More on the David Hicks Plea Bargain
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"After the conversations we had with David you could see all he wants to do is get home. If any of you put yourself in David's situation ... most of you would be pleading guilty to something just to get out of the place."
--Terry Hicks, father of Guantanamo detainee David Hicks
Apparently it's not only Australian detainee David Hicks who may be willing to "say anything" to get out of Guantanamo, but also the Australian government itself:little nothing about Australian civil rights law, post-conviction remedies or separation of powers doctrines, not to mention the law of war, extradition law or the Geneva Conventions.
But I do know that courts, including Australian courts, can void contracts.
Speaking strictly in the abstract, all David Hicks need do once he's in Australia is file their equivalent of a habeas petition -- or any other action that gets him into court -- and simply claim duress. A contract entered into under duress is voidable. End of discussion.
Alternatively, he can simply claim unconscionability, which also voids a contract.
Surely a contract that requires the use of the Australian penal system must be subject to review by Australian courts. And it is of course those same Australian courts that will decide whether the courts (i.e., they themselves) are bound by this contract in the first place.
Stated differently, the Australian courts can simply rule that they were not a party to the contract and need not be bound by it, even if Hicks nominally is. In the U.S. at least, the Justice Department cannot simply "contract away" the jurisdiction of federal courts (though I suspect the Bush Administration wishes otherwise).
Finally, whatever rules of due process Australian citizens enjoy may very likely trump the particulars of this plea bargain. In the U.S., it is well-settled law that criminal defendants cannot waive their rights casually or haphazardly; very rigorous standards of due process must still be met.
Keep in mind that it's not like Australia would then send him back to Gitmo, and would certainly not just set him free. He would presumably get a regular Australian criminal trial, or at least a proper (i.e., uncoerced) sentencing hearing.
Again, Hicks is very likely guilty of -- something. Point conceded. But even the guilty have rights, and have some entitlement to basic human dignities -- including not being subjected to kangaroo court plea bargains (no pun intended).
Hopefully the Australian courts will concur and disregard Hicks' questionable plea deal.
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Meanwhile, Defense Secretary Robert Gates is inviting Congress to initiate discussions on how to eventually close Guantanamo. Which invites the question: If it ain't broke, why shutter it?
--Terry Hicks, father of Guantanamo detainee David Hicks
Apparently it's not only Australian detainee David Hicks who may be willing to "say anything" to get out of Guantanamo, but also the Australian government itself:
The government would be powerless to reduce any sentence served in an Australian prison by a Guantanamo Bay detainee who this week admitted to aiding al-Qaida, the [Australian] attorney general said Thursday.Granted, I'm venturing far outside my comfort zone on this subject, as I know
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"The arrangement provides for enforcement of the nature and duration of any sentence, so that the Australian government could not unilaterally shorten or dispose of any such sentence," [Philip] Ruddock told Parliament.
But I do know that courts, including Australian courts, can void contracts.
Speaking strictly in the abstract, all David Hicks need do once he's in Australia is file their equivalent of a habeas petition -- or any other action that gets him into court -- and simply claim duress. A contract entered into under duress is voidable. End of discussion.
Alternatively, he can simply claim unconscionability, which also voids a contract.
Surely a contract that requires the use of the Australian penal system must be subject to review by Australian courts. And it is of course those same Australian courts that will decide whether the courts (i.e., they themselves) are bound by this contract in the first place.
Stated differently, the Australian courts can simply rule that they were not a party to the contract and need not be bound by it, even if Hicks nominally is. In the U.S. at least, the Justice Department cannot simply "contract away" the jurisdiction of federal courts (though I suspect the Bush Administration wishes otherwise).
Finally, whatever rules of due process Australian citizens enjoy may very likely trump the particulars of this plea bargain. In the U.S., it is well-settled law that criminal defendants cannot waive their rights casually or haphazardly; very rigorous standards of due process must still be met.
Keep in mind that it's not like Australia would then send him back to Gitmo, and would certainly not just set him free. He would presumably get a regular Australian criminal trial, or at least a proper (i.e., uncoerced) sentencing hearing.
Again, Hicks is very likely guilty of -- something. Point conceded. But even the guilty have rights, and have some entitlement to basic human dignities -- including not being subjected to kangaroo court plea bargains (no pun intended).
Hopefully the Australian courts will concur and disregard Hicks' questionable plea deal.
---
Meanwhile, Defense Secretary Robert Gates is inviting Congress to initiate discussions on how to eventually close Guantanamo. Which invites the question: If it ain't broke, why shutter it?
Posted by Kip on
29 March 2007
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