UPDATED W/TRANSCRIPT: David Hicks took a so-called Alford Plea to get out of Guantanamo, pleading guilty to a single charge, but also allowed to assert his innocence. Such a plea could be offered to Assange.
The Australian media is reporting that a David Hicks-style plea deal with the U.S. is possible for Julian Assange.
Hicks, an Australian citizen, was detained as an alleged terrorist for five years at Guantanamo Bay and in 2007 his release back to Australia was negotiated by the government of Australian Prime Minister John Howard. Hicks was jailed in Australia for an additional seven months.
Hicks took a so-called Alford Plea to get out of Guantanamo, in which he pled guilty to a single charge, but was allowed to assert his innocence at the same time on the grounds that he understood he would not receive a fair trial. Such a plea could be offered to Assange.
This is what the Hicks-style plea deal looked like.
He was filmed him here in 2012 by Cathy Vogan, now executive producer of Consortium News‘ CN Live!, three years before his conviction on the bogus charge was overturned on appeal, leaving him with no criminal record whatsoever.
In 2016 Australia was condemned by the U.N. Human Rights Committee for its treatment of Hicks, issuing the following statement:
“GENEVA (17 February 2016) – Australia violated the rights of former Guantanamo inmate David Hicks by keeping him in jail for several months under a transfer deal agreed with the US authorities, despite the fact that the sentence imposed on the Australian national was the result of a ‘flagrant denial of justice’, UN human rights experts have said. ‘Transfer agreements are important, because they allow prisoners convicted abroad to serve their sentences in their own country. But States should not carry out a sentence if there is ample evidence that the trial clearly violated the defendant’s rights, as was the case with Mr. Hicks,’ said Fabian Salvioli, Chair of the UN Human Rights Committee.”
00:00:00:00 – 00:00:28:20
I’d been in Guantanamo Bay for two years until an actual lawyer rang me for the first time over there in December 2003. And he was a US military Pentagon appointed lawyer, someone that I didn’t choose, and he came to see me just before Christmas of 2003 with a civilian lawyer that was representing me and my family from Adelaide.
00:00:28:22 – 00:01:16:18
Up until then, I had had no contact with any legal representative. No one had ever talked to me, any detainee, about charges or commissions or court. We were just led to believe that we would either be released or we’d die there. In 2004. I was charged. I was one of six detainees out of 800 to be charged. We were charged under new laws, the so-called laws that were created specifically and only for detainees at Guantanamo Bay, under the jurisdiction of a military commission, something else that existed nowhere else except Guantanamo Bay, who were charged with laws that were so-called laws that weren’t recognized by any system or jurisdictional court in the world.
00:01:16:20 – 00:02:03:22
I was charged with: 1/ Attempted murder by an unprivileged belligerent. And what they meant by that is that I was near somebody who attempted to shoot someone in the Northern Alliance, that I was somehow implicated. Under international law, it is not illegal to partake in hostilities. It is what you do in hostilities that makes it a criminal act. And what the Americans were literally saying is that to partake in hostilities, in legitimate self-defense, or even if you were in the vicinity of where self-defense is being employed, that it was actually an illegal act.
00:02:03:24 – 00:02:27:11
This “unprivileged belligerent”, no legal expert had ever come across the term before. Again, it had been designed for Guantanamo Bay. The second charge was conspiracy. There is such a law, but not conspiracy on its own. You’ve got to conspire to actually do something. In this sense, it was just conspiracy. But to do what? It didn’t matter. What done was the charge of conspiracy.
00:02:27:13 – 00:02:55:03
And the third one was aiding the enemy. And what the Americans meant by that – the only person or the only body that can charge someone with aiding the enemy is your own government, because it’s similar to a treason law – so what the Americans are basically saying is because Australia is an ally of America, then all Australians owe an allegiance to America. And to be even remotely hinted in possibly being engaged with US forces I am aiding the enemy.
