Undue process: In the Company of Cowards by Michael Mori

Two lessons may be learned from American military lawyer Michael Mori’s account of his defence of David Hicks. Neither of the lessons is new, but each requires constant reaffirmation. The first is that power corrupts. Despite its high-flown rhetoric about freedom and the ideals of the Founding Fathers, the United States refuses to join some of the most potentially powerful international instruments of justice, including the International Criminal Court. Recent US governments have invented laws, and even legal language, in order to bypass long-standing traditions, such as the separation of powers, due process, and procedures for courts-martial. They have ignored international covenants such as the Geneva Conventions and the UN Convention against Torture.

The second lesson is that in contemporary liberal democracies, things are rarely done because they have intrinsic organisational or ethical merit. Rather, it is strategic usefulness that rules. As media cycles shorten and big business increasingly dominates the political agenda, the ethic of self-discipline has eroded. Western democracies – most notably the English-speaking ones – are beginning to abandon the assumptions and values, the long-range planning and institution building that made them great. Australia, for example, mostly a nation of immigrants who arrived in the past 200 years, to the very great cost of the original inhabitants, is now flagrantly ignoring provisions of the 1951 Refugee Convention, to which it is a signatory – a Convention that was designed after World War Two to deal with the millions of displaced persons in a way that was fairer and more enforceable than the worse-than-useless Minorities Treaties created after World War One.

We are also watching as freedoms that date back centuries – Magna Carta was issued just six months shy of 800 years ago – are being eroded in the name of fighting terrorism. ‘They hate us for our freedoms’ is the watchword of politicians who are working to compromise those freedoms. The best interpretation is that they are not up to the political challenges of our times; the worst is that they are deliberately ramping up fear in order to aggregate the power to implement their ideological agenda. The very foundations of liberal democracy – liberty and the rule of law – are weakening. Our leaders no longer materially subscribe to them; they use them as rhetorical tools.

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Michael Mori was a young lawyer and a career marine in early 2003, when the Bush administration, already at war in Afghanistan, was building its case for invading Iraq. He was cooling his heels in Hawaii, working at the US Attorney’s office in Honolulu and hoping for deployment to a combat zone – the raison d’être of the military, as he points out – when a senior officer received an interesting email. It asked for nominations for defence lawyers to work in the new Military Commissions. She suggested to Mori that he apply.

Other than the few details he had heard in the news, Mori knew little about the courts, which were so newly constituted they had not yet passed judicial or Congressional scrutiny. What he had heard sounded dodgy. Enemy fighters captured in Afghanistan were not to be called ‘prisoners of war’, for example, but rather ‘unlawful enemy combatants’ or ‘illegal combatants’. His lawyer’s ears pricked up. His legal training had taught him there were three types of captives in war: enemy prisoners of war (POWs); ‘retained persons’, such as enemy doctors or chaplains; and civilian internees. POWs included members of national armed forces, militias and volunteers serving with them, other militia answering certain criteria, including the wearing of identifiable insignia, and inhabitants of a country who take up arms against an invading force.

International law since the mid-nineteenth century had required that all these categories be treated humanely, according to very specific procedures. Treaties were formalised again after the horrors of World War Two. In US law, POWs were entitled to the same protections expected for captured American military personnel. The new terms did not fit any of these definitions. ‘In retrospect,’ Mori writes, ‘it would become obvious that this was the administration’s foundation for ignoring the Geneva Conventions.’ The US was involved in writing the 1949 Geneva Convention, motivated by outrages committed by their German and Japanese enemies. That soldiers need only give name, rank and serial number is one of its provisions; that they cannot be tortured for information is another. Now, it seemed, the US was determined to use ‘every tool and weapon available’, in the words of White House counsel Alberto Gonzales, to win the new war.

