So I turn on the tabloid TV this morning, and there’s much agitation about the possibility that Major Michael Mori, one of the military lawyers for David Hicks and a personal fave in the shyster ranks, may face charges that carry a prison sentence for using “contemptuous words” about high ranking US officials. The story arises from remarks made by the chief prosecutor for the American military commissions which will try the accused “unlawful combatants” held at Guantanamao Bay.
“Certainly in the U.S. it would not be tolerated having a U.S. marine in uniform actively inserting himself into the political process,” Davis said. “It is very disappointing to see that happening in Australia, and if that was any of my prosecutors, they would be held accountable.”
He added that it would be up to the Marine Corps to decide whether Mori had violated Article 88 of the U.S. Uniform Code of Military Justice, which makes it a crime for a military officer to use “contemptuous words” about the president, vice president, secretary of defense and other high-ranking officials.
The only words of Mori’s that the International Herald Tribune could point to that could be construed as contemptuous were Mori’s repeated description of the military tribunals and commissions processes as “kangaroo courts”, although I also seem to remember statements he made about how the entire process is politically corrupt which may be held against him (with a long bow) as being contemptuous of those at the top of the chain of command.
After saying in a phone interview “Are they trying to intimidate me?”, Mori pointed out similarities between this criticism and the Stimson scandal last year, when a senior Pentagon official who stated that corporations should avoid using legal firms that were doing pro bono work for Guantanamao detainees was later forced to resign.
Mori said that Davis’s remarks created a conflict of interest that would make it hard for him to represent Hicks. In the future, the question would become, he said, “Am I doing what I’m doing because it is in the best interests of my client, or to avoid being charged?”
Getting back to tabloid TV, the Sky News website woefully simplifies the story (surprise surprise), implying that Colonel Davis may lay charges directly (he can’t as he’s not in Mori’s chain of command) and that Mori has said himself that he may need to be removed from the case, which is certainly not how I interpret the above quote. Pointing out that Davis’ remarks place him in an invidious position is not the same as saying that he plans to give up, in fact I see Mori’s statement as a blunt assessment of Davis’ impropriety in making the remarks at all. Of course, although Davis can’t charge Mori directly, there are cross-command-lines avenues of influence that can’t be entirely dismissed, but in general the Marines are very much not keen on being pushed around by other arms of the
Army Armed Forces.
The Age quotes Joshua Dratel, New York attorney and Hicks’ lead defence counsel, as saying that Davis’ interference typifies the “corrupt” system trying Hicks.
I doubt that Major Mori is in serious danger of being charged with such a penny-ante charge. Colonel Davis’ accusations are another PR move in the juggling act that Hick’s ongoing detention has become for both the US and the Howard administrations, because by putting up the spectre of Mori being removed from the case he’s given Howard a wedge.
Prime Minister John Howard has told Washington that any action leading to further delays would be unacceptable and would prompt him to demand the return of Hicks, 31, after being held for five years at the US base at Guantanamo Bay.
Howard needs the wedge, because the groundswell of support for Hicks’ rights to a fair, timely, transparent trial is growing, and it will be an election issue.
US prosecutors are under intense pressure to offer Hicks, a former kangaroo skinner and father of two, a plea bargain deal by the end of the month.
Senior Australian Government members want Hicks to come home a free man, provided he agrees to a pre-trial plea of guilty.
And what will they do if he doesn’t agree to plead guilty? I find much of what I read about Hicks’ opinions while he was a Talibani offensive and disturbing, but having extremely negative opinions of Jews and the American government is not the same thing as as providing “material aid to terrorism”. Hicks might be willing to plead guilty in order to come home, and who could blame him, but exactly where does his alleged guilt lie?
To think that an ex-kangaroo-skinner offered some special terrorist expertise to al Qaeda seems a huge stretch to me.
Hicks joined the Taliban before 9/11 (zealotry, but not illegal).
He stayed in Afghanistan after 9/11 (perhaps not possible for a Westerner Talibani to leave even if he wanted to).
He was guarding a Taliban tank when captured (definitive grunt work).
While the upper echelons of the Taliban offered material support to al Qaeda in the pursuit of their terrorist goals, it’s hard to see how a grunt Western convert with no expertise can be said to have done so other than by just being in the same region as active terrorist supporters. Is that all it takes?
Hicks’ detention within Afghanistan was perfectly justified. He was found carrying a weapon for the Taliban, and needed to be detained and his case evaluated. But why was such an obvious grunt ever sent to Guantanamao in the first place?
The Age further points out:
Amid rising public anger in Australia about Hicks’ long wait for justice and alleged mistreatment, any Hicks trial risks becoming a public relations disaster. He is to be the first person to appear before a military commission.
The world’s media will be focused on the case, including al-Jazeera and other Middle Eastern outlets.
They will hear graphic testimony of abuses and torture by US guards and interrogators. It will involve a man, Hicks, whose alleged offence pales alongside the serious accusations made against alleged senior al-Qaeda leaders at Guantanamo Bay.
Both the Australian government and the US administration want the Hicks problem to go away, as they are nervous that an actual trial will be a farce showing just how hollow the charges against Hicks are. They just can’t bring themselves to admit that the US were wrong to detain him at Guantanamao in the first place, and the Howard government was wrong to agree with them so doing. Both governments are simply trying to save face.