00:02:55:05 – 00:03:34:15
Or I’ve committed treason against United States because I’m an Australian citizen. I owe them and allegiance, as we all do apparently. Yeah, get angry. It’s true.
So the enemy were then defined as Al Qaeda, were they? Image / text overlay From Alexander Downer October 17, 2012 on the ABC’s Lateline as the former foreign minister “David Hicks was somebody who admitted to providing material support for terrorism and he is clearly somebody who did work with the Taliban and Al Qaeda”.
Or Taliban or foreign volunteer militias and… terrorists. The umbrella was terrorists. With the attempted murder by an unprivileged belligerent, the US government had acknowledged I actually had never fired a shot at anyone or attempted to.
00:03:34:17 – 00:04:01:24
But somehow they still managed to justify the charge anyway. Then, for the first time since I’ve been in Guantanamo Bay, after five and a half years, [Prime Minister] John Howard made a public announcement that if I was not charged for a second time by February of 2007, he was going to officially request my repatriation. He’d never, ever done that before, and I believe I received that news from memory in January.
00:04:02:01 – 00:04:44:05
So there was like a month. Yes. George Bush and Congress had passed the 2006 Military Commissions Act some months before, but no one had been charged, and I could not possibly imagine them charging me in a month because things moved so slowly there. I thought that was it. John Howard is only saying that in preparation, knowing I was going home and I fully believed for the first time I was going home. One day, the medics… I was having stomach problems at the time and I was taking daily medication for stomach pains and it was about 4:00 in the afternoon and medics came every day.
00:04:44:07 – 00:05:07:18
But on one day at around this time, the medics gave me a liquid. They offered me a bottle of liquid for my stomach. And I said, “But what’s this? I usually take a tablet”. They said, “It’s called a GI cocktail. Take it. It will be good for your stomach”. So I drank it and within 10 minutes I was so tired I couldn’t keep my eyes open, and I basically passed out on the bed.
00:05:07:20 – 00:05:27:18
Then only maybe a few minutes passed and I was woken by a loud banging on my door and through the slit through the window you could see through, I saw a really large crowd outside the door. So I managed to sort of half get up, very, very, very groggy. So I knew I had been drugged with that liquid. And they said, “We’re here to formally charge you”.
00:05:27:21 – 00:05:55:15
“Do you want us to do it here or do you want to go to a private room?” So I managed to say: “No no, let’s go to a private room”. And then these two guys in civilian clothes read me two new charges. This time around, one was attempted murder based on my apparently being in a war zone and in close proximity to other people who were aiming small arms fire at the Northern Alliance, like a guilt by association type of thing.
00:05:55:17 – 00:06:20:14
And the second one was material support for terrorism, though it didn’t state how I’d ever supported terrorism. Nevertheless, those were the two charges. And after having those two charges read to me, I was taken back to my room and then I slept really heavily for a long time after. A few days later, my military lawyer came to confirm: “Yes you’ve been charged”.
00:06:20:16 – 00:06:46:05
And it was at that point that I thought, now I’m committing suicide, because he didn’t believe that the US was going to go through the military commissions. My lawyers, they thought… it seemed… because the five year anniversary for Guantanamo had just happened and it seemed to be that every time there was a large public outcry about Guantanamo Bay, the US government responded in return, and there was no better way by doing so by charging someone.
00:06:46:05 – 00:07:06:12
And saying, “Look at the type of people”, or supposedly, “Don’t forget the type of evil terrorist we have here”. You know, “Why are you supporting them?” And yet, when it came to the crunch to test these allegations, they never went ahead with that. But it didn’t matter, because they achieved their goals, of the propaganda, of just merely charging us and going on about it in the media.
00:07:06:14 – 00:07:27:04
So my lawyers thought, we’re looking at another three years. We’ll have to go to the federal court, appeals court and Supreme Court. Another three years. And I thought: that’s it. Text Panel David Hicks decides to commit suicide. He requests that his father be asked to visit, so that he can say goodbye, but “without giving the game away”. He is about to issue the “cryptic” message…
00:07:27:06 – 00:07:47:04
All of a sudden, my lawyers came running into the room really excitedly while I was speaking my father, and then put a piece of paper in my face. And it was, if I said guilty to material aid for terrorism, I would have to stay in Guantanamo no more later than 60 days, and then I can be released back to Australia.
