Don’t let Major Michael Dante Mori’s good humour, jug ears and unflattering Jarhead haircut distract you (even Jake Gyllenhaal couldn’t make that haircut look good) from his simple straightforward commitment to what he sees as right and proper: this man is a Marine machine, the straightest of straight arrows, a man who refuses to deviate one iota from his principles regarding his duties as laid down by the Judge-Advocate General and the United States Code of Military Justice.
Major Mori refuses to criticise the military he serves, he just wants the military to be free to act according to their longstanding tradition of fair trials before courts martial as laid down by the USCMJ. By continuing to insist on a fair trial, he doesn’t see himself as being unreasonably critical of the administration, he sees himself as a mainstream patriot whose actions are predicated on benefitting US military personnel by rigorously upholding the standards of military justice on which they rely.
Mori has been in and out of the Marines for over 20 years – first as an enlistee, and then into officer training after law school before being reassigned to active duty as a Naval and Marine lawyer. He has held increasingly senior positions as both defense attorney and prosecutor before he volunteered for assignment to the Pentagon for more experience in legal defence through acting for the Gitmo detainees. During his career he has been awarded the Navy Commendation Medal, the Navy and Marine Corp Achievement Medal, and the Good Conduct Medal. This is the record of a man who is proud of his military service and committed to honour its finest traditions.
Yet Major Mori is notorious for not accommodating the wishes of his Commander-In-Chief. He is so committed to ensuring a fair trial for a man accused of being one of “the worst of the worst” of the Talibani al Qaeda sympathisers in Afghanistan that he and his co-counsel for the detainees at Guantanamao Bay took their objections to the Bush Adminstration’s military commissions system all the way through the the USA court system to the Supreme Court. The Supremes accepted their arguments that the commissions as formulated did not constitute a fair trial for the accused and violated various provisions of the Geneva Conventions.
Mori is gratified that the Supremes saw things his way, but arguing in front of the highest bench in the country (and receiving the ACLU Medal of Liberty) wasn’t what he was expecting when first assigned to David Hicks’ case. Mori described how his initial response on reading Hicks’ file was that he had been fobbed off with a low-status assignment: (paraphrasing his interview with Andrew Denton) “Who was this small-fry? I want one of these “worst of the worst” I’ve been hearing about – this guy’s not even charged with hurting anybody.”
The more he read, the more he conferred with his colleagues defending other Gitmo detainees, the more concerned he grew. As shown on Nine’s Sunday programme in 2004:
In the shadow of the Lincoln Memorial, Major Mori criticised the military commission that will decide David Hicks’ future. He said the commission “will set a bad example in which the unfair process of rules could be used to try US soldiers in the future … so you’re worried other countries might turn it around and use these rules on your own soldiers in different countries. I think that’s one of the primary reasons for fighting for David Hicks to get a fair trial, to ensure US soldiers in the future get a fair trial.”
This has been his continuing plea: that justice must be seen to be served fairly for all, including David Hicks, not just because it’s ethically right but for pragmatic reasons too. Because if the USA (and allies)is seen to be unjust to its enemies then its enemies will have no incentive to be just to Americans (and allies).
“the issues revolving around David’s situation are basic fundamental rights and protections that everyone deserves, and we give to everyone in our own countries, both in Australia and the United States – the most heinous criminal gets the most fundamental protections of due process and fairness, yet for some reason, we don’t want to give that to David Hicks, who’s not even charged with injuring anyone.”
The Pentagon has just renewed Mori’s assignment to Hicks’ case for another year, until July 2007, which means Mori’s career has effectively stalled compared to his swift rise through the JAG hierarchy in previous years.
MICHAEL MORI: Well, obviously I’m happy to stay with David as long as possible. Obviously, I’m very disappointed that it’s going on over three years.
LEIGH SALES: What would you have been doing if you weren’t on this Hicks case?
MICHAEL MORI: Well, I don’t know. I was hoping to get the opportunity to deploy to Iraq, or serve as a military judge, you know, opportunities that come. Hopefully they’ll still be there for me when this is over.
LEIGH SALES: So is being involved with this case so long term having a detrimental effect on your career with the US military?
Mori deflected the question, but it’s also one that Andrew Denton asked him on last night’s Enough Rope: that people are saying Mori has sacrificed his career in his tenacious pursuit of justice for Hicks.
I know it’s been implied that Mori is only using Hicks to play up for a future political career, seeing as he’s from liberal Massachusetts where tripping up BushCo won’t do him any harm in the electorate’s eyes. Maybe Mori is considering whether a political future might beckon down the line. But so what? Straightforward principled people who make a stand are the type of people we should be hoping for in politics and encouraging to run.
