It was a day of competing narratives. Who was the real David Hicks? In a jarringly strident sentencing argument in which he advocated the maximum sentence – by agreement, seven years – the military prosecutor intoned that the members of the Military Commission who had been flown in to decide Hicks’s sentence were on the “front line in the Global War on Terrorism” and “were face to face with the enemy – in this courtroom.”

Hicks – to whom the prosecutor repeatedly referred by one of his alleged aliases, Muhammad Dawood – had been a “valuable asset” to Al Qaeda, a western jihadist who could infiltrate western nations and cause great harm. “Muhammad Dawood will always be a threat until he changes his beliefs. How strong are those beliefs? 9/11 is a microcosm of that.”

It was one of several invocations of the 9/11 attacks, though it is undisputed that Hicks had no involvement in, or even prior knowledge of, those attacks. Hicks’s defense counsel Major Dan Mori seized on the disparity between the prosecutor’s rhetoric and the actual offense to which Hicks was pleading guilty. Hicks had never hurt anyone; had never fired a weapon at a U.S. soldier; had never planted a mine. He had been, Mori insisted, a misguided, poorly educated adventurer, who had trained with the Kosovo Liberation Army in Albania, then made a mistake by traveling to Pakistan and joining up with extremists.

But for all the prosecution talk of Hicks’s value to Al Qaeda, he had never been assigned a complex terror mission; rather, he had been placed in a trench. Hicks owed apologies to his family and to the Australian and American people, but he had been cooperative in U.S. custody and had already spent five years and four months in detention at Guantánamo – time for which he could not be given credit under the judge’s instruction. If the Commission wanted Hicks to be punished by seven years’ confinement, it should sentence him to one year and eight months – which would amount, in effect, to the maximum sentence.

Five years after the government had publicly branded Hicks one of the world’s most dangerous terrorists, it was more than a little surprising to hear the parties arguing over whether his sentence should be seven years or 20 months – both within the range of sentences a convicted criminal in U.S. courts might receive for selling drugs. But even that was a show. The prosecution and the defense were both aware that, by prior agreement, all but nine months of Hicks’s sentence would be suspended – so whether the Commission members chose the higher or lower sentence would make absolutely no difference. Hicks would be home soon, and free by the end of the year.

It was a remarkable revelation on a day full of them. Earlier, we had learned the details of Hicks’s guilty plea. Hicks agreed that the facts to which he was pleading could be proven against him beyond a reasonable doubt. It was roughly equivalent to an “Alford plea” under U.S. law, and it allowed Hicks to stipulate to the required facts while not directly confirming their truth. The significance of this maneuver would soon be made clear.

Hicks stipulated that the government could prove that he had traveled to Afghanistan in 2001; had attended various Al Qaeda training camps; had met Bin Laden himself and complained of the lack of training materials in English; had, upon learning of the 9/11 attacks, expressed personal approval; had participated in the Afghan war by joining a contingent of Al Qaeda fighters defending the Kandahar airport; and had ultimately been captured by the Northern Alliance while attempting to flee by taxi to Pakistan.

The judge inquired of Hicks whether he had personally reviewed the government’s evidence in support of those facts. Hicks said he had. What evidence had he seen? Hicks replied that he had seen notes from interrogations of himself and other detainees.

So Hicks’s guilty plea amounted to the following: He agreed that the government, on the basis of evidence obtained from him and other detainees through interrogation, could prove his guilt in the Military Commission system.

In other words, Hicks agreed that the facts necessary to prove his guilt in the Commission could be proven using evidence that might have been beaten out of him and others in U.S. custody.

In a separate provision, Hicks agreed that he had not been “illegally treated” while in U.S. custody, but even those words were carefully chosen. Hicks has previously alleged that he was subjected to brutal physical abuse when he was turned over to U.S. forces in Afghanistan.

But, in the Administration’s view, that treatment would not have been illegal at the time. Thus, in denying that he had been “illegally treated,” Hicks in no way denied that he had been abused and coerced.

Moreover, the plea agreement provided that Hicks would not speak to the media about the circumstances of his capture or detention for a period of one year – a provision plainly intended to prevent Hicks from describing his treatment and allowing the world to decide whether he had been tortured or coerced. The government will be hard-pressed to explain how this gag rule can be squared with the mantra that Military Commission proceedings are fair and “transparent.”