00:07:47:06 – 00:08:12:03
However, I would have to serve a further seven months in the Australian prison. That is, I would have to remain in prison till after the 2007 elections, and then I could be released. You know, I wasn’t keen on this at first. You know, to say guilty to an offense you haven’t committed; to say guilty to a terrorism offense; that’s a big deal.
00:08:14:02 – 00:08:43:13
And, you know, as desperate, as desperate as I was, you know, I’m just not going to… you know, in my cell, in my room alone, I may have said “I’ll say guilty to anything, I don’t give a shit”. You know, “I did September 11th!” – you might have to cut that out – but, “I’ll do it”. But when it comes to the crunch you don’t jump to these things so quickly. But it was hard, because for the first time in five and a half years, someone’s actually said to me, “You’ve only got 60 days to do mate and you’re gone”, and that’s never happened.
00:08:43:13 – 00:09:05:03
And I knew that this was serious, that it wasn’t a joke, that it could happen, and that if I didn’t take it, I’d have to kill myself because I’d be there for years going through the court system again. And, you know, it was a real struggle. And I asked to speak with with my father and my sister alone without lawyers.
00:09:05:05 – 00:09:24:16
You know, I said to her, look, you know, because they wanted to, they supported me in whatever I wanted to do, but they just wanted to get me out of there. They were concerned for my health and what not. But I said, offering support to terrorism, the Australian media, they’ll never forget this. It will be a stigma that will be attached to me forever.
00:09:24:18 – 00:09:52:21
You know, it’s not an easy thing done. And they… you know, when I looked into my father’s eyes, after everything he’d done. I just can’t go and kill myself maybe. So we called the lawyers back in and I said, “Alright, I’ll do it”. But it wasn’t as simple as that though. For example, I thought I just had go – because I only had to say guilty to material support to terrorism anyway.
00:09:52:23 – 00:10:15:21
If I had to throw that murder thing in there, I wouldn’t have done it. But what’s material support for terrorism? I’ll just say guilty, just to get out of it. However, I went into the commission room that day and I said, guilty. And then I found out that I had to go back and say guilty to all these detailed allegations.
00:10:15:24 – 00:10:36:00
I didn’t know about that. And that was a real struggle because what I really wanted to do while the world’s media was at the military commission, was to yell out all the shit that they’d been doing to me all this time, and how much I wanted a fair chance in a real court, and all the disadvantages against me., stuff about day to day survival.
00:10:36:02 – 00:11:02:04
I’m not in any frame of mind to defend myself. I’m too busy trying to survive them. But instead I stood there and said, “Yes sir, yes sir, yes, sir”, and a few times I found it hard to say that, and I was just going to get angry and, you know, say, “Fuck you” and starting on about all the torture and stuff. But you know, it’s just that fear thing, it’s the interrogators.
00:11:02:04 – 00:11:29:14
It’s just torture. I just went ahead and kept saying, “Yes, sir”. And then it was all over., and David was the guilty terrorist. And I’m sitting back in my Guantanamo cell, doing my last 60 days. And then I got paranoid. They’d come up with some excuse and I’d be stuck there anyway and I wouldn’t come back to Australia and then I’ll be stuck with the stigma of guilty and then the support wouldn’t be as strong and all these, you know, that messed with my head.
00:11:29:16 – 00:11:55:24
And then came the last day or the 58th day, and my lawyer came to let me know: “Right, you’re going tomorrow”. But the Australian consular official came with him and he came with a document, and it was a mirror image basically of what I’ve signed and it was saying that I had entered into this agreement with my full capacity and I knew what I was doing, and I’m happy with the advice, and frame of mind and all this type of thing.