But before Mori can consider a career in politics, he first has to complete his time in the military, and complete his commitment to his client, which now consists of attempting to persuade the Australian government to act for one of their citizens at least as vigorously as the USA would act for one of theirs.
Last night, the US Marine assigned to defend Hicks told ABC TV’s Enough Rope that his client was unlikely to receive a fair trial.
Major Michael Mori said the Australian Government agreed to give far more rights to American soldiers who commit crimes.
“The ’status of forces’ agreement between Australia and the US, for US soldiers who commit crimes in Australia … one of the rights is they must confront the witnesses against them,” he said.
“They don’t want to give that to David.
“It’s those basic fundamental human rights [that] the US will force Australia to do for US soldiers, Australia is more than happy to do a way with for one of its citizens.”
Mori’s drips of water on the stone of antipathy towards Hicks since 2003 may be starting to have their effect. It appears that sentiment in Parliament is swaying towards belatedly standing up for Hicks as an Australian citizen, and insisting that he be repatriated to Australia now that the Americans have held him for so long without trial. Some of the Senatorial voices speaking up are surprising.
We’d expect the Greens and Democrats Senators to be behind a repatriation move, but the Liberals’ George Brandis pointedly refers to the matter needing to be “brought to a conclusion more promptly” and Danna Vale is much less diplomatic, saying that in most of Australia “you don’t get five years solitary confinement for murder” and “Hasn’t he already served enough? If he can’t be tried here and he hasn’t committed a crime here, he’s exactly the same as you and me.” Barnaby Joyce of the Nationals is wavering too (he’s probably worried a week might go by without the press describing him as a maverick).
Mori is giving a lecture at ANU on 17 August, where proceeds from a gold coin donation will go to the Red Cross – it’s already booked out, but there’s talk of setting up some overflow arrangements in other halls to accommodate demand.
There should be a transcript of Andrew Denton’s interview with Mori on Enough Rope up shortly.
UPDATE: Ruddock is now saying that the Australian Government would be seeking the return of Hicks to Australia unless the USA can guarantee him a speedy trial. This is a surprise to Major Mori, but a pleasant one.
I hasten to point out that Mori’s four co-counsel for the Gitmo detainees are equally admirable straight arrows. He’s not been a lone actor here.
Nothing wrong with the haircut. Keep it high. Keep it tight.
Major Michael Mori, Defender of the Constitution, I salute you.
And to think he was appointed by AmeriKKKa’s evil army!
The Supreme Court didn’t require any of the Gitmo detainees – including wannabe murderer and psychopathic scumbag, David Hicks – to be freed. The application of the Geneva Convention to terrorists will destroy the Geneva Convention. The legal action taken to get around the necessary military tribunals has been the chief cause of delay for detainees.
Mori often argues that Hicks is innocent because he broke no Australian law. Not “straight” at all but cute and dishonest lawyerly semantics.
Mori for PM, who cares if he’s not Aussie. Sounds like a pretty decent bloke.
Yeah, i can’t say i’m completely sure justice is going to be done – either way. Vale’s right. In all probability he’s done more time and copped worse punishment than any court would give him. But shouldn’t we be sure of that?
The domestic politics are very curious.
Denton’s interview with Mori was simply wonderful. Mori came across as a straight-up, decent guy who’s been caught in a very nasty political game.
Maybe David Hicks is a “wannabe murderer and psychopathic scumbag”, maybe he isn’t. The point is that Hicks should be subject to a fair, open, transparent form of judgement for his actions. The attitude of those like C.L. and the Australian government is that somehow Hick’s is prima facie guilty, and does not deserve the benefit of a fair trial.
One does have to wonder whether C.L. or any of those who have already condemned Hicks would be happy to be tried under the Military Commissions that were initially proposed. Bearing in mind that every single jurist in the world has condemned the Military Commissions as unfair, biased, and set up purely to obtain a conviction, one rather suspects that they, if they were sequestered in Gitmo and deprived of any legal rights, would do exactly what Hicks and others have done. And I bet they would hope for someone as resolute as Major Mori to stand up for them.
Cheers…
PS. C.L. should remeber that if Hicks has broken no law, then he is indeed innocent. If it wasn’t illegal when he did whatever he did, then it goes against every principle of natural justice for it to be subsequently made a crime, and for Hicks to be prosecuted…
Yeah, I don’t see how the difference between whether someone broke the law or not is ‘dishonest’ ’semantics’; it is the question lawyers and courts are supposed to be deciding.
