Major Mike Mori addresses Queensland lawyers

Our roving reporter Barbara Flowers has filed this extremely informative report of Major Mori's update on David Hicks, organised by the Australian Lawyers Alliance and held at the Brisbane Convention Centre on Friday 3rd November:

Major Mike Mori attracted quite a crowd at the Convention Centre, in spite of the Friday lunch time slot, slightly less than enough time to scramble across the Victoria Bridge and then be back at work for Friday arvo's surprises. One interesting fact about Major Mori is that he was a Criminal Lawyer. This became evident from his persuasive presentation of the David Hicks facts, summarised with a flourish and delivered with the theatre and passion of the good barrister that he clearly is. Another interesting fact is that he volunteered for the role of David Hicks' lawyer, and was not appointed by the Department of Defense, in spite of the assertion otherwise in his Wikipedia entry. This sheds some light on the curious contrast between his haircut and his legal stance. The other things I discovered about him is that his nickname is Dan and he has served in the US Marine Corps since 1983.

He took us through a timeline of Hicks' incarceration, the bouts of solitary confinement, the history and legality of the Military Commissions and the various slowly grinding wheels of justice which culminated in two important US Supreme Court cases which affect the GITMO detainees:
In Hamdi v. Rumsfeld 542 U.S. 507 (2004) the Court ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

In Rasul v. Bush 542 U.S. 466 (2004) the Court ruled that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

The result of these two decisions has been the drafting and enactment of the Military Commissions Act 2006. Interestingly the Secretary of Defence, Donald Rumsfeld, wrote the rules of trial procedure for this new Act and it has clearly been drafted to overcome the legal issues raised by the Supreme Court in the two cases above. Under the MCA the normal rules of evidence are changed. The burden of proof is now on the defence to prove the prosecution’s evidence unreliable while at the same time not allowing knowledge of the way in which this evidence was obtained, or at times, even access to it. Another outcome has been the stripping of habeas, from the Commission’s trial process. (A habeas corpus petition is a petition filed with a court by someone objecting to his own or another's detention, and showing that the court ordering detention made a legal or factual error.) It creates a new crime of ‘conspiracy’, something the higher English courts have already rejected as a criminal offence. And it allows for retrospectivity, something the Australian Attorney-General has specifically stated as inappropriate to our own legal system, while accepting that it can apply to David Hicks within the US legal system.

There have also been amendments to the War Crimes Act (US Code Title 18, para 2441) an Act which covers combat offenses committed by people who are not active military personnel. The changes remove the offence of degrading a prisoner (is this a back door tolerance of torture?) and no longer requires the provision of a fair trial.
Mori then outlined the different levels of law which might apply to Hicks. Under Australian law there is no statute which Hicks has violated, according to the Australian government. Under US law as an Australian citizen he cannot be charged with aiding the enemy although he was picked up fighting against the US in Afghanistan. The US Congress itself has found that attacking soldiers is not an unlawful war offence, it’s what each side does to the other. Under International Law there are prohibitions regarding the means of attack, and prohibitions on particular conduct towards protected persons or objects, but was Hicks guilty of any of these things. Major Mori thinks not.

The future in some ways is going to be déjà vu all over again as much of the progress achieved in Rasul and Hamdan in testing the legality of the Guantanamo incarcerations will have to be re-litigated subsequent to the MCA. At the moment Mori sees another argument over jurisdiction, something that had been resolved in Rasul.

Of course there was a lot more legal discussion but it wouldn’t be possible to fit all of that into a short overview like this one. I’ve tried to pinpoint the important sign posts in Major Mori’s presentation. It was good to get a better insight into the nexus between politics, the media and the legal system, something we obviously see at close quarters in Queensland and Australia from time to time.

And here is one last interesting fact, this time about David Hicks. The famous photograph where he’s holding what looks like a rocket launcher on his shoulder, was actually taken in Albania, long before he went to Afghanistan. In the full picture he’s posing with a couple of grinning friends. It gives quite a different impression from the cropped version we’ve been shown, the one where it seems he’s firing a few rounds at the US Army right that minute.