Mori joined the defence team on a ‘Why not?’ basis. He admits he was politically apathetic in those days and had not really taken in his government’s rhetoric:

President Bush might have labelled them as terrorists and ‘the worst of the worst’, but that had no impact on me. I loved the law, and wholly believed that whoever the defendants were and whatever they had been accused of, they were entitled to proper representation and due process … Due process, the inherent fairness of the system, is what stands between us and authoritarian or corrupt regimes.

By mid-year, he was the Marine Corps’ representative for the defence of detainees at Guantanamo Bay. His education in the purpose and procedures of the new Military Commissions was, he writes, ‘a slowly unfolding puzzlement’. He started out, he says, as a military lawyer looking for a new opportunity. He passed through several stages of questioning and disbelief, and ended at a ‘somewhat jaded disillusionment’. More specifically, he ended by resigning his commission on a matter of principle.

In almost five years in the job, Mori had one task: to get the Australian detainee David Hicks out of imprisonment under conditions that defied not only international law but common decency. Hicks was left for years in solitary confinement, in artificial light that was left on 24 hours a day. He was given inedible food and allowed almost no human contact beyond what his lawyers could provide on brief fly-in-fly-out visits. He was charged with invented crimes, which morphed in front of Mori’s eyes. At a certain point, the US Supreme court declared the Military Commissions themselves unconstitutional. Mori was not fighting within the system; he was fighting against the system, in order to preserve a legal system he had been trained in and still believed in. As things came to a head in 2007, prosecution lawyers would publicly accuse him of treachery. Mori was a lawyer’s lawyer and a marine’s marine: a stickler for legal and bureaucratic procedure and for appropriate clearances up the chain of command. The accusations thrown at him did not stick.

The first thing Mori had to work out was what, exactly, the Military Commissions were. He knew about courts-martial, which had served the military well enough in the past. But the President had decided they were insufficient in the face of heightened levels of ‘danger to the safety of the United States and the nature of international terrorism’. Instead, the Bush administration resurrected the notion of the ‘military tribunal’, which had been created after World War Two to execute summary justice on German war criminals. Unlike civilian criminal courts, these tribunals combined the role of the jury, which decides questions of fact, and the judge, who decides question of law. During the Korean War, the rules applying to tribunals were amplified and codified and became the standard the United Nations would apply to courts-martial.

The Bush administration’s new Commissions were different. They threw out inconvenient rules of due process. Hearsay, for example, became admissible. So did evidence obtained through coercion. As Mori puts it, the new rule for admissibility was whether ‘a reasonable person thought the evidence was relevant, no matter how it had been obtained or how reliable it was’. Another core principle was disposed of: the right of the accused to hear or see all the evidence against him. The Commissions would have the power to exclude the accused if they decided the material should be classified on security grounds. The Commissions were to be used only for non-US citizens. US citizens, even those found to have joined the enemy, would still automatically have their constitutional rights protected in criminal courts or courts-martial.

The Commissions also threw out the convention of appeal, which operates on the assumption that courts, like anything that relies on human reasoning, can make mistakes. There would be no appeal to any court: American, foreign or international. Defendants could apply in an appeal-like process in special circumstances to the Department of Defence and the final arbiter would be the Secretary of Defence or the President. At that time, the Secretary was Donald Rumsfeld, the architect of the Commissions, and the President was George W. Bush, architect of the Afghanistan War and the irrational and ultimately indefensible coming war in Iraq. ‘The sheer audacity of the PMO surprised me, as a lawyer,’ Mori writes:

In a document no more than a couple of pages in length, Bush had thrown out our country’s basic rules and procedures, and empowered Rumsfeld or his successors to be judge, jury, executioner and appellate court.

He began to learn other things. Many of the detainees at Guantanamo had been shipped there after US soldiers on the ground decided they were the ‘worst of the worst’ of the many thousands of combatants who surrendered or changed sides as deals were negotiated between the Taliban and the Northern Alliance. Some were handed over for payment: the US had a cash bounty system running. Some of the men were poor specimens indeed. Mori quotes an army lawyer who said, ‘We had simply gotten the slowest guys on the battlefield.’ Of the roughly 45 000 captured, 770 were sent to Guantanamo Bay.