Not only did he not break any domestic laws, but I’ve heard no allegations that match a breach of international law. How individual footsoldiers in the Taleban, as unpleasant as they may be, automatically become terrorists is beyond logic.
I’m certainly willing to hear additional evidence linking him directly to killing of civilians or colluding with OBL, such as might come out in a proper trial, but I’d put money on there not being any.
CL is a moral vacuum, yet he claims to be a Christian. That’s the funniest thing that I’ve ever read.
Mori was an inspiration. He readily admits that he was appointed due to having next to no experience in this process. In short, they chose someone they didn’t think could do the job. Weren’t they wrong?
Mori makes the point that the American’s are unwilling to subject their own citizens to this sham process, yet the Australian Government does so without question. What a bunch of creeps.
Had there been any worthwhile evidence, you can bet that even an administration as incompetent as Bush’s would have put him on trial by now. And of course it’s not as though that evidence can be effectively tested, as in a normal court.
Justice delayed is justice denied.
How true. One that’s particularly good at sucking up whatever shit his political heroes dish out.
Why don’t I wonder how I’d feel if I was locked up for 5 years without trial? Because I am not a terrorist scumbag, that’s why.
Fuck me, the issues you wankers choose to fight your battles over. Give yourself a break, your ideas aren’t so fucked that they need support this scumbag.
Poor, low functioning RWDBs.
They just don’t get it, do they?
Perhaps it’s the deficiency in their own personalities that makes it impossible for them to see beyond personalities to principle and due process.
Primitives and vulgarians, all of them.
But enormous entertainment value!
Viva RWDBs!
Go back to Blair’s sheltered workshop now, but y’all come back real soon, y’hear?
First the verdict, eh James?
Right to a free and fair trial, presumption of innocence and speedy justice are THE fundamentals of our legal system. If they aren’t worth fighting for, I don’t know what is.
Yep, the rule of law is for losers.
I don’t think David Hicks is a great bloke, but I do think that fierce protection of fair legal processes might be a handy way to distinguish us from Islamist nutjobs.
And how do you know that David Hicks is a ‘terrorist scumbag’ James Hamilton? Probably because the American government has told you so. The fact that they haven’t tested this claim, even before a rigged system, doesn’t tell you anything, does it James.
The phrase gullibilty beyond reason springs to mind.
I’m not usually quite so bad mannered but this issue really gives me irrits.
He was found where he was found, the trial and discussion is so superflous I am just as bad as you idiots fuelling it. For that I apologise. I should not be bothering to participate. It’s not as if 90% of Australia knows what presumption of innocence in face of the bleeding obvous is.
Jurisprudentially, this was the critical bit from Mori’s appearance on “Enough Rope”:
The point is that there is no way to counter such a charge for which no test applies.
Thus, by the same logic (or illogic) Tim Blair could be put on trial for being a “bad bloke”. An open and shut case, you may well say, but there exists no measure of culpable “badness”. And I would like to see even Tim Blair chucked into the clink on such a piece of crypto-juridical nonsense.
That’s what makes us so much better than RWDBs.
Many others were found where he was found, JH. And others were charged with more serious (and real) offences. Then allowed free.
As for the “bleeding obvous”, why not a fair trial to discern that?
You idiots. Bush and Howard have said more than once he is guilty. They must know, they made up the rules after all
Lefties love their terrorists!
You people are really not very bright. Actually I’ve written in various places over the the last year or so that I wasn’t pleased with the time involved in this. However, the trial has been delayed because of lawyers who want Geneva Convention rights afforded to terrorists. Bleeding heart – but unread – whiners like Adriaan and the tragically dim Alex would have the Geneva Convention destroyed so that non-regular murderers (terrorists) could be treated like captured soldiers. I think the Michael Moris of this world shouldn’t be compared, at law, with the Abu Musab al-Zarqawis. Anyone who says otherwise is an ammoral apologist for terrorism.
Hamdan vs. Rumsfeld found that Hamdan himself should not be released because he was dangerous; same for all the others in Cuba. The court more or less expected the government to tighten up its existing ideas.
Media-tart Major Mori can go on lying about Hicks being “innocent” because he broke no “Australian law” but it won’t help free his client. The alternative is retrospective Australian laws mean to apply to the kind of crimes which weren’t on our jurisprudential radar when Hicks was caught. If the government did draft such laws, you can be sure some aspect of them would be held up in the Senate or would be regarded by Hicks Huggers as unfair because of their targeted nature.
Justice is being delayed for Hicks by those who want to destroy the Geneva Convention and that’s too high a price to pay to expedite one idiot’s trial.