Rather than relate the proceedings that followed – which, after all, were essentially meaningless in light of the previous agreement that Hicks would serve no more than nine months – I’ll recommend a few of the better journalistic accounts, one from the L.A. Times and two in The Washington Post, here and As the Secretary of Defense rightly comprehends, the world will not perceive this system as legitimate – nor should it. Let’s hope that this first Guantánamo prosecution was also the last.

We had expected to depart Guantanamo on Tuesday morning, but David Hicks’s plea and upcoming sentencing hearing have thrown the schedule out the window, and no one seems to know when the proceedings will be completed. Reporters, human rights observers, and even military escorts have been trading rumors and speculation – but, for the time being, the only certainty is that today will be the third consecutive day without any Commission proceedings. So what are we doing?

There have been practical matters to attend to – like a lack of clean clothes and enough books to read – so yesterday we managed to get across the island to the Navy Exchange Store, where I bought socks and t-shirts and $29 Converse kicks. As for books, I nearly got lost in a sea of Danielle Steele and Tim LaHaye, and was on the verge of despair when I spotted, lying on its side, a lone copy of Shalimar the Clown by Salman Rushdie. This place never ceases to amaze.

Apart from our shopping excursion, we’ve been much more restricted than on previous visits. Today, for example, we were forbidden by a Navy public affairs officer from joining a tour of the Northeast Gate – where the base borders Cuba – that was being offered to the media. There’s no legitimate rationale for this – we sleep in the same quarters as the reporters and have hours of unrestricted access to each other daily. (And, from what I’ve seen, most of the reporters here are capable of detecting propaganda without any help from us.)

We’ve also been informed that we’re no longer permitted to eat in certain restaurants here, so there will be no more food blogging. Even without the prohibition, we might have a hard time getting there – for the first time, we don’t have a dedicated vehicle in which our escort can get us places. And today I learned that I’m being evicted from my room and moved into a room with some reporters – because, although we can’t share a tour, evidently we can share a toilet.

The blogosphere lit up early this week in reaction to the New York Times article about the NYPD’s unlawful surveillance of peace groups during the Republican National Convention. The Times neatly summarizes a few, and here a few more:

Our friends at the Working Assets blog Working for Change wrote on the impact of the progressive community.

Freelancer Lindsay Beyerstein has a first-hand account of the NYPD’s treatment of protestors when she participated in a Billionaires for Bush stunt.

The Albany Project addresses the New York Post’s comparison of peaceful protestors to Al-Qaeda.

Carpetbagger on the NYPD’s reasons for sealing documents.

It’s hard to imagine how spying on groups like Bands Against Bush could be justified by the suspicion of criminal activity. We’ve got a real problem when the police department is spying on people for organizing a concert against the Bush administration.

Even as we await proceedings that will likely determine the particulars of David Hicks’s return to Australia, we received the dismal news on Monday night that the United States had transferred a new detainee to Guantanamo. He is, the Pentagon maintains, a "dangerous terror suspect" named Abdul Malik who allegedly tried to shoot down an Israeli airliner and "admitted" involvement in a suicide bombing in Kenya that killed 13 people in 2002.

All of this may or may not be true, but by bringing Mr. Malik to Guantanamo, the United States has virtually ensured that the world will always doubt such claims. Amid high-level Administration debates about the future of Guantanamo, and growing world condemnation of U.S. detention policies, what possible reason could there be for transporting another detainee here? It’s difficult to conclude anything except that the United States lacks the evidence to prosecute Mr. Malik in a U.S. court – or that it has subjected him to treatment that it hopes to keep secret.

In the best of circumstances, it will take many years and much hard work for the United States to restore its credibility as a nation committed to human rights and the rule of law. Each time a detainee is transferred into this legal limbo, we take a huge step backward, and that task becomes all the more difficult.

Sunday’s New York Times article proves what we and other civil rights groups have suspected: the NYPD conducted widespread surveillance and infiltration of groups that planned peaceful, lawful demonstrations in the days leading up to and during the Republican National Convention. With this surveillance, the NYPD may have amassed dossiers on innocent individuals’ activities.

Last month, United States District Court Judge Charles S. Haight Jr. ruled that the NYPD must stop its routine practice of videotaping people at public gatherings or protests unless there is “some indication of unlawful activity on the part of the individual or organization to be investigated.” The issue of police spying on lawful protest activities will be back in court April 10.

