The unusual case of David Hicks is one of the most spectacular and politically supercharged miscarriages of justice in Australian history. Like the infamous Boer War case of Breaker Morant, Hicks was politically scapegoated and grossly denied a fair trial. Unlike Morant – a war criminal who murdered prisoners of war – even Hicks’s accuser, the United States, never claimed that Hicks had hurt anybody or plotted to harm civilians. No wonder his military lawyer, Michael Mori, felt ‘ripped off’ getting Hicks, after being told he would be defending the ‘worst of the worst’. Whereas the young Australian government demanded answers from Britain about Morant’s trial, the Howard government repeatedly urged US military commissions to prosecute Hicks.
While Hicks’s moral choices still arouse passions, the legal injustice was put beyond doubt by the US decision to quash his 2007 conviction and to void his sentence in February 2015. Thirteen years after Hicks was detained in the Afghanistan conflict after 9/11, the US legal system finally accepted that his purported offence of ‘providing material support for terrorism’ was unlawfully retrospective. Hicks’s alleged conduct – being a part of Al Qaeda or Taliban forces against the United States and its allies – was simply not criminal at the time under international or US laws of war, thus offending one of the most elementary principles of justice.
Hicks’s lawyers, most military lawyers, experts in international law and human rights, and peak bodies such as the Law Council of Australia, had said this all along. Astoundingly, the Abbott government reacted to the exoneration of Hicks by spitting that it would not apologise for actions it took to make Australia safe, and that the US decision concerned legal technicalities, not what Hicks had supposedly done wrong. The nine-month sentence that Hicks served in an Adelaide jail on an invalid conviction is apparently irrelevant – despite illegal imprisonment fundamentally infringing the rule of law, and normally attracting whopping compensation payouts from governments that have violated liberty and abused their power.
Michael Mori, a career US Marines lawyer and lifelong Republican voter, rose to prominence in spruiking the injustice of Hicks’s case to the world between 2003 and 2007, when he represented Hicks in the US military commissions. His book, provocatively entitled In the Company of Cowards, chronicles how a regular military lawyer, schooled in the rule of law and the due process traditions of the US military, finds himself shocked and angry at Hicks’s treatment, and resolves to do his utmost to defend him.
‘Astoundingly, the Abbott government reacted to the exoneration of Hicks by spitting that it would not apologise’
Hicks told his own tale in his book Guantanamo: My Story in 2010, and journalist Leigh Sales got in first – in the heat of the controversy and without the benefit of later revelations – with her book Detainee 002: The Case of David Hicks (2007). Some facts may always remain slippery in a case where no competent court has ever delivered a judgment. Mori was closer than anyone to Hicks during his five years at Guantánamo. The strength of his book is that it intimately recounts the defence perspective, at close quarters and in fine, human detail.
The narrative is told in the folksy, accessible style that endeared Mori to many Australians when he was waging a public relations war for Hicks in the media under the Howard government. Mori was persuasive. Public sentiment turned in Hicks’s favour as his incarceration dragged on and the extent of the system’s unfairness became incontrovertible. Howard, towards the end of his government, with an election nearing, buckled, and agitated more robustly for a speedy resolution to Hicks’s predicament.
Mori capably recounts the sorry legal story of the military commissions: their irregular creation and multiple iterations; their lack of independence from the US executive government and military command, and the constant political meddling; their manifest procedural unfairness; and the retrospective, made-up charges. While the contours will be familiar to lawyers who followed the case, there is still much valuable fleshing out of detail, albeit without the more sophisticated and nuanced scholarly debates about the legal minutiae. For other readers, the legalities are well explained, particularly how seemingly technical issues serve to secure common sense, universal principles of fairness and justice.
‘Mori was closer than anyone to Hicks during his five years at Guantánamo’
The book also conveys a lively sense of the practicalities of defending such an extraordinary case. Mori knew little about international law and had to rapidly get up to speed, aided by experts. He coordinates with an endlessly shifting team of military and civilian lawyers, across multiple military and civilian court proceedings. He encounters US military personnel who think that terrorists ‘should just be shot’ and who doubt his purpose. He interviews witnesses in the boondocks of Afghanistan, and investigates if fellow US personnel abused Hicks. He struggles to improve Hicks’s living conditions, bettering the terrible food, but is prevented from giving him a copy of the legal thriller To Kill a Mockingbird. He travels endlessly to and from Guantánamo on a tiny propeller plane sans toilet. He recounts his frequent dealings with Australian authorities, from often helpful legal and consular staff, to the political leaders who ‘abandoned’ Hicks for ‘political convenience’. He débuts in the media, and suffers recriminations from his superiors. He fights in the court room and in the court of public opinion. He tries to keep hope alive for Hicks and his family.
The focus of the book is purposely on the military commissions, which Mori was closest to, up to Hicks’s conviction and repatriation in late 2007. Other chapters in the byzantine legal plot, ripe for further telling, include the British case to secure British citizenship for Hicks; an Australian court case challenging Hicks’s detention and Australia’s failure to protect him; the anti-terrorism control order imposed on Hicks after his release from prison; the aborted attempt to confiscate the literary proceeds of Hicks’s own book; and a pending human rights complaint to the United Nations about Australia’s role in the case.
Mori also engages with the moral quandary presented by Hicks, presenting him more as a misguided adventurer who naïvely believed he was fighting for the underdogs in Kosovo, Kashmir in Afghanistan – just as Australians had volunteered in the Spanish Civil War. This obviously paints Hicks in his most flattering light. Other less favourable facts may be contested, but he certainly wrote letters celebrating jihadi death, railing against Jews, and admiring Osama bin Laden; and he acquired military training in this ideological context. He didn’t know about 9/11, but he (briefly) participated in armed forces against whom the United States and Australia were fighting in collective self-defence after 9/11.