I’m of the belief that Hicks should be charged and tried and authorities get on with it soon, but the case hits so many difficulties because the nature of what is a religio-terrorist war bears no relation to what is termed ‘conventional’ war, so there is no reference point to adopt, including the Geniva Connention, and, in law, once a precident is set, all subsequent law follows, and lawyers go about their business, right or wrong, based on the decisions taken, which means whatever decision is laid down, and it should be laid down by an independent international court (if you can possiblty find one that is not influenced by the right or left, or by politico-religious influences with a stake in what is, in this instance, known to be an Islamic militant thrust against anything non-islamic), whatever decision is laid down will influence the future of all religio-terrorist warfare and the prisoners such religio-terrorist warfare will throw up.
No, justice is being delayed because they want to make up new rules because the existing ones don’t suit them.
I can just imagine what Cl and others like him would say if it were Iran, China or similar attempting to avoid existing laws and conventions because they didn’t like them so, they could put American or Australian soldiers through a similar ‘trial’ process.
The JAG Corps advocates and all of those who support their actions leading up to the recent Supreme Court decision want the Geneva Convention respected, not destroyed.
The USA has the right to detain him as a prisoner of war (or did, as other known WoT Afghan Talibanis are permitted to study at Harvard these days) or try him as a war criminal, but it’s got to be a fair trial.
If they can’t prove the charges against him in a fair trial, then it is not just to rig up a show-trial military commission system purely for the purpose of finding that Gitmo detainees guilty no matter what. That’s what will destroy the Geneva Convention, giving the accused a fair trial won’t destroy it.
Just to throw a spanner in the works, while I want a trial for him, I’m not putting all my money on this being fair even if it’s in the civilian courts, given the political and public pressure and the constant labelling of them as terrorists.
Walker Lindh got jailtime and no evidence was ever produced to show that he was anything more than a rank and file taleban member, manning a foxhole for a little while in the Afghani civil war against the northern alliance.
James, how does just being there fighting along with the Taleban make him a terrorist? It might make him a total misguided f***wit, and a religious nut, but it simply isn’t terrorism.
I don’t like citizens who’ve had the benefit of our society and education running off to fight other people’s wars, but we let a tonne of serbs and croats do it, we even had our foreign minister giving condolences when one of ours was fighting for Israel.
Of course, when you’ve so magnificently stuffed up your policy decisions on a big scale, its nice to have a couple of home grown half wits to persecute- faces in the stocks for the war on terror TM.
Good on you for posting on this, tigtog. Major Mori does indeed have a head like a muppet but once we overcome the visual shock what we see is a thoroughly decent, earnest and hard working lawyer doing his utmost for his client in extremely difficult circumstances.
Hicks was a fool to get himself into this mess. Nonetheless he deserves a speedy and fair trial just like any other accused person.
CL, your attitude to Major Mori and David Hicks is not very Christian. Unless that is, you are the type of Catholic who wants to bring back the Inquisition. Shame on you. Your penance is five Bloody Mary’s and a cold shower.
Dear CL. You’ve stated that Hicks is a terrorist. Why don’t you share your brilliant telepathic skills with us by revealing the evidence to support this claim?
Incidentally, the US claim Geneva conventions don’t apply to Hicks as he wasn’t wearing a uniform, however neither were the Northern Alliance or the CIA fighting in the region.
I’ll repeat that the Americans refuse to allow their own citizens to be subjected to this process. They’ve tried their own terror suspects within the court system with success. It’s the Americans who’ve torn up the Geneva Convention, CL, by selectively enforcing it.
I’m not a practising Catholic, Steve, so I’m not sure why you think that’s important.
??
Armaniac, as I’ve said, most reasonable people subscribe to the idea that justice delayed is justice denied. I agree. However, in this difficult situation, the use of Geneva Convention standards would destroy the Geneva Convention. Trying terrorists en masse in open courts cannot work for a variety of reasons, not least that it would undermine national security.
The Bush administration’s alternative, its middle way – military tribunals – wasn’t accepted by the Supreme Court but the decisions in Hamdan more or less encouraged the White House to try again in that same vein.
You don’t seem to understand, Alex. The Geneva Convention is meant to preserve juridical “civility” in armed conflict. Pathetic as that attempt is, it’s important. If we afford all of those rights to terrorists, we are essentially saying that someone who bombs a child-care centre is a soldier (like Major Mori, Jack Murtha, John Kerry and Weary Dunlop) involved in operations recognised as “military.” That would be the end of what very little remains of decency or restraint in war.
As for Hicks, his guilt or innocence at law is a matter for speculation. The biographical timeline of his movements and activities is not contested. (Something the good Major Mori leaves out of his ‘love me, I’m earnest’ routine). Hicks was certainly a terrorist – albeit that he was somewhat short of becoming a made man.