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Mori does not go deeply into the David Hicks’s motivation for being in Afghanistan –  he has said that that is Hicks’s story. But Hicks clearly wanted to be a soldier. He had tried to join the Australian Army, but was turned down because of his low education level. He was in search of adventure. He had fought for a couple of months with the  Kosovo Liberation Army (KLA) against Serbia. Even his conversion to Islam seems to have been part of a search for purpose.

Mori was allocated to David Hicks’s defence in July 2003. The case was to be the first heard under the new Military Commissions Act. Hicks, who had been fighting with the Taliban, was captured in Afghanistan by the Northern Alliance and handed over to US troops in December 2001. In Guantanamo, he had been held without charge as an ‘unlawful enemy combatant’, a term still without formal legal definition. The Australian media was all over the story, running a picture of Hicks shouldering a rocket-propelled grenade launcher in what was supposed to be Afghanistan. It would eventually come out that the weapon was empty and the picture had been taken while he was training with the KLA in Albania.

Most stunning for Mori was the realisation that the Australian Government had totally washed its hands of Hicks. It was concerned neither for his return – unlike dozens of other countries whose nationals had gone off to join the war, which demanded and got their citizens back – nor that he was being treated properly while in detention. ‘Whether the Geneva Conventions apply to him and the other people detained there is really a matter for the United States,’ said Daryl Williams, Attorney-General in the Howard Government at the time. Williams also provided the media with information about Hicks’s possible involvement in the murder of an American, which later proved to be false.

When Mori first met with prosecution lawyers – who were, against precedent, handling all procedural matters – he had not yet been formally advised of the details of the case. If that was mystifying, the statement Hicks had given to the Naval Criminal Investigative Service was deeply worrying. Mori read and re-read it. Hicks had initialed each paragraph, but it seemed to Mori that the language was too legalistic to be Hicks’s. Typographical errors seemed to have been planted for Hicks to correct, so the document would appear to have been read thoroughly before it was agreed to. Even worse was Mori’s final realisation:

‘Wait a minute,’ I thought. ‘What did he do?’ Most everything in it had already been reported in the media. No matter how many times I read it, I couldn’t figure out what crimes were being confessed to … The thought hit me in a blinding flash: I am getting ripped off.

Mori continues:

During the weeks of research and briefing and preparations, I had seen a great deal that concerned me, but my experience, and my basic belief in my country and the people running it, meant that I maintained the optimistic conviction that the process would be fair and the right people would be detained … But now I was faced with the blunt reality. Hicks had not blown up anything, planted any bomb or even hurt anyone. I wasn’t getting any terrorist, let alone one of the ‘worst of the worst’, one of those responsible for 9/11 … The first Military Commission in sixty years, I thought, and this is the best they can do. I was utterly confused.

It would be four months before Mori was ‘detailed’, or formally given the defence brief, but he started work immediately. He contacted Australia to get an Australian civilian lawyer onto the case. Hicks’s father, Terry, who had been mounting a vigorous media campaign to get his son released, was coming to New York to meet with lawyers from the Centre for Constitutional Rights, who had been challenging Hicks’s imprisonment in the Federal Court. Mori promised to meet them if he was detailed by then – which he wasn’t.

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While he was waiting, Mori had time to ponder the Australian Government’s involvement. Tony Blair, British Prime Minister at the time, had been brusque on behalf of British detainees: ‘Either there will be a proper due process with a Military Commission,’ he told the Americans, ‘or alternatively [detainees] will return to Britain.’ The US agreed to suspend Military Commission proceedings against the nine Britons in custody. Alexander Downer, then Australia’s Foreign Minister, announced that he had been working closely with the British and whatever decisions were made about the British would apply to Australian detainees too.

