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The war on civil liberties


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Cite as: (2009) 83(04) LIJ, p.24

Lt Col Michael Mori speaks Exclusively with the LIJ about the law, representing David Hicks and the future.

Lieutenant Colonel Michael Dante (Dan) Mori, 43, is a virtual unknown in his homeland the US, but for close to four years he was public property in Australia.

The US-appointed defence counsel first met David Matthew Hicks in December 2003 at the US Naval Base at Guantanamo Bay following Mr Hicks’ capture in Afghanistan as an “unlawful enemy combatant”.

Mr Hicks had fewer civil rights under the US military commission process than he would have received in both the civilian and military court martial processes including, perhaps fortuitously, that he was not permitted a free choice of Lawyer.

Major [as he was then] Mori soon began to dismantle the case against Mr Hicks and called the Commission process “show trials set up for political purposes, not legal ends”.

Mr Hicks was captured by American forces in Afghanistan in 2001. He was imprisoned at Guantanamo Bay for six years before pleading guilty to supporting terrorism. In exchange for the plea he returned home to Australia in May 2007 to serve the remaining nine months of his sentence in an Adelaide prison.

In 2007, Lt Col Mori was presented with honorary membership of the Australian Bar Association and an Australian Lawyers Alliance civil justice award as “recognition by the legal profession of unsung heroes who, despite personal risk or sacrifice, have fought to preserve individual rights, human dignity and safety”.

Twice Major Mori spoke at the LIV, and on his second visit in August 2006 he updated more than 180 members of the legal profession on Mr Hicks’ case. He also made a special guest appearance on the ABC television program Enough Rope with Andrew Denton, also in August 2006.

In late 2007, Major Mori was re-assigned as a staff judge advocate to the commanders of Marine Corps Air Station Miramar in San Diego.

Last year, US President Barack Obama ordered Guantanamo Bay be shut down.

As Lt Col Mori no longer has to field daily media inquiries or be in conflict with government, he is now contemplating his immediate future and a possible move to private practice.

LIJ: Why did you undertake a Law degree?

Lt Col Mori: Attending Law school was presented as an opportunity through the Marines officer program. Before that I had never considered being a Lawyer.

LIJ: Did you volunteer to represent David Hicks or were you handed the brief and what were the thoughts of a military Lawyer defending a Guantanamo Bay detainee?

Lt Col Mori: I volunteered to work at the Military Commission Defense office but was handed the Hicks case. Before being assigned to represent David, I was the head prosecutor for the Marine base in Hawaii. I actually knew little about the military commissions before the opportunity to work on the commissions arose and hoped they would present a different type of case than I had been working on. I had no idea it would become the experience it did.

LIJ: A lot of people were stunned that, as a military officer, you entered the court of public opinion to speak on behalf of your client and against the US government, effectively your employer. What propelled you to do so?

Lt Col Mori: In January 2004, when I first spoke out publicly, there had not been any real criticism of the Bush administration’s policies surrounding Guantanamo and military commissions in the US. I thought long and hard before speaking out, but it was clear that the system was not going to provide David with a fair trial.

I believed it was important to get the truth out and to allow people to decide on their own fairness, to respond to all the government falsehoods about military commissions and lay out the flaws of the unfair system that was going to try an Australian citizen.

I felt it had to be done. I knew I had the truth on my side and hoped others would begin to question what was really going on.

Fortunately, many others in Australia took an interest in the commission system which got the media to dig a little harder which got people’s attention.

The overwhelming response to David’s situation by so many people was wonderful to see, but it would never have occurred without all the help I received from so many people in Australia and the US.

LIJ: What followed must have come as a surprise; you were suddenly a public figure, travelling the world and being quoted in thousands of media items. How did you handle the exposure and did it distract from your work?

Lt Col Mori: The public role in representing David was something I had never done before and dealing with the media was probably the most stressful part of the job but one that had to be done.

Australian legal professionals and universities were there at the beginning wanting to find out more about the case, which got the media to finally have a more in-depth look at David’s situation.

I also came away with an understanding of the challenge that faces reporters who have to cover such complex stories as Guantanamo in a 600-word piece.

But one thing that was reinforced for me being involved with the international attention on the military commissions was that it is always a client, not a cause, for the criminal defence counsel.

When advocating for the client benefits a just cause so much the better, but it is important to guard against the cause growing beyond the client.

LIJ: While representing Hicks you were handed honorary legal titles and asked to speak at legal and human rights events. How did you handle it?

Lt Col Mori: The formal recognition I received was very humbling. I don’t think I ever viewed myself as a public figure and hope that if another Lawyer had been assigned to David that the same job would have been done.

LIJ: Were there times during the Hicks case that you began to doubt the good purpose of the Law?

Lt Col Mori: I am not sure I doubted the Law as much as the process and some of the people that practise Law.

The US federal court system took far too long for cases to progress after experiencing how fast the UK and Australian court systems moved in the cases involving David.

But it appeared the delays were the federal court strategy for the US Administration and it worked.

An illegal military commission was created and lasted for years only with the assistance of Lawyers. This definitely made me shake my head and wonder what values those Lawyers took away from their Law school experience.

LIJ: How has the face of advocacy changed since Guantanamo Bay?

Lt Col Mori: I hope that non-practitioners and the media are more sensitive to the rights of people accused of a crime and will be a little more critical when the government makes allegations against individuals.

LIJ: Did you feel vindication following President Barack Obama’s decision to close Guantanamo Bay?

Lt Col Mori: I hate to admit it but we did settle in the Hicks case [but] most people understand that it was the quickest way out of Guantanamo for David, to avoid more years of solitary confinement when there was no prospect of a fair trial. I felt vindication when David left Guantanamo. We are going to have to wait and see what legal system is used to try any of the remaining detainees at Guantanamo. I would feel we are on the right path if US federal courts are used for any future trials.

LIJ: Do you keep in touch with David Hicks?

Lt Col Mori: I liked David since the first time I met him at Guantanamo and certainly formed a friendship that I hope lasts. I formed so many friendships with people in Australia that it will make this experience unforgettable.

LIJ: What would you say to a criminal defence Lawyer about keeping the fire in the belly?

Lt Col Mori: You have to love what you are doing and understand the important role a defence counsel plays in a justice system. I always found a way to connect with my clients and tried to put in the effort that I would want a member of my own family to receive.

LIJ: What lies ahead for Michael Mori?

Lt Col Mori: I recently found out I was selected for promotion to Lieutenant Colonel which came as quite a surprise as I had not been selected the previous three years. So my immediate plans are to remain in the Marines at least until 2012.

LIJ: Did you ever consider leaving the Marines for private practice? If so, what made you stay?

Lt Col Mori: After my first tour as a Lawyer in the Marines, I was looking into getting out and opening my own Law office back in Massachusetts but an opportunity to move to Japan came up and that kept me in. The next thing I knew I had almost 20 years and was too close to retirement to leave.

[But] as I am nearing the end of my time in the military, I have just begun thinking about practising outside of criminal defence but I have not come to any definite answers on this yet. In criminal defence, I enjoy the interaction with the person who I am representing and the responsibility that comes along with it. So whatever I do in the future, I would want that personal representation to be part of it. l

Jason Gregory

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