CL:
and then:
Where is your evidence, CL?
That’s almost civil CL.
It is possible to conduct a discussion.
CL:
Nonsense. article 5 of the Geneva Convention lays out the procedure by which eligibility to be treated under the convention mat be determined.
There may be such a category as “illegal combatant�. Article 5 of the Geneva Conventions provides the mechanism for such a determination:
CL:
So try them one at a time.
CL:
True.
Repetitious nonsense. See discussion about article 5 above.
CL:
True. But that’s what a judicial system is for: to minimise speculation and to maximise the use of good evidence. That fact that it is still a matter for speculation after 4 years is an abuse.
CL sez:
“I’m not a practising Catholic, Steve, so I’m not sure why you think that’s important.”
Oh. I thought you were a BA Santamaria admiring Catholic Defender of the Faith. Now I’m not sure where you’re coming from. How do you describe your ideology?
Article 5 refers to persons who fall into the categories outlined in article 4. Namely: members of recognised, organised armies or militias. Neither article was ever meant to apply to terrorists and doing so now affords a status to them that is detrimental to the “civilised” conduct of war. It also weakens the special status of legitimate soldiers, tending towards a chaotic re-constitution of what a justly waged war is and who its legitimate participants are. This is contrary to what the Geneva Convention aims to achieve.
Re mass trials. I wasn’t talking about the impossibility of one trial for all; I was talking about the practical difficulty and imprudence of conventionally trying hundreds of captured terrorists – all with rights of appeal in openly reported courts. Then you really would see people locked up for years on end. Strange solution to the problem of slow justice.
As I said, applying the Geneva Convention to terrorists destroys the Geneva Convention. Civil trials would not expedite justice but would tend to drag it out even longer. On national security grounds alone, the prospect of trying terrorists according to conventional evidentiary procedures would strengthen terrorism.
No surprise that the Supreme Court essentially said to the government in Hamdan: you’re on the right track here. Just tighten it up a smidgen.
That is a misinterpretation of Article 5. Viz.,
An attentive reading of Atrile 5 reveals the following:
a. The first paragraph refers to persons for whom there is no dispute.
b. The second paragraph deals with those about whom there is any doubt. It may be that the “competent tribunal” assigns the prisoner to a category other than that of prisoner of war. Should the tribunal so determine it is likely that the promulgators of the Geneva Conventions assumed that the defendant would be turned over to some competent judicial body for trial, possibly for war crimes, possibly for treason, or possibly for some civilian crime.
On the question of the slowness of reaching a decision. It is safer for a procedure to be slower but based on proper jurisprudential principles than quicker, but amounting to nothing more than a kangaroo court.
You have not demonstrated the truth of your legal reasoning. Neither have you demonstrated the soundness of your policy recommendations.
When has any ‘competent tribunal’ determined that Hicks was not covered by the Geneva Convention because he did not meet the requirements of Article 4, as required by Article 5?
CL, you still haven’t dealt with the fact that the USA has tried it’s terror suspects within the court system successfully, and has also refused to allow any American to be detained in Gitmo.
CL is a verbose idiot.
Katz, I’m really not trying to impress you with my “legal reasoning” – neither of us has a great deal of that anyway. The truth is the Geneva Conventions offers a pragmatic deal of sorts to those who would wage war. It is this: those in uniforms, plainly armed, with bona fide command structures and operating pursuant to the internally lawful procedures of nation states – these shall be regarded as lawful combatants and, if captured, must be accorded certain rights. One of the constraints on military leaders during war is fear of prosecution for war crimes. They have an interest in properly prosecuting their military aims according to law and they expect to be treated as men so motivated if taken into custody by their enemies.
If we all of a sudden decide that terrorists – who do not meet any of these crieteria – deserve to be treated as though they did, then we are saying that we give up on the noble endeavour of trying to civilise something that is already uncivilised enough. The US administration is attempting to create a system that would allow for unlawful combatants to be categorised as such and to be tried by military tribunals. The Supreme Court has encouraged that process.
Why the liberal critics – funnily enough, none of whom thought to cite the Geneva Convention regarding Hezbollah’s use of civilians to shield military operations against Israeli citizens (expressly forbidden) – why they want to undermine the Geneva Convention is utterly baffling. The reason nobody talks of bringing Hamas extremists or Hezbollah leaders up on charges for their violations of law is that nobody thinks of them as uniformed soldiers. Were we to think of them that way – and try them accordingly – we would be saying that war had evolved to a new point, one where the banality of their evil was being given moral parity with the activities of lawfully constituted armies at war. Better to try them as non-soldiers – which is what they are. Not merely “better” that we do that, in fact. Imperative we do.
