Australian Detainee Heads Toward Sentencing in Guantanamo

By Sgt. Sara Wood, USA
American Forces Press Service

March 28, 2007 – Australian detainee David Hicks, who entered a guilty plea March 26 to a charge of material support for terrorism, is expected to be sentenced by the end of the week, military officials said. Officials today released information about how the military commission will move forward with sentencing, a process that has not been tried either in the previous round of military commissions last year or under the Military Commissions Act of 2006, established after the Supreme Court struck down the first commissions process as unconstitutional.

Before the military commission members can be assembled and proceed with sentencing, the military judge has to verify the validity of Hicks' guilty plea, Army Maj. Beth Kubala of the Office of Military Commissions told reporters. This will be done in a hearing session where the judge will question Hicks to determine if his plea is voluntary and based on facts. The military judge, Marine Col. Ralph Kohlmann, already has ordered the prosecution and defense teams to agree on the facts that make up the offense.

Kohlmann ordered this collaboration March 26 in an unexpected late-night court session where Hicks pleaded guilty to providing support to a terrorist organization, but not to a terrorist act. Kohlmann has not announced the court schedule, but Kubala and members of the prosecution and defense said they expect the sentencing to be completed this week.

Under the Military Commissions Act, after the judge accepts the accused's guilty plea, military commission members must determine the sentence. Commission members are active-duty military officers selected by the convening authority. The 10 commission members for Hicks' case already have been selected and include officers from all four services, Kubala said. Only five of these commission members have to be present to pass a sentence.

Once the commission members arrive here for proceedings, they will be subject to "voir dire," a legal process in which attorneys from both sides and the military judge question the members to determine their impartiality. Once voir dire is complete, sentencing proceedings will begin. The prosecution and defense make arguments and present information, and the accused has the right to testify or make an unsworn statement.

After commission members have deliberated on the evidence and instructions, they begin the process of arriving at a sentence. Any member who chooses to can write down a complete sentence, and these proposals are arranged by the junior member in order of severity and then voted on, beginning with the least severe sentence. As soon as a sentence gets the required number of votes, the process stops and the sentence has been determined. More severe sentences are not voted on.

If the sentence includes confinement of more than 10 years, three-quarters of the members must vote for the sentence, but if the sentence includes confinement of 10 years or less, two-thirds of the members must concur.

Air Force Col. Morris Davis, chief prosecutor for the Office of Military Commissions, has said repeatedly he will not seek a life sentence for Hicks, even though that is the maximum penalty for his charge. Under a diplomatic agreement between the United States and Australia, Hicks will return to Australia to serve any prison sentence.

Hicks, 31, is the first detainee to be charged under the Military Commissions Act of 2006. According to documents released by the Defense Department, Hicks, who was born in Adelaide, Australia, was a member of two terrorist organizations in Albania and Pakistan in 1999. In 2001, Hicks traveled to Afghanistan and attended al Qaeda training camps.

After the terrorist attacks of Sept. 11, 2001, Hicks is alleged to have joined al Qaeda forces at Kandahar Airport. After a few weeks at the airport, Hicks traveled to the front lines in Konduz, Afghanistan, to fight coalition forces. Northern Alliance forces captured him in December 2001 while attempting to flee to Pakistan.

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