Here is a link (courtesy of Lawfare) to the Hicks case decision from U.S. Court of Military Commissions Review (USCMCR) .  The Feb. 18, 2015 decision (I am a little tardy), after finding that Hicks waiver of appellate review . . . didn’t waive appellate review, set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).  If you’ll recall, here (Lawfare), Al Bahlul found that (as summarized by Judge Kavanaugh):

A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

Since Hicks has long since been released from Gitmo, this doesn’t do much for him.  His defense counsel should get an astro-turf rug in front of his door (sorry, bad Code 45 tradition). WSJ coverage here.

7 Responses to “CMCR Throws Out Hicks Conviction”

  1. Charlie Gittins says:

    According to NPR this morning, there have been exactly 6 convictions by Military Commissions since they were established in 2001.   Of those 6 convictions, 3 have been overturned on appeal.  Not a very impressive record.  Seems like a monumental waste of resources where a federal district court or a general court-martial would have worked just fine.  Although this one couldn’t have been saved — ex post facto is ex post facto after all.  And, who were the brilliant TCs and CA (weren’t they both flag officers?) who failed to assure that the waiver of appellate review was received within 10 days, since the accused would be released within 30 days.  That little bit of negligence cost the Government the argument on waiver of appellate review.  But of course, it is a Government screw up, so no one is ever held accountable.    These are not the Droids you seek, move along . . . . .

  2. John O'Connor says:

    I’m particularly fond of footnote 3, which extols the policy reasons for allowing appellate review waivers in PTAs.

  3. Mike "No Man" Navarre says:

    Good to see JOC contributing to an opinion reversing a MC conviction.

  4. Christian Deichert says:

    Completely unrelated, but the EU Court of Justice just ruled against SPC Andre Shepherd, the subject of my grad course paper and MLR article.
     
    http://en.europeonline-magazine.eu/us-deserter-seeking-asylum-in-germany-handed-eu-setback_379714.html?cache=1#commentform
     
    I was kind of hoping we’d get him back when I was at Sill, so I could work his Chapter 10 when he got to the PCF, but alas, I left too soon…

  5. John O'Connor says:

    Navarre, I’m shocked you got past the math problem required to post.
    In point of fact, my article was cited in support of the Government’s position that appellate review waivers are permissible terms in  commission PTAs.

  6. Monday morning QB says:

    The waiver issue aside, this was a no-brainer once DCC said MST and conspiracy are not war crimes that can be tried before a MC.  Once that precedent came down, any case that had one of those as an offense was (and is) living on borrowed time.  I think the Qosi case has this issue as well (he pled in early late 2010/early 2011 I think).  And unfortunately for the government, it doesn’t matter that Congress (not Bush or Obama) gave us the MCA of 2006 that listed all these things as offenses for a MC; the courts have said years later that irrespective of what Congress defined as a war crime that can be tried at MC, the courst will have the last word down the road.  Just the way it is.  And apparently now, it’s a guessing game.    

  7. Mike "No Man" Navarre says:

    I refuse to engage in a battle of wits with an unarmed man.