The Australian citizen David Hicks has become the first Guantanamo prisoner to plead guilty under the Military Commissions Act passed last year. Hicks entered the guilty plea Monday as part of a deal with military prosecutors. Hicks has been held at Guantanamo Bay for the past five years. We speak with Michael Ratner, president of the Center for Constitutional Rights. [includes rush transcript]
AMY GOODMAN: The Australian citizen David Hicks has become the first Guantanamo prisoner to plead guilty under the Military Commissions Act passed last year. Hicks entered the guilty plea Monday as part of a deal with military prosecutors. Hicks has been held at Guantanamo Bay for the past five years. The U.S. government had originally accused him of conspiracy to commit murder, conspiracy to engage in acts of terrorism, attempted murder and aiding the enemy, but only ended up charging him with a single crime: providing material support for terrorism. Pentagon officials say Hicks will likely serve his sentence in Australia.
Hicks has said he was sodomized, beaten and subjected to forced injections while in U.S. custody. The military denies the allegations. Hicks appeared in the courtroom wearing khaki prison fatigues and with hair down to his chest—grown, his lawyer said, to pull over his eyes at night to keep out the light and allow him to get to sleep. Before the hearing, Hicks was allowed a two-hour reunion with his father and sister.
As the proceedings got underway, David Hicks was formally charged and initially deferred entering a plea. But later on, his lawyers told the judge he was pleading guilty. This is the chief prosecutor for the tribunals, Air Force Colonel Moe Davis.
COL. MOE DAVIS: The judge went through in great detail getting Mr. Hicks’s consent—understanding and agreement that this was a voluntary decision, that any of the actions that happened earlier in the proceedings did not have an impact, so unless he was lying to the judge, then I have no reason to believe that that was anything less than true. He’ll have to do the same thing again when he discusses his plea in detail with the judge at the next session. I mean, he’s going to have to tell the judge that he’s admitting the facts that he’s guilty of. And it’s a voluntary decision on his part to to that. And if the judge isn’t satisfied that it’s a voluntary decision, then he has a statutory duty not to accept the guilty plea.
AMY GOODMAN: David Hicks’ guilty plea came after a military judge barred two of Hicks’ lawyers from the court proceedings. One of the attorneys had refused to sign a document pledging to follow court rules that hadn’t been defined. Legal observers are criticizing the decision.
Michael Ratner is president of the Center for Constitutional Rights, which has represented dozens of detainees at Guantanamo Bay. He is also co-author of the book, Guantanamo: What the World Should Know. He joins us now in the firehouse studio.
Welcome to Democracy Now!, Michael.
MICHAEL RATNER: Good morning, Amy.
AMY GOODMAN: So David Hicks was your first client at Guantanamo Bay?
MICHAEL RATNER: The first person represented by any organization was David Hicks, who was represented by me and the Center for Constitutional Rights. He went to Guantanamo January 11th, 2002. We read his name in the paper, we called his attorneys in Australia, and we began what was called — we began a petition on his behalf in court to try and get him what we lawyers call the right of habeas corpus, to go into court and say to the government, "Why are you holding me?"
Now, some five years later, we actually never got him that right in the end. You know, twice we won in the Supreme Court. Twice the government — the administration went to Congress and took away that right. And then Hicks, unlike most of the others at Guantanamo — there’s still 385 people there — Hicks and two others have now been charged before this military commission, which was established under the Military Commission Act, after it had been held unconstitutional in a prior case. So we no longer represent Hicks in front of the commission. We did represent him for purposes of trying to get him some fundamental rights early on in Guantanamo.
AMY GOODMAN: Can you explain what happened in this case? Yes, he pled guilty, but who his attorneys were, how two got thrown out?
MICHAEL RATNER: You know, it’s a bit complex, in a way. I mean, Hicks had been charged earlier before a military commission. That military commission was held unconstitutional—illegal, really—in the Supreme Court. Congress then wrote some new rules, which many of us are still very critical of, which allow evidence from coercion and other kinds of illegal evidence, in our view, to be used for the commission. So then he goes down — then he’s in Guantanamo, and they put him up for this new military commission trial. He has one military lawyer, Colonel — I mean, Captain Michael Mori, who is his military lawyer, and had two civilian lawyers, one of them being Josh Dratel.
They go down yesterday, or they’re there yesterday to represent him. Josh Dratel and the other civilian lawyer eventually aren’t allowed to represent Hicks. Josh Dratel said that he was asked to sign a piece of paper adhering to rules, and the rules, in his view, didn’t allow him to have private meetings with his attorney.
AMY GOODMAN: With his client.
MICHAEL RATNER: With his client. So he then refuses to sign the paper. Then, of course, David Hicks is then still represented by Captain Michael Mori and eventually, as you said, pleads guilty to this one count, which people should also understand is very different than he was originally charged with, which included, you know, attempted murder and all these kinds of things.
AMY GOODMAN: Why is that significant, being ultimately only charged with this one count?
MICHAEL RATNER: Well, you know, you could argue that initially in these cases the government originally overcharged him tremendously, that they included things like conspiracy to murder, you know, fighting against the Americans, all these kinds of things. In the end, he pleaded guilty to a—or he pled to a count saying he materially aided a terrorist organization.
