After nearly 10 years, military trials at the Guantanamo Bay Detention Camp have produced a total of six convictions. One of those was Australian David Hicks, who agreed to a plea bargain under which he would be sent back to Australia to serve out his sentence. On his release, he wrote a book about his experiences. Under Australian “proceeds of crime” laws, the earnings from books about a criminal career are liable to confiscation, and the Australian government accordingly froze the proceeds and took action to have them forfeited.
The news today is that the Director of Public Prosecutions has abandoned the actions and paid Hicks’ legal costs[1]. Although no rationale was given, the general presumption is that the US conviction would not stand up in an Australian court, either because (as Hicks alleged) Hicks’ guilty plea was extracted by torture, or because the whole system failed to meet basic standards of due process. Most simple of all is the fact that, unlike the usual case of plea bargaining, the options aren’t pleading guilty or going to trial. Rather those who plead guilty get a definite (and usually relatively short) sentence on top of their detention, while those who do not are held indefinitely without trial.
All of this is relevant now that the Obama Administration is trying to “normalise” the plea bargaining process, by getting those who have pleaded guilty to testify against others accused of more serious crimes. The idea that the state can torture someone, imprison them indefinitely, and then use their “voluntary” testimony (given in the hope of release) against another, then claim that this is an improvement on using confessions extracted by torture of the accused is more reminiscent of the legalisms of a totalitarian state than of anything that could be described as the rule of law.
fn1. The only other Australian detainee, Mamdouh Habib, was threatened with similar action, but this did not proceed. He eventually received a substantial (but secret) settlement in return for dropping claims against the Australian government for its alleged involvement in his torture.
{ 10 comments }
Bruce Wilder 07.24.12 at 2:22 pm
My understanding is that Hicks took what’s called an Alford plea, a kind of guilty plea in which the defendant can protest his innocence, which acknowledging that the prosecutor could very likely get a conviction on the same, or greater, charge.
An ordinary guilty plea requires that the defendant admit the crime, and, traditionally, that the defendant allocute, or recount details of the crime, as a way of confirming before the court, the facts of the crime alleged and the defendant’s guilt.
The Alford plea is an artifact of the evolving system of plea bargaining, under prosecutorial discretion, which involves the now routine threat of enhanced penalties for those choosing judicial trial. The big problem with the Alford plea is that there is no established process or standard of fact-finding, no determination by judge or jury that a crime has been committed, let alone that the accused committed the crime. There’s all kinds of specious rationalization for this abandonment of judicial fact-finding, of course, and a general agreement that the judge accepting the plea should ascertain that there’s at least some evidence of a crime and guilt, but oh well . . .
Quite apart from the whole fruit of the poisoned tree thing, posed by alleged torture, I don’t imagine that there’s much of an evidential record created in the case of an Alford plea, in a system in which much of the “evidence” was secret to begin with, and remained secret throughout and after the proceeeding, and in which, as a consequence of accepting an Alford plea, there’s no judicial finding of fact. Even if the rotten odor were not too repulsive for the Australian legal system, there might not be enough meat to chew. If Hicks were able to marshal any “additional” evidential record of his own, it could well be enough to overwhelm what was available to the plantiffs for a civil case.
JohnR 07.24.12 at 2:36 pm
It’s not “torture”; it’s “letting freedom ring”.
Sebastian H 07.24.12 at 2:55 pm
That plea bargaining article is chilling. It lets the Obama administration essentially bootstrap torture evidence into allegedly legitimate testimony by using the fruit of the torture (and the implied even if never carried out threat of more torture if you don’t cooperate). The normal plea bargain and flip process already produces lies against bigger fish, this process is even more vile.
faustusnotes 07.24.12 at 3:28 pm
That’s awesome news!
mpowell 07.24.12 at 4:16 pm
Evidence provided through the plea bargain process has always been a complete joke. It’s amazing to me that we actually have rules of evidence, but that testimony obtained as a result of a plea bargain has been consider fine. It tells you what kind of joke are legal system is that this is considered good practice.
MJB 07.25.12 at 7:46 am
The fact that they are encouraging people to testify against others sounds horribly similar to the Stalinist purges of the 1930’s
Deepa 07.25.12 at 9:07 am
Hicks is a member of LeT, the Pakistani terror group that carried out the atrocity in Bombay/Mumbai. Good people want him dead.
LFC 07.25.12 at 12:57 pm
Evidence provided through the plea bargain process has always been a complete joke.
Not necessarily in all contexts, ISTM. For ex., an underling in an organized crime ring who was involved in some racket (say, a rigged gambling scheme) might plea to a lesser offense in return for testimony against the boss. If there is reason to think the testimony is credible, this seems ok. Juries in criminal cases are routinely informed, afaik, of plea bargains, b/c defense lawyers can bring it up in cross-examination. That’s not to say plea bargaining is not overused; it may well be. And of course it doesn’t excuse the practices discussed in the OP.
LFC 07.25.12 at 2:03 pm
have one in moderation
Barry 07.25.12 at 5:35 pm
MJB: “The fact that they are encouraging people to testify against others sounds horribly similar to the Stalinist purges of the 1930’s”
It’s not that, it’s that ‘encouraging’ likely means ‘sign the accusations or be tortured’.
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