians and Americans without blinking an eye."