I think we have to look at what happened in the context of Guantanamo. I mean, Guantanamo is, in the Center’s view and in many people’s view around the world, is a moral and legal and political outrage. And you have a man there for five years, and the first thing that’s said after he takes this guilty plea is that he’s going to be able to serve his sentence in Australia. So you have to say to yourself, how do you get out of Guantanamo? You get out either becuase your country fights to get you out, which in this case Australia did not put up a very big battle to get David Hicks out. If you look at how the English citizens got treated, they’re back in England. If you look at how the French got treated, they’re back in France. So, everybody — a number of people were critical of the Howard government in Australia for not fighting to get him back.
So Hicks is sitting there saying, "Well, how do I get back?" I mean, that’s my imagination. I’m imagining, and that’s what the lawyers have essentially said. This is a way — this sentence will be served in Australia, is what it appears, and therefore he will get back to Australia. Otherwise, he’s sitting there, conceivably could get a long sentence, whatever he gets, and have to serve it in Guantanamo. So this is a way back to Australia, really, and it’s a way out of Guantanamo, which, as far as I can see right now, most people still don’t have.
AMY GOODMAN: This is from Reuters, his lawyer saying that they couldn’t discuss what prompted David Hicks’ decision until after the agreement is final—his decision to plead guilty. But David McLeod had said on Sunday Hicks was convinced he could not get a fair trial and expected to be convicted even if he defended the charges.
MICHAEL RATNER: Right, I mean, McLeod and others have basically said that this was not going to be a fair process and that he was going to be convicted. So, I mean, you’re looking at one of the factors here, you know, well may have been as going back to Australia. And that’s something he’s wanted for a long time, according to his father.
AMY GOODMAN: What about these charges of David Hicks, that he was sodomized, beaten and subjected to forced injections while in U.S. custody?
MICHAEL RATNER: Well, the lawyers filed a series of affidavits, particularly in his attempt to get British citizenship. His mother was apparently born in England. And as part of that, they filed papers that said that he had been abused, not at Guantanamo, interestingly enough. But after he was picked up in Afghanistan, he was taken to Kandahar. He was taken onto a ship. He was taken off the ship and onto land. And the statements in these affidavits are that he was beaten, he was sodomized, etc. And, of course, apparently, the investigation of those abuse allegations, according to the U.S. government, said that they weren’t proven. It seems, considering the context of what happened to a lot of our other clients at the center, that there seems to be a lot of credibility, in my view, to that kind of charge for what happened to people picked up in Afghanistan and in other places.
AMY GOODMAN: And the fact, Michael Ratner, that his attorneys said that he had grown his hair down to his chest to pull over his eyes at night to keep out the light and allow him to sleep?
MICHAEL RATNER: Well, it tells us something about the conditions at Guantanamo. It tells us about having the light on 24 hours. It tells us about really being kept in an offshore penal colony with what the government asserts are no rights.
AMY GOODMAN: His father, Terry Hicks, who went down there with his stepsister and had a two-hour reunion with David, said that David has not been able to exercise because he’s abused by other prisoners. He said the detainees yell out abuse at him. They say he’s being paid by the CIA, and all this sort of business, to spy on them, that sort of thing. So he’s under quite a bit of stress. He won’t go out because he’s been abused verbally by the rest of the detainees.
MICHAEL RATNER: Right. And his father, I think, goes on to say that David was severely depressed. So you look at this situation, and you have — I mean, again, I’m not his lawyer at this point, I don’t know why he actually entered the plea. But if you look at his situation, where his father says he’s severly depressed, where he’s being abused, where he’s in conditions where — that are Guantanamo, which are essentially abusive conditions, where if he’s convicted he’s going to be spending a long time in Guantanamo, it just seems to be able to drive a situation where you want to get yourself out of Guantanamo really in any way you can.
AMY GOODMAN: We’re talking to Michael Ratner, president for the Center for Constitutional Rights. Michael, the Military Tribunals Act that has allowed this to go forward, where does it go from here? Who is the next to be tried? And what about this prisoner who was just brought in, supposedly from one of these secret CIA prisons overseas?
MICHAEL RATNER: Well, it’s the Military Commission Act, and of course it set up a structure for trying people at Guantanamo. Many human rights people, as well as the center, considers many parts of that commission structure not to be legal. It allows evidence from torture and coercion. It allows hearsay evidence. A number of the charges aren’t charges under military law. So there are challenges going on to that Military Commission Act. And challenges, I think — there’s one right now by Hamdan, who is one of the accused, I think, of being a driver for bin Laden. His case is the one that went to the Supreme Court, which said that they were illegal in the prior incarnation. And the question is whether they say that again after Congress has set up the rules. So these are still going to be challenged.