It was an extraordinary, though typically chaotic, day at the Guantánamo Military Commissions. David Hicks began the proceedings with three lawyers sitting beside him at counsel table. After a series of dubious rulings by the trial judge, he ended the day with only one. Hours later, he agreed to enter a plea of guilty to a single charge of providing material support to a terrorist organization.

Hicks maintained, under questioning, that his guilty plea was unrelated to the loss of his attorneys, but the facts speak for themselves. Though not overtly coerced, Hicks’s guilty plea was the product of a coercive system. And this outcome will do little to reduce the perception that the United States has created a result-driven system that is incapable of providing fair trials free of controversy.

No Military Commission proceeding would be complete without a dispute about counsel that nearly derails the case. (See here, and here) Monday’s proceedings stuck to the script. The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve “equiality” with the prosecution. But precisely the opposite occurred.

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks’s lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing — but the result was the first empty chair at Hicks’s table.

Next, and far more troubling, the judge stated that Hicks’s civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission’s regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel’s words, “usurping the authority of the Secretary of Defense.” Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. “I find no merit in the claim that this is beyond my authority,” he said. “That’s sometimes what courts do, they find a way to move forward.” Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

“I’m shocked,” said Hicks, “because I’ve just lost another lawyer. Now I’m left with poor Mr. Mori.” (Major Dan Mori is Hicks’s very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks’s clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was “designed to protect the presumption of innocence,” the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

Never mind that the President and former Secretary of Defense had already declared Hicks a guilty terrorist; that the Supreme Court had already once intervened to halt illegal proceedings under which he faced trial; that the events of the morning had left him facing serious charges with only a fraction of his legal team. The true threat to a fair proceeding had been identified, and Hicks was wearing it.

It is against this backdrop that Hicks’s decision to enter a plea of guilty must be understood. It is expected that Hicks’s plea will result in his return to Australia within the next few months. He has been held in Guantánamo for more than five years. By his lawyers’ and family’s account, he has despaired of his chance of receiving a fair trial in this system, and the day’s events hardly could have convinced him otherwise. He does not want to be a symbol of an unjust system. He wants to go home. We’ll learn the details of the plea – and perhaps see Hicks formally sentenced – later this week.

Over the last couple days, several op-eds supporting comprehensive sex education have appeared in papers across the country.

The Citrus County Chronicle discusses a new bill in the Florida Legislature that would require schools to notify parents about the content of sex education classes. The writer calls on lawmakers to “stop putting moral Band-Aids on a crisis that ultimately affects our entire community.” In other words, instead of focusing on parental notice for sex ed classes, lawmakers should turn their attention to the actual content of curricula and ensure that teens learn how to prevent unintended pregnancy and STDs.

A column in the Plainview Daily Herald out of Texas looks at a recent Worth the Wait presentation at Coronado Junior High and Plainview high school. In response to Worth the Wait’s abstinence-only-until-marriage approach, the author asks: “Why can’t we acknowledge reality, put aside the things of yesteryear and adjust to the ever-changing facts and facets of contemporary life?”

In Ohio, where state officials have said that there will be no new applications for federal abstinence-only-until-marriage dollars after the current funding cycle ends on September 30, and the governor’s recent budget stripped $1 million in state aid for abstinence-only-until-marriage programs, an op-ed questions whether it is wise to turn down the money.

Ohio should incorporate an approach that teaches that abstinence is preferable but acknowledges that some teens will choose to be sexually active, and gives them all the information they need to deal with the inherent risks of that choice.

A good idea, however, federal guidelines prohibit abstinence-only-until-marriage programs from providing teens with information on how to use contraception to prevent unintended pregnancy and STDs.

North Carolina’s Creative Loafing has an op-ed criticizing abstinence-only-until-marriage programs in Charlotte-Mecklenburg Schools. The author notes that the local ACLU affiliate recently contacted school officials regarding inaccurate and judgmental teachings in the curricula. And the op-ed coincides with the introduction of a bill in the General Assembly that would support comprehensive sex ed.

Legislation supporting comprehensive sex education was also seen in New York — the Healthy Teens Act would provide funds for schools to teach abstinence and provide information on birth control. And the Real Education About Life (REAL) Act was dropped in the U.S. House of Representatives last week (a version is also in the Senate). REAL would provided states with federal funding for comprehensive sex education including information on contraception.

