David Hicks could have been released from Guantanamo Bay and returned home sooner if the Australian Government had asked, his former defence lawyer, Michael Mori, believes.
Lieutenant Colonel Mori told a full room at the Sydney Writers’ Festival on Friday that the government “knew Hicks hadn’t violated Australian law, but that became a rationale for abandoning an Australian at Gitmo”.
In conversation with ABC journalist Marian Wilkinson about his 2014 book, In the Company of Cowards, Lt Col Mori said the title refers to all the people who had to go along with the new system of military commissions for it to work.
“It would only have taken one judge advocate-general to stand up and say ‘no’ … but no-one did,” he said, though he described three prosecutors who quit their positions within the commissions as heroes.
Lt Col Mori did not accept statements made by the Australian Government at the time that it could not help Hicks because “he’s Australian and that’s what governments are supposed to do”.
Now the military lawyer appointed to represent Hicks by the US Department of Defense in November 2003 feels he could have done more to educate the media and the public about the flaws in the system, and the conditions Hicks endured in Guantanamo Bay.
He still believes the Australian Government could and should have asked for Hicks’ return soon after his capture. “Would he have been there if he was from the right suburb of Sydney?” he asked.
Meeting Hicks was a disappointment. Instead of the person then described by US and Australian governments as “the worst of the worst”, Lt Col Mori saw a five foot two client with the accent he loved from time playing college rugby here in the eighties. “I sort of felt ripped off as a defence attorney,” he said. But he could identify with Hicks; “I joined my own extremist organisation.”
In a contemporary opinion piece for the New York Times, Alberto Gonzales, then counsel to President Bush, said: “Some in Congress and some civil libertarians remain skeptical of the military commissions. Their criticism, while well-intentioned, is wrong and is based on misconceptions about what the president’s order does and how it will function.”
Lt Col Mori joined the skeptical and critical soon after his appointment. He described filing his first applications to dispute the charges laid against Hicks and having several internationally respected experts on the laws of war rejected as witnesses on Hicks’ behalf. “They wouldn’t ever let us put on what we needed to. We realised going outside the commissions was more important.”
With a political approach came heightened scrutiny from international media. “If he got 40 years, everyone would be looking back at what I had done. There was so much pressure to get it right.”
Lt Col Mori acknowledges Hicks was routinely subjected to random acts of violence during his detention. “I’m not sure if this was motivated, whether this was intentional or just jerks being jerks.” But there was “an attitude from on high that ‘we don’t care about them’,” he said.
In 2006, the US Supreme Court invalidated the first charges brought against Hicks. That decision found that the military commissions were illegal under US law and the Geneva Convention. In response, Congress passed the Military Commissions Act of 2006. Lt Col Mori said this process involved “creating crimes to guarantee convictions”.
In February 2007 Hicks was charged with attempted murder and providing material support for terrorism. On 1 March 2007, Judge Susan Crawford dismissed the charge of attempted murder for lack of evidence. Then on March 27, Judge Crawford approved a pre-trial agreement that Hicks accept the charge of providing material support for terrorism in return for a reduced sentence. On March 31, he was sentenced to seven years’ jail with all but nine months suspended.
Hicks returned to Australia in May 2007, and imprisoned for a further seven months as part of the arrangement. He was released on December 29 and placed under a control order that prevented him having contact with the media. That order expired in December 2008, when it was not renewed.
On 16 October 2012, the US Court of Appeals for the District of Columbia Circuit ruled that any charge of providing material support for terrorism was not authorised by the Military Commissions Act of 2006 and invalidated the conviction of Salim Ahmed Hamden, alleged to be Osama Bin Laden’s driver.
In February this year Hicks also successfully appealed his 2007 conviction. Deputy Chief Judge Silliman of the US Court of Military Commissions Review noted that “both parties agree that the appellant’s conviction cannot stand on the merits”.