Yet Another Defense Attorney Attacked by the Bush Administration

by Kevin Jon Heller

I have written before about the Bush Administration’s war on attorneys who defend individuals accused of terrorism. (See here and here.) A new front has now been opened in that war, with the chief U.S. military prosecutor accusing Major Michael Mori, who is representing David Hicks — the Australian scheduled to be the first GITMO detainee tried by military commission — of violating the Orwellian article 88 of the UCMJ, which prohibits the use of “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession”:

MAJOR MICHAEL MORI, the defence lawyer for David Hicks, could be removed from the case after threats from the chief US prosecutor, Colonel Morris Davis, to charge him under the Uniform Code of Military Justice.

The intervention may derail Hicks’s trial, and possibly prompt his return to Australia. It would take months for a new lawyer to get to grips with the case and the new military commission process.


Major Mori denied he had done anything improper but said the accusations left him with an inherent conflict of interest.

“It can’t help but raise an issue of whether any further representation of David and his wellbeing could be tainted by a concern for my own legal wellbeing,” Major Mori told the Herald. “David Hicks needs counsel who is not tainted by these allegations.”

Major Mori, who has been to Australia seven times, will seek legal advice. The issue will also have to be raised with Hicks when his legal team next sees him.

Indeed the Federal Government has highlighted Major Mori’s work as proof of the fairness of the much-criticised US military commission system.

However, Colonel Davis said Major Mori was not playing by the rules and criticised his regular trips to Australia. He said he would not tolerate such behaviour from his own prosecutors.

“Certainly, in the US it would not be tolerated having a US marine in uniform actively inserting himself into the political process. It is very disappointing,” he told The Australian. “He doesn’t seem to be held to the same standards as his brother officers.”

The accusation is a transparent attempt to force Major Mori from the case. The Major has proven an able defense attorney — and a justifiably outspoken critic of the military commissions:

“The Military Commission will not provide a full and fair trial,” Mori told reporters at his government office near the Pentagon Wednesday.

“The Commission process has been created and controlled by those with a vested interest only in convictions,” Mori said.

The military lawyer expressed great concerns about the potential for other countries to provide captured U.S. military personnel with the same limited rights as the U.S. is proposing to use.

“A principal concern as a member of the military is that I do not want my fellow service members placed in any jeopardy beyond the risk they already face,” he said.

Mori told reporters he personally believes Hicks should be tried in an Australian court. Mori said he is not free to discuss the circumstances which led to Hicks’ battlefield capture, nor other specifics of Hicks’ case.

However, Mori asserted Hicks at no time had harmed any U.S. citizens, negating the need for him to be tried by U.S. authorities. He said if the U.S. government does charge Hicks, the case should be tried under existing military procedures.

“Three is no valid reason to create a new justice system only for non-U.S. citizens,” Mori said in prepared remarks before a bank of television cameras and U.S. and Australian journalists.

“The established general court-martial system has jurisdiction to try war crimes and complies with international law,” he said. Mori said a military commission will have a lower standard of proof for conviction than a court martial.

Not coincidentally, the attack on Major Mori follows the Bush Administration’s decision to add a new charge against Hicks, material support of terrorism. A judge recently dismissed a second and more serious charge of attempted murder, meaning that Hicks is now facing none of the charges — conspiracy, aiding the enemy, and attempted murder by an unprivileged belligerent — for which he was originally detained five years ago. (Which is becoming a habit for the Bush Administration, as its similar treatment of Jose Padilla indicates.)

Major Mori has criticized the new charge, arguing that the crime of materially supporting terrorism is being applied ex post facto because it is not part of the law of war and was only added to the military commissions’ jurisdiction in 2006:

“David has been charged with only one offence – material support of terrorism.

“The material support charge has never existed in the laws of war.

“It was created in October 2006.

“The U.S. is applying this offence to David retrospectively even though Australian (government) ministers have said that is inappropriate.

“Prosecutors claim the offence of material support has been on the books for years, but they are talking about a U.S. domestic offence, of which David is not charged.

“If you put the military commission offence and the federal offence of material support of terrorism side by side, they are not the same offence.

“If the (Australian) government’s position is that the commission and US federal offences of material support are the same, and therefore not retrospective, then prosecutors could have charged David five years ago in US federal court rather than let him rot in Guantanamo.

“All this time, we have been told that David had to be tried by military commission rather than in a federal court because the offences were war crimes.

“But after five years, the US has not charged David with a single war crime.”

Section 6(d)(2) of the Military Commissions Act provides that the Act applies retroactively, so it is unclear whether Major Mori’s ex post facto argument is correct. What is clear, though, is that the Bush Administration isn’t above subverting the judicial process to neutralize someone who has the temerity to challenge it.

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