It didn’t quite work out that way. Five British citizens were repatriated from Guantanamo in 2004 and freed within days of retuning to the UK, since they had broken no British or international law. Something similar might have happened to the two Australian detainees, Hicks and Mamdouh Habib. Prime Minister John Howard admitted in mid-2003 that Hicks had not broken any Australian law. The Australians were not repatriated, however:

It seemed as if Howard was going to allow the US to do to Hicks what Australia could not do, and what Britain had not permitted. But Hicks had not violated any more American laws than he had Australian. The only place he could be held was this no-man’s-land, beyond the laws of any country, in Cuba.

Around that time, 27 other detainees were handed back to their countries of origin. The US Department of Defence announced that they ‘no longer posed a threat to US security or no longer required detention by the United States’. Mori comments that the vagueness of the statement seemed to cover up the terrible mistake of detaining men who should never have been sent to Guantanamo in the first place.

The statement also raises several questions that Mori does not address, the most obvious being under what auspices foreign combatants in a war on the other side of the world ‘required’ detention by the United States. I have often wondered about the ramifications for international law of the US’s repeated transgressions of national sovereignty, from the time they went into Panama and fished out Manuel Noriega to their assassination of Osama bin Laden on Pakistani territory without Pakistan’s assent. In the Noriega era, I was a young editor and urged my paper to find an international law expert to explain how the US could do it. The other editors looked at me as though I were mad: Noriega is a bad guy, who cares? This attitude – often held by the general public but, worse, also by those whose job it is to scrutinise the actions of public officials – is precisely why nation states can flout their own and international laws. They rely on the populist response to the ‘bad guys’, and history shows that it mostly works.

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Mori worked doggedly over the following years, trying to extricate Hicks, who surely did not belong at Guantanamo: not for what he did or did not do, nor for any clear and present danger he might have represented. More than once, Mori describes how far from intimidating Hicks’s presence was: he was short, under-educated and under-trained. Surrounded by precision-drilled American personnel, he cut an almost pathetic figure. Once he was broken by the physical and mental cruelty of the Guantanamo system, he was wretched.

By 2004, Hicks’s case was before the US Supreme Court. His defence counsel were trying to use the civil courts to challenge the validity of the Military Commissions. Mori hoped the charges against Hicks would be deemed invalid, even though no-one had seen the actual charges yet. His team was not the only one testing the waters in federal courts. In April, a Deputy US Solicitor-General argued in the Supreme Court, in a case involving another ‘enemy combatant’, Jose Padilla, that torture would never be used by the US military to coerce information. Days later, Seymour Hersh broke the Abu Ghraib story in the New Yorker. In May, a reporter for the Australian, who had been to Afghanistan and spoken to former detainees, broke the story that Hicks had been beaten by US forces in Afghanistan. As Mori tried to parlay that into an investigation by both Australian and American authorities, the prosecution stepped up its activity.

On June 11, charges were formally laid against Hicks. They were conspiracy, attempted murder by an unprivileged belligerent, and aiding the enemy. Missing from the twelve paragraphs detailing the conspiracy charge – which included conspiracy to commit the crime of terrorism, a new concept – was any allegation that Hicks had actually done anything. One of the paragraphs claimed he had surveilled the US and British embassies in Kabul at a time when the embassies were already closed. The second charge bordered on the bizarre. Quite apart from the fact that it could not be established that Hicks had tried to kill anyone, the charge did not fit any law-of-war definition. As Mori puts it: ‘The laws of war do not make it a crime to shoot a soldier in battle. (It would kind of defeat the whole purpose of war.)’ The qualification ‘by an unprivileged belligerent’ was meant to be the clincher. This would not only exclude detainees from being considered POWs; it would make any military act by them a war crime. Part of the proof of a soldier being ‘unprivileged’ was his lack of uniform or insignia, something Mori points out would put undercover CIA operatives in combat zones in exactly the same position.