Today the military tribunals at Guantánamo Bay — which were halted last June by the Supreme Court’s landmark decision in Hamdan v. Rumsfeld — will recommence under flawed new rules authorized by Congress in the disgraceful Military Commissions Act.

Monday’s arraignment of Australian David Hicks may well mark the beginning, after a series of false steps, of a sustained effort to prosecute at least some of the Guantánamo detainees for war crimes. And yet, there’s a definite feeling here that we might instead be involved in a kind of prolonged endgame, and that we’ll never see the dozens of prosecutions that have long been promised by military prosecutors.

That feeling was certainly strengthened by Friday’s New York Times, which revealed in a front-page story that even Secretary of Defense Robert Gates believes that ” legal proceedings at Guantánamo [will] be viewed as illegitimate” by the rest of the world, and that the prison should be shut down as soon as possible.

It is a remarkable development. And while Gates’s view that Guantanamo should be closed earned the headline, even more revealing – and far more damning – was his statement that the United States is “trying to address the problem of how do we reduce the numbers at Guantánamo and then what do you do with the relatively limited number that would be irresponsible to release.” (Emphasis added.)

The plain and undeniable import of those words is that the Secretary of Defense – who oversees detention operations at Guantánamo – does not consider the majority of the detainees here to be a risk to America. We’ve come a long way from the days when Gates’s predecessor cavalierly branded all of the detainees “the most dangerous, best-trained vicious killers on the face of the earth.”

As always, it will not be David Hicks alone who faces trial on Monday, but the Military Commissions themselves. Hicks’s case presents issues that are by now familiar at these tribunals: He has raised disturbing allegations of torture at the hands of his U.S. captors; there are serious questions as to whether the chief military prosecutor committed sanctionable misconduct when he invoked the specter of prosecution against Hicks’s military defense counsel for statements he made about the unfairness of the tribunal system.

And there are geopolitical machinations taking place in the background that are likely to have more impact on Hicks’s fate than these proceedings. Indeed, the Australian Prime Minister has stated publicly that Hicks’s arraignment has been expedited and his charges reduced because of the Prime Minister’s lobbying of Bush Administration officials, and it’s difficult to find anyone here who doesn’t believe that Hicks will be sent back to Australia before his trial is completed.

Even as David Hicks proceeds for the time being through a system whose legitimacy the Secretary of Defense has rightly questioned, hundreds of other men at Guantánamo – men who have never been, and never will be, charged with any crime – await a far more critical judicial determination.

The Supreme Court will soon decide whether (and when) to hear a challenge to the Military Commissions Act, which purported to strip the bedrock right of habeas corpus – the basic right to challenge unlawful detention in court – from all detainees held here. It will be the third time the Court has been called upon to restore the rule of law to a remote prison that was created expressly to escape it. If the Court once again repudiates a detention policy wholly at odds with our values and tradition, it may well strike the final blow against this shameful enterprise that has done more harm to America’s image – and security – than the dangers it was intended to guard against.

– Ben Wizner, Staff Attorney, American Civil Liberties Union

The final day of the Hazleton trial opened with the news that the Hazleton City Council had passed yet another revision of its anti-immigrant ordinance the previous night. As ACLU attorney Vic Walczak said ruefully, “It’s a little difficult when the target keeps moving.”

Vic pressed on, giving his closing statement Thursday morning. He pointed out that Hazleton does not have the financial troubles it claims, and in fact, the influx of immigrants, both legal and illegal, to Hazleton have revitalized the city. In 2000, before the influx, they had a $1.2 million deficit. There is now a surplus. The hospital, allegedly struggling under the burden of providing services to illegal immigrants, managed to turn a $4 million profit last year. And the crime rate, the reason Mayor Barletta says he passed the ordinances in the first place, is per capita lower than it was five years ago. (These figures came directly from charts provided by the city.)

Hazleton’s defense lawyer, Kris Kobach, said in his closing statement that the city did not need scientific evidence of the problems with illegal immigrants, just a rational belief. In this trial, let’s hope that isn’t enough.

Barry’s the head of the ACLU’s Technology and Liberty Project, and yesterday he posted to the Working Assets blog, WorkingForChange.com, about the Great Real ID Rebellion.

Working for Change features progressive news and blog postings from its nonprofit partners, such as Planned Parenthood and Amnesty International, which also receive funds raised through Working Assets products. Look for more posts from the ACLU there soon!