I think we can peg fatty as a Hicks Hugger!
Here’s a picture of Allah’s Bazooka, by the way.
Here’s the full picture CL.
It’s Hicks posing with a couple of other members of the KLA, and has nothing to do with Afghanistan or Al-Qaeda. In fact, the KLA assisted US intelligence officers and NATO during the Bosnian conflict.
I know it doesn’t quite have the same impact though, does it?
Yes, let’s see those side by side. The crop the RWDBs like to show:
and the full picture:
My family albums have pictures of young men in WW1 posing with their mates and their guns in much the same way. As Major Mori said, he has shots of himself with his buddies and their guns posing too. I’ve seen young blokes out west on a pig shoot do a macho pose with guns like that. It’s what young men do when they’re mcuking around with guns.
True, tigtog. When we were younger we used to go rabbit hunting with rifles. I’m sure there are pics of most families — particularly rural families or those whose sons were in the Cadets — with rifles or air-guns.
Did you see today’s Age on the new terror suspect photos with rifles? Happening all over again:
http://www.theage.com.au/news/NATIONAL/Terror-accused-in-photo-with-AK47/2006/08/14/1155407724220.html
(Thoughtfully, The Age decided to publish the photos.)
“funnily enough, none of whom thought to cite the Geneva Convention regarding Hezbollah’s use of civilians to shield military operations against Israeli citizens (expressly forbidden)”
Well, OK, no problem. I condemn Hezbollah for this for the reason you suggest, if you insist that I do so publically.
However, I’m not sure how on earth we are going to persuade Hezbollah, or anyone else, to abide by the Conventions if the US and other countries that formulated and supported them for 50 years ditch them.
The point of the Conventions is pretty clearly to encourage everyone to treat everyone else humanely; personally, CL, I find your attempts to legitimise degrading procedures using the language of the Geneva Conventions themselves to be kind of amusing, coming from someone who condemned “cute and dishonest lawyerly semantics” upthread.
True, tigtog. When we were younger we used to go rabbit hunting with rifles.
LOL. This is the funniest thing I’ve read all day. God, the damage you could do to a bunny with a bazooka!
The Sicilian mafia also helped US intelligence officers.
A great many ex-KLA members have been found guilty of war crimes and many went on to fight as roving freelance mercenaries.
I doubt Major Mori will be calling Alex for the defence!
Andrew, why you want to afford soldier status to murderers is your business but it doesn’t say much for your morality.
PS: The first picture was retrieved online from that well-known RWDB newspaper, The Age. I’m grateful for the larger picture.
I also condemn Hezbollah’s use of civilians to shield their military operations against Israeli civilians.
Israel would be right to send any commander of Hezbollah they capture to a fair trial for war crimes according to the provisions of the Geneva Conventions.
CL, the Geneva Conventions sometimes do perform that function.
But they also do more. As a signatory to the Conventions, under the US Constitution they have the status of law in the United States. That is the reason why a majority of the US Supreme Court judges invoked them in their decision to declare illegal the Bush administration’s intentions for the Gitmo detainees.
Your responses so far have been clever enough, but partial. You are unwilling to relinquish the hope that laws can be ignored for the sake of convenience.
Perhaps several of the judges on the US Supreme Court also harbour your hope, but try as they might, they couldn’t find a way around black letter law.
They have better legal minds than you CL. They gave up.
Give up your quixotic fantasies CL.
“Andrew, why you want to afford soldier status to murderers is your business but it doesn’t say much for your morality.”
Actually my morality’s doing just fine, CL, thanks for asking. Haven’t murdered anyone lately I don’t think, nor condemned anyone else for doing so without possessing firm evidence to support the accusation. How’s yours?
Katz, the Supreme Court didn’t “give up.” It decided that military tribunals, as they were constituted, were contrary to law. Commentators from all sides have acknowledged that the Court more or less gave the green light for the Administration to re-draft their laws. The court did not rule Gitmo should be closed and did not rule that any of its detainees should be freed. Regarding the eponymous Hamdan, Justice Stevens accepted “the truth of the message implicit” in the charges against him: that he is “a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians.”
No soldier, Hamdan. No soldier, Hicks.
weathergirl sez:
“Did you see today’s Age on the new terror suspect photos with rifles? Happening all over again:
[link]
(Thoughtfully, The Age decided to publish the photos.) ”
Don’t be so naive. The Age already faces accusations of left wing bias. It would have been stupid not to publish the photos.