Unlike those who had undertaken the original investigation into Hicks, who had travelled to Albania and Pakistan but, strangely, not to the country in which he was deemed to have fought, Mori travelled to Afghanistan to interview witnesses. There he learned, among many other things, that fighters could visually identify exactly who was who. Hicks would have been identifiable in the combat zone, certainly to Afghan combatants. Another failure of logic came in the ‘aiding the enemy’ charge. How, Mori asks, could someone be both part of the enemy and aiding the enemy.

If this was a valid offence, everyone who was resisting the Northern Alliance was guilty. That would mean that a lot of people the United States worked with to build the new Afghanistan were also war criminals.

Furthermore, ‘aiding the enemy’ in an American context meant the accused was violating his allegiance to the US – an allegiance obviously not required of an Australian citizen. Australia could not even have charged him with ‘aiding the enemy’ because it had not officially named any enemy. ‘To be honest,’ Mori writes,’ the charge of aiding the enemy would never even pass the straight-face test.’

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Almost as soon as the charges were laid, the case against Hicks began to unravel. One by one, lawyers sitting in all kinds of offices picked them off. Despite the Bush administration’s best efforts, constitutional liberties and rule of law proved difficult to overturn. The Supreme Court, referring all the way back to Magna Carta, ruled that US federal courts did have jurisdiction to review the legality of the detention of non-US citizens held at Guantanamo. The same day, it ruled that another detainee, a dual Saudi-US citizen, must, as a US citizen, be told why he had been classified as an enemy combatant and be allowed to argue against the designation in a neutral court. Unwilling to fight that one out, the Bush Administration organised with the Saudis for him to be repatriated to Saudi Arabia, to renounce his US citizenship, and to undertake not to leave Saudi Arabia for five years.

After a series of often amazing twists and turns, involving the repeated recalibration of the legal framework, the internal structure and the personnel of the Military Commissions, the charges against Hicks were eventually dropped. His mental and physical heath were deteriorating. An explosive private email from the prosecutors was released saying the Commission system was rigged and unfair. Hicks’s lawyers began procedures for him to claim British citizenship through his mother, so that he could be released under the British-American agreement. There were public protests on his behalf in Australia. When the story about the prosecutor’s email broke in Australia, former High Court judge Mary Gaudron was moved to issue a statement:

It’s clear that [Hicks] has not committed an offence under American law, or he would have been dealt with in American courts with American laws. The rule of law, normal civilised behaviour, says you are not deprived of your liberty, you are not exposed to punishment, if you haven’t broken the law. That’s the very essence of a civilised, free, democratic country.

A few weeks later, the Law Council of Australia sent an open letter to Prime Minister John Howard demanding a trial for Hicks in a ‘properly constituted court’ or his return to Australia – exactly what the British had demanded at a government-to-government level and got. The Australian government, it said, has ‘dismissed the concerns of the legal profession and denied the application of the rule of law – a principle upon which the entire legal system is based.’

Yet every minister in the Howard Government whose brief touched on the matter – the Prime Minister, the Foreign Minister and the Attorney-General – continued to wash their hands of the matter. ‘Whatever the emails might say we, as of now, are satisfied,’ Alexander Downer stated. In 2006, the US Supreme Court, in another case brought by a detainee, Hamdan vs Rumsfeld, decided the Bush administration did not have the jurisdiction to set up the Military Commissions without congressional authorisation, because they did not comply with either the US Uniform Code of Military Justice or the Geneva Conventions. John Howard, apprised of the development, said:

I’m quite firm in my statement that I do not want [Hicks] to come back to Australia without first facing a trial in the United States. I’m not in favour of asking the Americans to let him go without a trial, because if he comes back to Australia he can’t be tried, because the offences he is alleged to have committed were not crimes under Australian law at the time he committed them, and therefore he would effectively go free without charge in this country.

