Aus­tralian’s Plea Deal Was Ne­go­ti­ated With­out Prose­cu­tors

The Washington Post Sunday - - National News - By Josh White

GUAN­TANAMO BAY, Cuba, March 31 — The plea deal that al­lows Aus­tralian David M. Hicks to leave the de­ten­tion fa­cil­ity here with a nine-month sen­tence was ne­go­ti­ated be­tween de­fense at­tor­neys and the con­ven­ing author­ity for mil­i­tary com­mis­sions with­out the knowl­edge of prose­cu­tors, lawyers from both sides said.

The deal shows that the po­lit­i­cally ap­pointed author­ity has the power to per­son­ally de­cide the fate of Amer­ica’s most no­to­ri­ous ter­ror­ism sus­pects.

Marine Maj. Michael “Dan” Mori, rep­re­sent­ing Hicks, took his plea ne­go­ti­a­tions to Susan J. Craw­ford, the top mil­i­tary com­mis­sion of­fi­cial, rather than deal­ing with prose­cu­tors who were seek­ing a lengthy penalty, ac­cord­ing to both sides in the case. In what be­came a highly politi­cized sit­u­a­tion in­volv­ing the Aus­tralian gov­ern­ment, Craw­ford al­lowed Hicks a short sen­tence in ex­change for a year­long gag or­der, a guar­an­tee that he will not al­lege il­le­gal treat­ment at the hands of his U.S. cap­tors, and a waiver of any right to ap­peal or sue.

Though Aus­tralian of­fi­cials have said they were not di­rectly in­volved in plea ne­go­ti­a­tions, Mori de­clined to an­swer ques­tions about what, if any, in­flu­ence they had. Aus­tralian Prime Min­is­ter John Howard, up for re­elec­tion this year, has been un­der pub­lic pres­sure to bring Hicks home. He turned to Vice Pres­i­dent Cheney to im­plore that the case be re­solved. Craw­ford was the De­fense De­part­ment’s in­spec­tor gen­eral from 1989 to 1991, when Cheney was de­fense sec­re­tary.

“What an amaz­ing co­in­ci­dence that, with an elec­tion in Aus­tralia by the end of the year, he gets nine months and he is gagged for 12 months from talk­ing about it,” said Aus­tralian lawyer Lex Lasry, who was in Cuba to mon­i­tor the case over the past week.

Aus­tralia’s for­eign min­is­ter, Alexan­der Downer, told re­porters in Aus­tralia on Fri­day night that there were ini­tial plea dis­cus­sions about Hicks’s case two years ago and that the ne­go­ti­a­tions picked up speed re­cently. But, he said, “th­ese are not de­ci­sions of the Aus­tralian gov­ern­ment.”

As the deal de­vel­oped in re­cent weeks, Air Force Col. Mor­ris Davis, the lead pros­e­cu­tor for mil­i­tary com­mis­sions, and his team on the Hicks case were not in the loop. Davis said he learned about the plea agree­ment Mon­day morn­ing when the plea pa­pers were pre­sented to him, and he said the pros­e­cu­tion team was un­aware that dis­cus­sions had been tak­ing place.

“We got it be­fore lunchtime, be­fore the first ses­sion,” Davis said at a news con­fer­ence Fri­day night. In an in­ter­view later, he said the ap­proved sen­tence of nine months shocked him. “I wasn’t con­sid­er­ing any­thing that didn’t have two dig­its,” he said, re­fer­ring to a sen­tence of at least 10 years.

Army Maj. Beth Kubala, a spokes­woman for the Pen­tagon’s Of­fice of Mil­i­tary Com­mis­sions, said Craw­ford has the author­ity to ap­prove plea deals and can use her dis­cre­tion.

“Like it or not, the de­tainees at Guan­tanamo are from dif­fer­ent coun­tries, and that some­times is a fac­tor,” Kubala said.

Davis said he could have cho­sen not to sign the pa­pers but it would have been just a sym­bolic move. He said that he hopes the case does not set a prece­dent but that it is pos­si­ble that other plea deals could come in the 75 or so other detainee cases his of­fice is con­sid­er­ing for trial.

Marine Lt. Col. Kevin Chenail, who pros­e­cuted the case with Navy Lt. Brian Weinthal, said he was pleased with the out­come of the case be­cause the jury panel agreed to the max­i­mum pun­ish­ment avail­able to them un­der the deal — seven years — with very lit­tle ev­i­dence be­fore them. Craw­ford’s deal over­rides that term, re­duc­ing it to nine months. Chenail said he thought he could have got­ten a sen­tence of decades. Prose­cu­tors had pre­pared for as many as 30 wit­nesses at trial and wanted to press for­ward with a case that Chenail called “ex­tremely im­por­tant.”

“Some­times you get too close to a case, but I thought he was one of the most dan­ger­ous peo­ple out there be­cause he was a Westerner who bought into al-Qaeda,” Chenail said of Hicks. “He’s the kind of per­son who could use that to his ad­van­tage to in­fil­trate and earn peo­ple’s trust.”

Mori scored a ma­jor vic­tory with the deal and said he’s not sure Hicks has fully grasped it yet.

“I don’t think David will be able to show any real emo­tion un­til he gets off the plane in Aus­tralia,” Mo- ri said. “David has some cer­tainty now.”

The plea agree­ment also set up what turned out to be ir­rel­e­vant the­atrics in the court­room on Mon­day af­ter­noon, when Hicks’s two civil­ian at­tor­neys chal­lenged mil­i­tary com­mis­sion rules and the pre­sid­ing of­fi­cer, Col. Ralph H. Kohlmann, re­moved them from the case. They each dra­mat­i­cally stormed out of the court­room, leav­ing Hicks to give what ap­peared to be scripted an­swers about “los­ing” his at­tor­neys and want­ing fair­ness. Joshua Dra­tel, one of Hicks’s at­tor­neys who left, had signed the plea agree­ment and its spe­cific pa­ram­e­ters ear­lier in the day.

Mori said Kohlmann did not know that the plea agree­ment had been struck un­til af­ter the first ses­sion on Mon­day, but Hicks did, as did the de­fense at­tor­neys and prose­cu­tors. Kohlmann, af­ter be­ing pre­sented with the doc­u­ments later in the day, called a sur­prise ses­sion Mon­day night to an­nounce the guilty plea.

FAM­ILY PHOTO

Un­der a deal with the com­mis­sion’s con­ven­ing author­ity, David M. Hicks will be free in nine months.

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