MICHAEL MORI In the Company of Cowards: Bush, Howard and injustice at Guantanamo. Reviewed by Kathy Gollan
Military lawyer Michael Mori’s defence of David Hicks carried a high price, but in the end he got his client home.
The only piece of good luck David Hicks had was being assigned Major Michael Mori as his defence lawyer at the military commission set up to try the detainees at Guantanamo Bay. Mori says he was only doing his job, and anyone would have done the same. That’s a hard claim to believe as he details in this book his unrelenting efforts over four years to represent Hicks.
A series of bad choices and bad timing had landed Hicks in Guantanamo Bay. But what kept him there for five years was the bad luck to be from Australia – and not from Yemen, Saudi Arabia, Britain, Albania, Sudan, Egypt and many other countries, all of which did more for their incarcerated citizens than Australia did.
Mori was a proud product of the US military system – Republican leaning, he loved the Marine Corps, loved the law, and enjoyed his work as a military lawyer.
One month into his dream job as a military prosecutor in Hawaii, 9/11 happened. Not long after, nominations were being sought for potential defence counsel for the military commissions that were being created to try captured enemy fighters. Mori was told that they would be rather like courts-martial, a system he was very comfortable with, having worked on both the prosecution and defence sides. He did wonder why these captured enemies were being referred to not as ‘prisoners of war’ but as ‘unlawful enemy combatants’. That was the first clue that what the Bush administration had in mind was a system that avoided the Geneva Conventions and was cynically designed to ensure convictions.
This book is the story of a man’s search for justice, and even if the prose is pedestrian, and the detail sometimes exhausting, it’s an appealing read.
Mori finally met his client in late 2003. He thought he might be hostile and belligerent, but instead he found a ‘small, quiet, lost-looking man’ who had no animosity towards Americans and for whom Islam had principally been a way for a working-class boy to travel to interesting countries.
When the charges against Hicks were finally revealed the following year, Mori could not believe how weak they were: ‘conspiracy to commit terrorism’, a newly invented crime which did not exist in the international law of war; ‘attempted murder by an unprivileged belligerent’, also invented by the Bush administration to avoid giving the detainees the rights of POWs (and in any case there was no evidence that Hicks had ever shot at anybody); and finally, ‘aiding the enemy’ – but it was difficult to see how an Australian could be charged with aiding an enemy of the United States.
As well as preparing for the military commission, Mori launched cases to challenge their jurisdiction in civilian courts in both the US and Australia. But every case they won just delayed the process further. And in the surreal world that the ‘war on terror’ had created, the Australian government would not bring Hicks home because he had broken no Australian laws.
In the meantime Hicks’s mental and physical health was declining. Mori was often in the position of having to tell him that there had been a legal victory in one arena or other but that it wasn’t going to change anything.
The release of Mamdouh Habib and four British prisoners made Hicks more depressed than ever. The allegations against Habib were potentially more serious than those against Hicks, yet he had been released. There was no logic to it. It seems at this point Mori realised that the only hope for Hicks was through public pressure:
The British government by acting vigorously for its citizens, had shamed Australia … How could it justify not asking for Hicks’s return? … The more the Australian public understood about the unfair process, the better, I thought.
For this to happen he would have to go against all his instincts as a lawyer and military man and engage with the media. Although Hicks’s father and his Australian lawyer had been fighting in his corner from the beginning, Mori was harder to ignore, with his conservative military haircut, his uniform and earnest manner. He learnt what the media wanted and provided it, if necessary doing their homework for them.
It was at some personal cost, as during his stint as Hicks’s lawyer, two investigations were initiated against him, and he was passed over for promotion several times.
But he was still perversely proud to be American:
Only in America would a president create these sham trials and then permit a press conference that would slam everything he had created. In a funny way I was proud of my country for at least letting the world see most – not all, of course – of the shambles that they had constructed, and that were slowly unravelling before their eyes.
2006 was the worst year for Hicks and for the legal team – despite all their efforts in the courts, the military commissions were as rigged as ever. Hearsay evidence was still admissible, there was no provision for counting time spent in custody towards a final sentence, and statements obtained through cruel interrogation methods were admissible if they had been obtained before December 2005, as was the case with Hicks.
Hicks’s conditions at Guantanamo Bay become even worse that year with the appointment of a new commandant. All his reading material was taken from him and he was put into solitary confinement. In his autobiography (Guantanamo: My journey), Hicks talks of his plans for suicide, and how close he came to carrying them out.
However, in Australia, 2006 was the year public opinion started to turn in favour of Hicks. The Law Council was active, GetUp had publicly funded ads and billboards. And late in the year Howard made a rare political mistake by admitting that he could have had David Hicks brought home but chose not to. This gave an opening to the team to initiate legal action in Australia and obtain a ruling that an Australian court could hear evidence on whether Hicks’s detention was unlawful and even violated international law.
In 2007, facing an election, Howard acted at last and after that events moved quickly.
The final chapters of the book are much more exciting as the system, having played every dirty trick in the book, turns on its own in its efforts to get rid of Hicks as quickly as possible. All previous charges are dropped and another, newly invented war crime of ‘providing material support for terrorism’ is applied retrospectively against Hicks. A plea deal is worked out with Mori that would have Hicks released to an Australian prison within 90 days, if he pleads guilty, and significantly, signs a statement that he had not been abused:
After all these years they were just desperate to be rid of Hicks. Was it political pressure, or the dawning reality that his case was not going to live up to the hype of the ‘worst of the worst’? I did not know, and in one way, I did not care. I just wanted to get Hicks out.
But in the meantime the military commission begins its hearing; the judge throws two of the defence lawyers off the case and bullies Mori before he learns of the plea deal that has been negotiated by his superiors. His palpable shock when he sees that Hicks will only serve nine more months in prison instead of the years that he had in mind must have been satisfying to Mori.
When Hicks was finally escorted from the prison to an Australian plane, Mori was not invited. Hicks’s request that Mori be allowed to accompany him to Australia was not granted. But he went to the airport anyway and they both movingly describe the moment when Hicks’s shackles are finally removed and he pauses at the top of the steps to look back at the hellhole that has been his prison for five long years.
In one way this is a story of persistence in the face of defeat. For four years Mori worked hard to prepare a case for the defence, knowing that his client had committed no crime under the international law of war. Then suddenly the charges are dropped, his client pleads guilty to something else and Mori’s job is over. On another level it’s the story of a man who came to realise that the system he had believed in was unjust and who reluctantly turned to the court of public opinion. He put his client’s interests ahead of his own and got him home.
Michael Mori In the Company of Cowards: Bush, Howard and injustice at Guantanamo Viking 2014 PB 304pp $29.99
Kathy Gollan is a former executive producer and editor for ABC Radio National.
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