But one thing I should say is that the military commissions are only a small part of what’s going on in Guantanamo. Today there’s 385 people at Guantanamo. Fourteen are the so-called high-value detainees, and then there’s this 15th person who apparently was brought there. But 385 people, and most of them will never have a chance, if you want to call it that, to ever be tried, because the government asserts they can be held indefinitely, forever, as enemy combatants without any right to habeas corpus. So the governement is focusing us all on military commissions, etc. But while we’re sitting here, there’s some 380 people or more being held in Guantanamo without even the right to have an attorney and go into court, so — in the way that David did. So, we’re talking about a situation that, in my view, is still completely outside of any kind of law.
AMY GOODMAN: What do you make of the secretary of defense, Robert Gates, saying Guantanamo should be closed, and Secretary of State Condoleezza Rice telling reporters she agrees with Bush’s desire to shut down Guantanamo?
MICHAEL RATNER: You know, Bush said this before 2004. Before he went to court in the Supreme Court case and won, he said, "Well, it’s in the courts now. I’ll wait and see what the Supreme Court says and I want to close Guantanamo." That’s almost two-and-a-half years ago, or three years ago, close. So the question is, is he just saying these words, which is what it sounds like to me, for public consumption, to say, "Yeah, I want to close it"? And then is he coupling it with people like our attorney general, who then says, "Well, the reason Guantanamo is still open and people are there is because of what the attorneys are doing"? So, these guys are saying this in a way for public consumption, but they obviously don’t mean it. If Bush wanted to close Guantanamo, he could close it tomorrow.
AMY GOODMAN: How?
MICHAEL RATNER: He could simply bring the people into the United States, or he could bring them in and give people their fundamental right to go to court on a writ of habeas corpus. If he did that, if people got the right to challenge their detention in court, which is what habeas corpus is, if they got that right, I can guarantee you that the majority of people would not be in Guantanamo, would not be in prison. But there’s no reason. I mean, you could run a prison in the United States and give people their constitutional and legal rights.
AMY GOODMAN: And habeas corpus being stripped by the Military Commissions Act, what does that mean? And do you see that changing?
MICHAEL RATNER: You know, when the center first started thes cases, the key to us was the right to go into court and challenge your detention. It’s a right that we think every human being should have. It’s called the right of habeas corpus, or the writ of habeas corpus. Goes back to 1215. Twice in the Supreme Court has said Guantanamo detainees and others have that right. Twice Bush has gone to Congress and stripped that right out of the statute books. And now we’re going to have to really go to the Supreme Court again. In fact, we’re waiting this week to see whether the Supreme Court is willing to take that case. Possibly we’ll hear by Friday whether they’ll take that case, and we can have a hearing again before the end of the year in the Supreme Court. I’m hopeful that the court will restore that right of habeas corpus to people. It’s the right, it’s the distinction between what makes essentially a tyranny vs. a democracy because it tells you whether the government can pick you up and just toss you in a prison.
AMY GOODMAN: Michael Ratner, Alberto Gonzales, the firing of the U.S. attorneys and whether he should resign or be fired?
MICHAEL RATNER: Well, you know, I’ve felt, and I’ve said many times, that Gonzales has his hands deep in the blood of the torture conspiracy and program in this country. And he does. He’s the one that said we shouldn’t have Geneva Conventions apply to people. He’s the one that apparently approved various interrogation techniques. He’s the one that said the president essentially — or approved memos that said he could torture in the name of national security. This is the man that’s attorney general. Yes, they’re getting him for the attorney scandal, the prosecutor scandal. But this guy is deeply involved in much deeper violations of fundamental rights in this country. He should not just be resigning there. You know, we’ve tried to actually get him criminally investigated in Germany, in the Rumsfeld case. That’s what should be happening to someone like him. He should be held accountable for his deep role in the torture program in the United States.
AMY GOODMAN: And finally, the Center for Constitutional Rights lawsuit against Rumsfeld, the complaint you brought in Germany, has just added two more detainees part of the lawsuit?
MICHAEL RATNER: Well, no, the two additional detainees, I don’t think are part of our Rumsfeld case right now. Those are people we are now suing civilly on behalf of, against Rumsfeld and others, in the United States for damages for what happened to them at Guantanamo. So there’s these civil suits in the U.S., but there this attempted criminal investigation we’re trying to do against Rumsfeld, Gonzales and the other people who were the authors of the torture program in the United States.
AMY GOODMAN: Among them General Geoffrey Miller who was the commander at Guantanamo?
MICHAEL RATNER: I mean, Geoffrey Miller is essentially the link. He’s the one who, after the Guantanamo interrogation techniques were authorized by Rumsfeld, he implemented them at Guantanamo and then, quote, "they somehow migrated to Abu Ghraib and the prisons in Iraq." And, of course, how did they migrate? They migrated in the person of General Geoffrey Miller, who was sent to Iraq to actually "Gitmo-ize" the interrogation prison facilities in Iraq . And that’s what led to Abu Ghraib. I mean, it’s a line you can follow from one to two to three to four. It’s just that the American people haven’t been informed that that line goes from the very top chain of command from Afghanistan to Guantanamo to Iraq.
AMY GOODMAN: Michael Ratner, thanks so much for joining us, president of the Center for Constitutional Rights. This is Democracy Now!, democracynow.org, The War and Peace Report. We’ll be back in a minute.