Terrorism Trials: Military Commissions

CMCR Voids David Hicks' Guilty Plea and Sentence

By Wells Bennett
Wednesday, February 18, 2015, 2:23 PM

The Miami Herald (via the AP's Ben Fox) has a piece on the Court of Military Commission Review's (CMCR) ruling; Jess Bravin also has this report in the Wall Street Journal. 

The decision can be found here, and opens as follows:


Appellant urges us to set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc). Appellant asks that we find his waiver of his right to appellate review ineffective, and asserts that once we determine this case is properly before us, Al Bahlul dictates the outcome in his case.

Appellee counters that appellant’s waiver of his right to appeal is a jurisdictional bar to our review of his case, and in the alternative, the government is entitled to specific performance of his pretrial agreement. Appellee’s Response to Specified Issue 1-5. Should the Court reject these two contentions and review appellant’s case, the appellee concedes that the Court should decline to affirm the findings and sentence. Appellee’s Response to Specified Issue 5-6 (citing Al Bahlul, 767 F.3d at 29).

We agree with appellant and set aside the findings and sentence.

Update (4:10 p.m.): I tweaked the language above, so as to correct an earlier attribution error, to properly cite Ben Fox's authorship of the AP piece, and to note Bravin's reporting.

Further update: the Department of Defense's spokesman said as follows; note that there won't be any appeal by the United States:

On March 26, 2007, Mr. Hicks pled guilty to providing material support to terrorism based on voluntary admissions that he had trained at Al Qaeda's Farouq camp and Tarnak Farm complex in Afghanistan, met with Usama Bin Laden, and joined Al Qaeda and Taliban forces preparing to fight United States and Northern Alliance forces near Kandahar in September of 2001.  He successfully appealed his conviction at the United States Court of Military Commission Review on grounds that the United States Court of Appeals for the District of Columbia Circuit had previously ruled that material support for terrorism was not a viable charge in military commissions for pre-2006 conduct.  The government does not intend to appeal.  Mr. Hicks was repatriated to Australia in 2007, shortly after pleading guilty.