With David Hicks in his fifth year of incarceration in Guantanamo Bay without trial, his lawyer Major Michael Mori told Sydney lawyers of the US and Australia’s collective shame. Alex Boxsell reports.
WHEN MAJOR Michael Mori finished his presentation to the crowded Selbourne Chambers he was met with a lengthy and appreciative standing ovation.
Upon taking the stage to extend his vote of thanks to the Marine, junior vice president of the New South Wales Law Society, Hugh Macken, quipped that he expected to find the lectern awash with underwear. Considering the ease with which the US lawyer’s charm infected the audience, it was easy to see why.
But beneath Mori’s pleasant demeanour lies a fierce determination to put an end to the farcical situation Hicks finds himself in. As he told his audience, Mori is not necessarily concerned whether Hicks is jailed for his actions. All he wants is for his client to be given the opportunity to answer his case before an unbiased and properly constituted legal system.
Macken recognised this too when he said Mori had “displayed honour in the ethical and moral stance [he has] taken in respect to principles of fairness which David Hicks ought to be accorded”.
Mori’s address coincided with renewed interest in Hicks’s case from the federal Attorney-General Philip Ruddock, who suggested a resolution could be found by November, only to qualify this later. “Look, if it became clear that the United States was not proceeding with the charges against him, we would seek his return. That’s what we did with [Mamdouh] Habib,” Ruddock told ABC radio last week.
Ruddock also suggested any further delay would be the fault of Hicks’s lawyers for “dragging out” the case by lodging objections to the commission system. Law Council of Australia president Tim Bugg refuted the idea that Mori could in any way be guilty of keeping Hicks in Guantanamo Bay.
“The blame should be laid squarely at the feet of politicians. Both US and Australian politics have unjustifiably prolonged Hicks’s detention and, notwithstanding two US Supreme Court decisions in his favour, he is no closer to trial,” Bugg said.
The Treasurer weighed in to the argument with a stronger sentiment. “Here’s what I think should happen: the US should, as a matter of priority and as fast as possible, put in place a trial which is consistent with the US Supreme Court system and have those charges heard,” he said.
Yet are we to believe the government is really serious about influencing the US in Hicks’s regard when it has supported the military commission system for the entirety of his four and a half year imprisonment? In response to Ruddock’s comments, Shadow Attorney-General Nicola Rixon said “the least the Australian Government can do is commit to a concrete timeframe”.
Mori certainly had his doubts that this would happen when he spoke in Selbourne Chambers. “I have two to one odds he is not home by Christmas,” he said.
Irrespective of the latest politicking by Australian politicians, Mori made it clear that the charges levelled against Hicks were baseless, given that “there really are no offences that [Hicks] committed under the law of war”. As far as the Major’s investigations have uncovered, Hicks is not actually accused of harming any person — in fact, none of the detainees have been thus accused, save for Omar Khadr, a Canadian citizen, who at the age of 15 allegedly killed a US soldier with a grenade after being shot.
The subsequent labelling in the press of Hicks and other detainees as ‘the worst of the worst’ has proved to have a powerfully negative impact on Mori’s efforts to demand proper justice for his client. Although the general public’s awareness of the inequality of the military commission is gradually increasing, Mori said it was difficult to erase the memory of such an effective and highly misleading propaganda campaign.
To that end it was particularly wise that the US ensured none of its own went to Guantanamo Bay. “The smartest thing the US did was not put their citizens in there, to keep the US interest out,” Mori said.
Still, the biggest problem for Mori — and for Hicks — is that the US administration simply can’t afford to back down. “They need concrete results to prove what they did was right,” Mori said. It isn’t an option for Hicks to be found not guilty, Mori said, which is exactly why the US is reluctant to give the Australian his day in court. “The US doesn’t care how long litigation takes,” he said.
Although there is now limited dissent in Congress, where legislation for the new military commission is currently being discussed, the majority view amongst congressmen is that no matter the system, Hicks must be convicted, Mori said.
The military commission system was the administration’s attempt to achieve guaranteed results without risking judicial scrutiny in the form of a properly constituted court or court martial, Mori said. But after Hamdenv Rumsfield, and mounting international criticism, it seems unlikely any military commission can deliver justice. Still the Australian Government continues to extend its full support.
It would be easy to think the dubious commission system existed solely to appease domestic policy. When asked, Mori said that he doesn’t “believe in conspiracy from the [US] government unless you first rule out incompetence”.
Perhaps arrogance should share the burden of blame also. “The civilian leadership thought they had a very controlled system, and that I wouldn’t buck the system,” Mori said. When he spoke out about the latent inequalities in the military commission in January 2004, Mori was subjected to an investigation, which very quickly died. Therein lies the basis of the Major’s charm and confidence; he knows he has the law on his side and that the administration can ill-afford to become mired in an argument over its application.
Asked whether Mori — a self-confessed novice in the law of war when he was selected to defend Hicks — considered his appointment suspicious, he said “the administration could have had lawyers with advanced degrees in the law of war — [so] was it designed that way? I’m not going to speculate”.
The charges against Hicks include conspiracy, attempted murder by an unprivileged belligerent and aiding the enemy. Mori explained how difficult it was to structure a defence around phrases that were not defined in any substantial way in literature or legislation. The phrase ‘enemy combatant’ itself was not added to the military dictionary until 2004, well after it had become part of the media’s lexicon.
Mori said there was a “factual hypocrisy in how the US engaged in the conflict”. The notion that attacking a soldier who was invading your country could be illegal carries with it obvious deficiencies. “It is not a crime to be on the other side,” he said.
Trying to sidestep the problem by differentiating ‘unprivileged belligerents’ from US soldiers on the basis that the former wears no national uniform is ludicrous, he said. The Northern Alliance and US Special Forces regularly dressed out of uniform during the conflict in Afghanistan, while CIA operatives called in air strikes from the ground in their casual hiking clothes, Mori said.
Many of the crimes housed within the law of war are based on the status of the ‘thing’ being attacked, be it a hospital, school, civilian or prisoner of war, Mori said. By establishing new charges to be tried by military commission, the administration was particularly clever in transferring the onus of the crime to the active participant, the Major said.
Mori is not an advocate of the choices Hicks made in his life, but he acknowledges that for the ‘crimes’ he is accused of, his four and half year sentence is more than adequate, especially considering that Hicks spent a 16-month period in solitary confinement, eight months of which was without natural sunlight. Although this changed after a lengthy appeal by Mori, Hicks finds himself back in solitary confinement today, a practice the Australian Government has no qualms with, Mori said.
A member of the crowd asked what could be done by the Australian legal profession while the government refuses to condemn the military commission system. Mori suggested registering at GetUp: Action for Australia ( www.getup.org.au) or writing directly to the US legislators who are currently considering the form of the next military commission. What is important, in the face of inaction by its Government, is for the Australian legal community to send the message to those in power in the US that “we are watching you,” Mori said.