The grounds on which Howard wanted Hicks to remain in foreign custody, in other words, were exactly the grounds on which other governments had demanded the repatriation of their nationals.

It was not clear Hicks had committed any crime under US law either, something that Howard, a solicitor by profession, must have known. ‘So, in the view of his own country’s leader, Hicks was already guilty,’ Mori writes:

Of what? Howard didn’t know. How should he be tried? Howard did not know. When could he be released? Howard didn’t know. All Howard knew was the position he had already dug himself into. Mistaking stubbornness for strength, he saw it as a political virtue that he would abandon his countryman to years of unlawful detention.

The NSW Attorney-General, Bob Debus, became involved. He convened the State Attorneys-General in Fremantle in 2006 and the new Federal Attorney-General, Phillip Ruddock, also attended. The outcome was the Fremantle Declaration, which affirmed the right to a fair trial, the principle of habeas corpus, the prohibition on indefinite detention without trial, the prohibition on torture, access to rights under the Geneva Conventions, the separation of powers, and the prohibition on the death penalty. ‘Australia has signed and committee to international treaties and conventions in which these rights are protected,’ the Declaration continued. ‘We reaffirm our commitment to these international agreements and principles.’ Debus said at the time, ‘Neither I, nor any of my colleagues, have any particular sympathy for David Hicks, but we have a bedrock commitment to the principles by which he should be dealt with.’ The only signature missing was Ruddock’s.

Then came what Mori calls a PR masterstroke on the part of the Bush administration. Fourteen 9/11 conspirators, previously held in secret ‘black sites’ across the world, were brought back to Guantanamo. With such villains on hand, Congress sped through authorisation for the Military Commissions. In February 2007, new charges  were brought against Hicks: providing material support for terrorism and attempted murder in violation of the law of war. Within a month, a military judge had dropped the attempted murder charge on review.

Next came what Mori calls the ‘Godfather deal’. Talk of sentencing to date had involved decades behind bars. The prosecutors would not even discuss the possibility that time served might count towards the total. With their case evaporating in front of them, the prosecutors more or less gave up and concocted a face-saving plan. Mori could barely believe his ears. If Hicks pleaded guilty to the remaining charge – an Alford plea, which means the defendant does not admit he committed the offence but will accept the conviction – he could go home within 90 days. On May 20, Hicks arrived in Adelaide aboard an RAAF flight and was immediately placed in solitary confinement in South Australia’s highest-security prison. By December, he was released under a strict control order, which expired within a year.

In the six years since, Hicks has married and written a memoir. A few months after his autobiography was published, the Australian Director of Public Prosecutions started legal proceedings against him under the Proceeds of Crime Act. In 2004, the Act had been amended to include offences covered by the US Military Commission, presumably with Hicks in mind. A year later, the DPP dropped the charges on the grounds that Hicks’s guilty plea had been obtained under duress. Neither the DPP nor the Government could possibly have been blind to the irony of that outcome. Mori eventually left the Marines. He has settled in Melbourne with his wife and their three sons, where he works in the Social Justice department of the law firm, Shine Lawyers.

Mori goes into an enormous amount of detail in this book, which is full of names, dates, acronyms and arcane points of law. Surprisingly, the narrative doesn’t pall because of this, but maintains a gripping pace. Mori – aided, no doubt, by his editor, the exemplary writer Malcolm Knox – makes the most complex legalities transparent. His account of the unfolding of events makes their ramifications increasingly clear. The injustice of Hicks’s incarceration, the speciousness of the Bush administration, and the hypocrisy of the Howard Government are illuminated by Mori’s growing anger and frustration, and his sympathy for his client. But they are also illuminated by his ardent and continuing belief in American ideals and military honour. Counter-intuitively, perhaps, because he expects the best of his country and its institutions, he shines a light all the more brightly on those who failed David Hicks and all the other men who passed through America’s illegal sites of detention. Guantanamo, don’t forget, was only the most visible.