We need to trust that sufficient of our fellow citizens are as clever as you are and accordingly won’t form adverse opinions, based on seeing the photos, to make an impartial jury selection impossible.
C.L.:
I’ll give you the same sort of nice simple black-and-white choice that as-yet-unimpeached G. W. Bush loves to give: You are either with us on the side of good or you’re against us and you’re on the side of evil.
Make up your mind.
Do you stand with us and God, the rule of law, impartial justice, democracy, free enterprise, freedom of speech, honour, valour, the Geneva Convention, a fair go, the Magna Carta, civil society, parliamentary government and everything that has brought progress and prosperity ….
OR …. Do you stand with our enemies and Satan, Hitler, Stalin, the Bush-Cheney-Rove clique, Al-Qaida, rule by decree, torture, rendition, secret prisons, domination by fear, rigged elections, massive fraud, corruption, cowardice, fundamentalist fanatics of various religions, secrecy, the murder of innocent people, lying propaganda, oppression and worsening poverty.
It’s either us or them.
Actually I think he’s quite cute, tigtog
Ps – if we’re going to play the dichotomy game, I’m with Graham.
Graham, I’m against the usage of crack cocaine and you should be too my friend.
You’re getting closer to the truth CL.
These procedures, the Supreme court decided, were “contrary to law”, to use your elegantly simple phrase, because the breached the Geneva Conventions.
You’re earlier, unconsidered statement on this topic was:
Do you still think that this describes the state of mind of the US Supreme Court? Because, after all, it is they who wish to apply the Geneva Conventions to the Gitmo detainees.
See what a bit of critical thought can achieve?
The thing you’re all missing is that:
1. Hicks has an IQ in the 80’s
2. He suffers from a Napoleon complex
3. He’s broken no Australian law
Therefore, if anything, he should be locked up in the nearest psychiatric ward, not Gitmo.
Katz, I know you’re struggling with this topic – poignantly so – but the Supreme Court encouraged the administration to come up with a better version of the same plan. It ruled everyone in Gitmo should stay there. Including David Hicks. The military tribunals idea was not ruled unlawful. So you still haven’t explained why you want to destroy the Geneva Conventions or why you think a terrorist should be afforded the same status as Michael “Love Me, I’m Earnest” Mori. I don’t think you can and I don’t think that’s what’s important anyway. For lefties – who love their bazooka-wielding, bunny-hunting terrorists – this is really about attacking BU$h and HoWARd.
Nice conflation of terms of art there. Of course military tribunals per se are not unlawful. The particular military tribunal desired by the Bush administration however, in the form of a biased Military Commission, was indeed ruled unlawful.
Other military tribunals, such as courts martial properly convened according to the USCMJ, were not considered by the Supremes as part of the case because the Bush admin has consistently rejected calls for the detainees to be tried according to the USCMJ, which is all that Mori and co-counsel want for their clients: a fair trial.
The Geneva Conventions will be destroyed by hegemonic superpowers trying to get around them, not by applying them transparently to all combatants on a field of war.
What constitutes a “combatant”, though? That seems to be the whole point. (If there’s an answer in this thread I apologise for having missed it.)
The argument is over whether they are legitimate combatants or not, no?
Except for one or two detainees who vociferously said they never even carried a weapon, the detainees are considered to be combatants without a legitimate authorisation for carrying arms.
Lawful combatants are described in the Convention. Terrorists are not lawful combatants and to think of them as if they are destroys the Geneva Convention. That’s because the implicit trade-off between lawful behaviour on the “field of war” (as tigtog calls it) and combatant rights when captured is fundamentally deranged when you allow that AQ or the Beslan crew will be afforded a full soldierly suite of rights if captured. There would cease to be any special incentive for civilised behaviour in war because conduct would no longer be a sine qua non of status. This is what the left argues for – removing the only half-arsed constraint on brutality that we have.
All to Get Bush and Howard.
Could you explain how brutality is restrained at Guantanamo, C.L.?
Friends,
Do you see how quickly CL succumbs to the urge to return to type?
1. He denies the facts of the matter.
And then, seamlessly, he:
2. Deplores the reality of those facts.
But I’ll try one last time.
Friends!
CL finds it difficult to acknowledge that the Supreme Court of the United States has compelled the Bush administration to deal with its detainee within the framework of the Geneva Conventions. He has sought all means of lexical legerdemain to avoid acknowledging that fact. He even calls it a better version of the plan.
Thus, deep down he does recognise that this fact causes his major argument to implode, but the higher operating parts of his brain refuse to incorporate this fact into his world view.
I ask you, Friends, is CL a lost cause to reason?
Has he succumbed to Birdmanesque monomania?
