David Kurtz

David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.

Articles by David

We learn more of the sordid details of the plea agreement of Australian David Hicks, whose five-year detention by the U.S., mostly at Guantanamo Bay among the purportedly most dangerous of the dangerous, ended in a nine-month prison sentence.

The plea agreement, which includes a one-year gag order on Hicks, was not negotiated by the military tribunal's prosecutors but by the official overseeing the tribunals, reports the Post this morning. In fact, the agreement was reached without the knowledge of the prosecutors, who favored a much stiffer penalty.

Australians have long suspected that the political fortunes of Prime Minister John Howard, who is up for re-election this year, would have some bearing on Hicks' fate. The circumstances of the plea agreement further cement that notion:

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 year-long 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.

Could the outcome of the Hicks case be any less legitimate?

On the one hand, you have Hicks being held for five years without trial amidst allegations of torture and other mistreatment, fighting simply to get a fair hearing. His case has become an internationally known example of the Bush Administration's blatant disregard for basic human rights.

On the other hand, you have the outcome of the case determined not by conventional Anglo-American standards of due process, including evidence presented to an impartial fact-finder, but by the political considerations of the Bush Administration and its ally Howard. Or as a spokesperson for the military commissions candidly told the Post, "Like it or not, the detainees at Guantanamo are from different countries, and that sometimes is a factor."

It's another example of politics trumping the War on Terror when it suits the Bush Administration. While you might feel some relief that there is an end in sight to Hicks' Kafkaesque detention, you can't help but be left with niggling doubts. Was Hicks a true danger? Perhaps not. But prosecutors thought Hicks would have received a decades-long sentence if the case went to trial. Has Hicks been vindicated? Not at all. The able representation of Hicks by Maj. Dan Mori took advantage of the political situation in Australia to win his client's eventual release. Mori knew the game that was being played, and played it.

It is a deeply unsatisfying outcome.

Late update: Here's the Hicks plea agreement. [Thanks to TPM Reader JG for the link.]

Pete Domenici and Heather Wilson, the New Mexico pols whose phone calls to then-U.S. Attorney David Iglesias ultimately lit the fire under Purgegate, have been laying low, but the Post has a nice takeout on how close their political relationship has been from the very beginning and remains to this day. Says Domenici's chief of staff of the role his boss had in first getting Wilson elected to Congress, "It was substantially more than an endorsement." All of which helps explain why Domenici would take such an interest in Wilson's re-election last fall, going so far as to call Iglesias to pressure him to bring corruption indictments against state Democrats before election day.

Jonathan Landay explores the curious case of Amir Mohamed Meshal, a U.S. citizen with alleged, albeit obscure, ties to al Qaeda who fled the fighting in Somalia earlier this year, was detained upon his arrival in Kenya, reportedly with U.S. help, and was subsequently deported to Ethiopia, where he now sits in a secret prison in the custody of Ethiopia's intelligence service, even though the FBI interviewed him twice and declined to pursue charges. Confused? Landay maps out what is known to this point about the status of the 24-year-old from New Jersey.

As anyone who has paid a lick of attention to the U.S. Attorney scandal knows, it is just one example--perhaps the most egregious example--of the Bush Administration's deep and widespread politicization of the Justice Department:

No other administration in contemporary times has had such a clear pattern of filling chief prosecutors' jobs with its own staff members, said experts on U.S. attorney's offices. Those experts said the emphasis in appointments traditionally has been on local roots and deference to home-state senators, whose support has been crucial to win confirmation of the nominees.

The pattern from Bush's second term suggests that the dismissals were half of a two-pronged approach: While getting rid of prosecutors who did not adhere closely to administration priorities, such as rigorous enforcement of immigration violations and GOP allegations of voter fraud, White House and Justice officials also have seeded federal prosecutors' offices with people on whom they can depend to carry out the administration's agenda.

The Bush Administration is ratcheting up the pressure on Syria:

The State Department in recent weeks has issued a series of rhetorical broadsides against Syria, using language harsher than that usually reserved for U.S. adversaries. On Friday, the administration criticized a planned visit there by House Speaker Nancy Pelosi, D-Calif.

"It's the new Cuba - no language is too tough," said one of the officials, who like others insisted on anonymity to discuss internal government planning.

The campaign appears to fly in the face of the recommendations last December of the bipartisan Iraq Study Group, which urged President Bush to engage diplomatically with Syria to stabilize Iraq and address the Arab-Israeli conflict. The White House largely ignored that recommendation, agreeing only to talk with Syria about Iraqi refugees and to attend a Baghdad conference where envoys from Iran and Syria were present.

Some officials who are aware of the campaign say they fear its real aim is to weaken or even overthrow Assad and to ensure that he can't thwart the creation of an international tribunal to investigate the February 2005 assassination of former Lebanese Prime Minister Rafik Hariri. A U.N. report has implicated Syrian and Lebanese officials in the murder.

The officials say the campaign bears the imprint of Elliott Abrams, a conservative White House aide in charge of pushing Bush's global democracy agenda.

Elliott Abrams--with the way Republicans rehabilitate their own, Kyle Sampson will be attorney general in 20 years.

Bud Cummins:

You only get one chance to hold on to your credibility. My team, which holds temporary custody of the Department of Justice, has blown it in this case. The Department of Justice will be paying for it for some time to come. Lots of sound investigations and convictions are now going to be questioned. That is a crying shame, because most of the 110,000 employees to whom the attorney general referred in a recent news conference, are neutral, nonpartisan public servants and do incredible work. A lot of President Bush's political appointees have done a lot of great work, too. Sadly, because of the damage done by this protracted scandal, which the administration has handled poorly at every turn, none of that good work is currently being recognized. And more ominously, the credibility of the Department of Justice may no longer be, either.

The case of Gitmo detainee David Hicks of Australia is a travesty on so many levels, but consider the following terms of his plea bargain:

The deal included a statement by Mr. Hicks that he “has never been illegally treated” while a captive, despite claims of beatings he had made in the past. It also included a promise not to pursue suits over the treatment he received while in detention and “not to communicate in any way with the media” for a year.

Critics said those requirements were a continuation of what they say has been a pattern of illegal detention policies. “It is a modern cutting out of his tongue,” said Michael Ratner, president of the Center for Constitutional Rights, a legal advocacy group, based in New York, that is coordinating the representation of detainees in many suits challenging Guantánamo detention.

What we have here is a plea bargain in which the government leverages its vast control over the life, liberty, and body of the defendant to obtain for itself a release from potential liability for its own conduct and a one-year protection from bad PR. Truth, justice, and the Gitmo way.


Federal prosecutors have told Bernard B. Kerik, whose nomination as homeland security secretary in 2004 ended in scandal, that he is likely to be charged with several felonies, including tax evasion and conspiracy to commit wiretapping.

Kerik's indictment could set the stage for a courtroom battle that would draw attention to Kerik's extensive business and political dealings with former New York mayor Rudolph W. Giuliani, who personally recommended him to President Bush for the Cabinet. Giuliani, the front-runner for the 2008 Republican presidential nomination according to most polls, later called the recommendation a mistake.

Mistakes were made.