00:11:55:24 – 00:12:16:08
I wasn’t forced or coerced or duressed into it and all this stuff. And I said, “I’m not signing that. I’ve just done that already twice. I’m not doing it a third time. I’m not doing it with you. That sounds official”. And my military lawyer, US lawyer said: “If you don’t do this…”. No, sorry. The consular official said if I don’t sign that, Australia will not take me and I will stay there.
00:12:16:08 – 00:12:38:12
And I looked at my military US lawyer and he said, “That’s true. If you don’t sign this as well, you’re not going home”. Even after doing everything required of me. So I had to sign that fucking form as well. And then the next night I was released. When the deal for release in 60 days was first offered, as I explained, I didn’t say yes straight away.
00:12:38:18 – 00:12:53:03
I did ask the lawyer to try and get the time served, or to try and get a better deal, because I didn’t want to continue. I wanted to leave. If I’m going to say something like guilty to terrorism offense, I want to go home straight away. I want to get something out of. I don’t want to keep being in prison in those conditions.
00:12:53:05 – 00:13:13:24
And the lawyers went and talked to the convening authority who was arranging this plea deal, or one of the people involved. And then when they came back, they said, look, they’re not going to budge. They’re really not happy about, you know, you’re the first detainee from here to go for terrorism charges. After all this hype about the worst of the worst and you’re getting seven months, you know what I mean.
00:13:13:24 – 00:13:49:03
It’s like, they’re not really happy but they’re willing to do it, because John Howard wants it over sort of thing. However, I did say the one concession they offered is something called an Alford plea, and it’s not something we have here in Australia, but in the US. From my understanding, the Alford plea basically allowed me to plead not guilty to the allegations, but what I was saying is, due to the rules of the military commissions, the way it was rigged and the way it was impossible to win, I could not within that system.
00:13:49:05 – 00:14:10:12
So it’s allowed me to say guilty without saying I’m guilty of the allegations, something we don’t have here. Maybe it’s hard for Australians to wrap their head around. So I never actually said guilty to the allegation anyway under the meaning or the definition of the Alford plea. So my lawyers thought that was fantastic to get an Alford plea. It didn’t do much for me at the time, to be honest.
00:14:10:12 – 00:14:43:10
But that’s how it turned out. With the plea deal I entered into, there were quite a lot of conditions, not just the fact that I had to plead guilty to a terrorist offense. For example, I had to agree to a one year gag order where I couldn’t disclose any of my experiences whatsoever to anyone, including family and friends. I had to agree to never challenge my conviction at any time.
00:14:43:12 – 00:15:07:00
I had to agree that if I ever left Australian jurisdiction, I could be re-detained by the US military as an enemy combatant that is to be held indefinitely without charge or trial and no recourse or no chance of remedy. I had to agree to hand over any profits that I may make for my story to the Australian Government.
00:15:07:02 – 00:16:06:23
I had to agree to cooperate with Australian and US law officials for the rest of my life. I had to agree that I was never ill treated, tortured or put under duress by any US employees, including their contractors. I also had to say that I voluntarily entered into the plea agreement.
Text Panel 1 In 2015, David Hicks’ conviction for “providing material support for terrorism” was over-turned on the basis of it not being a viable charge at the time, leaving him with no criminal record whatsoever.
Text Panel 2
In 2016 Australia was condemned by the UN Human Rights Committee for its treatment of Hicks, issuing the following statement: GENEVA (17 February 2016) – Australia violated the rights of former Guantanamo inmate David Hicks by keeping him in jail for several months under a transfer deal agreed with the US authorities, despite the fact that the sentence imposed on the Australian national was the result of a “flagrant denial of justice”, UN human rights experts have said. “Transfer agreements are important, because they allow prisoners convicted abroad to serve their sentences in their own country. But States should not carry out a sentence if there is ample evidence that the trial clearly violated the defendant’s rights, as was the case with Mr. Hicks,” said Fabian Salvioli, Chair of the UN Human Rights Committee.