Mori slams Guantanamo commissions

Issue 

A 550-strong lecture sponsored by the Australian Lawyers Alliance on November 13 heard David Hicks' US military lawyer, Major Michael Mori, slam the Bush administration's new military commission law, which will be used to try Guantanamo Bay detainees. Hicks is one of approximately 400 prisoners at Guantanamo Bay being held without charge.

Mori's latest Australian speaking tour included a briefing for federal parliamentarians, to which Attorney-General Philip Ruddock was invited but did not attend. Ruddock was also conspicuously absent when the state attorneys-general signed on to the "Fremantle Declaration" on November 10 in Perth. The declaration calls for seven fundamental legal rights to be upheld, including an end to detention without charge and the right to a fair trial.

Mori, who plans to visit Hicks in December, described the oppressive conditions at "Camp 5". He said it is a myth that Hicks is fine, adding that he faces a grim future of delays and litigation in the US Federal Court.

The Military Commission Act 2006 has been designed to circumvent several aspects of the old military commission system that the Supreme Court ruled illegal in the Hamdan v Rumsfeld decision in June. In particular, it tries to prevent another Hamdan-style ruling, which resulted in the former charges against Hicks being dropped. Mori said that US military prosecutors have privately admitted that they didn't have the evidence to prove "conspiracy", something Mori said has never been part of international rules governing war.

Hicks was also charged with "attempted murder by an unprivileged belligerent". "They made that one up", Mori told ABC TV in August. The essence of the charge, he told the meeting, is to make it a crime to resist a foreign invasion. That's basically what the alleged "Taliban", such as Hicks, were doing when they were captured by Northern Alliance/US forces, he added.

The previous charge against Hicks of "aiding the enemy" was also dropped because it was legally untenable for the US to expect a "duty of allegiance" from anyone other than its own citizens.

The new military commission law strips detainees of the centuries-old right to be brought before a court of law. While it explicitly declares compliance with the Geneva Convention on the treatment of prisoners of war, section 948b(g) prohibits detainees from invoking their rights under the convention. The act also allows the prosecution to bring evidence obtained under torture into court, whereas the defence counsel is denied access to classified information.

Mori criticised the act for placing the onus on the defence to show that the prosecution's evidence is unreliable. Evidence obtained under torture before December 30, 2005, is admissible, but inadmissible if it took place subsequently. "I'm guessing most of the torture took place before that date", Mori surmised.

According to Mori, "All it would take is for the attorney-general to make a telephone call [to Washington] and David would be coming home". But the Australian government has a political problem, he said, because for five years they've labelled Hicks an "accused terrorist" or a "terror suspect". They've admitted that if Hicks was brought home they could not charge him with anything because he has not committed a crime under Australian law. Mori believes the Howard government is still hoping the US will do the dirty work for them.

A national day of protest calling for David Hicks to be returned will be held on December 9, five years since he was captured. Visit http://www.fairgofordavid.org or