I suppose the question is whether a state should feel morally impelled to treat combatants taken illicitly under arms as if they were licit combatants. In the circumstances of Afghanistan I would say yes, personally, but it is a moot point. Myabe the worst you could say of the US is that it failed to be as magnanimous as it could — and should — have been.
Mark, this is what Guantanamo Bay, not what it isn’t.
…Bay is….
Katz, a commenter who starts addressing onlookers rather than her principal interlocutor is always losing. One more time: the Supreme Court did not rule military tribunals unlawful, did not close down Gitmo, did not ask that its detainees be released, did encourage the Administration – according to commentators from all sides – to re-present its solution in such a way as would be compatible with America’s international law obligations.
Those who want terrorists to be considered “soldiers” are saying they want the Geneva Convention to be destroyed. They would, if successful, brutalise war even more than it already has been.
No Rob.
The Supreme Court decided that the Bush Administration broke US law.
All the US Supreme Court has said is the US law, which incorporates all treaties signed by the US, including the Geneva Conventions, must be obeyed.
The Supreme Court works on the assumption that the US is a government of laws, not men.
Why is this such a difficult concept for some people to understand?
All this mushy blather about magnaminity is irrelevant.
It’s the law stupid!
Nope, there’s no talking to CL.
I really don’t see how that follows. POWs as defined by the Geneva Conventions can still be charged with war crimes as many were at Nuremberg, so how does abiding by the Geneva Conventions in this situation weaken the sanctions against atrocities and excessive brutality in war?
There’s no talking to CL because he insists on constructing straw[wo]men to argue with. He does this because he knows he can beat his own constructions. Viz.,
I have never argued that I want Hicks to be considered a soldier. CL has constructed my persona out of his own hate objects.
CL is more than welcome to argue with himself. He is on shakier ground when he applies my name to one of his personae.
Katz, I’m sorry that you’re becoming upset but you just don’t know what you’re talking about. The only hate being demonstrated is by those like you who think men who blow up pizzerias and creches should be considered “soldiers.” Just like Michael Mori. You should be ashamed of yourself.
tigtog, as I said above, when you allow that terrorists will be afforded full soldierly rights if captured, you would be fundamentally altering the already delicate modus operandi (which is also a balancing act) according to which “civilised” behaviour in war is the ultimate determinant of status.
None of the justices in Hamdan said detainees at Gitmo should be treated as civilians and afforded a civilian trial. None said they should be considered POWs, conventionally understood. If detainees were considered conventional POWs, they could lawfully be held until the war ends.
As for those who are unlawful combatants and who are subject to a military tribunal system, they should not be mistreated and I have never supported any such mistreatment. (Not even the dreaded all-girl Fleetwood Mac covers band). Most regular prisons have a far more appalling record of death and violence than Guantanamo Bay – including Australian prisons.
It’s to be hoped that a new trial system can be legislated and created speedily. It’s a terribly complex and unfortunate situation – foisted on the United States by terrorists.
Sad, isn’t it?
Katz bails.
You are treating it as axiomatic that various men captured fighting for the Talibani etc are, a priori, terrorists. Presumably because the Talibani are baaad. But if holding a Talibani position at the lowest grunt level during the CoW invasion is considered proof that one is a terrorist, then holding a higher position in the Talibani at that time must make one a senior terrorist organiser and conspirator.
So why has the official spokesman for the Taliban in Afghanistan before, during and after the CoW invasion been given permission to study openly at an Ivy League university without being detained and charged? Surely someone at his level in the Taliban must have had at least as much knowledge, and more influence, over what was happening in Afghanistan than a grunt guarding a tank?
It’s these inconsistencies in the Bush administration’s position on the detainees which prompt the questions and the demands for a more transparent trial process and a swift resolution to the determination of their status with respect to the Geneva Conventions.
my old mate CL is getting ahead of himself.
you have to PROVE someone is a terrorist. This isn’t particularly hard to do.
We can even do it in Australia.
somehow they find it hard in the US indeed so hard they concoct a court Roy Bean would be proud of.
no-one with ant legal expertise was surprised by the Supreme court’s decision indeed it was expected.
Ah, C.L., you’re having a run-in with Katz too. My commiserations.
C.L., you’re perfectly right about the Geneva Conventions’ distinction between lawful combatants and unlawful ones, a la David Hicks. As you observe, there was a very real and valid historical reason for this.
Nonetheless, I am, reluctantly, coming to the view that we should give most unlawful combatants POW status. The problem is that almost no one understands the purpose of the Geneva Conventions. People view captives as either a) POWs or b) potential criminals. If the latter, the demand is for full criminal trials with all the procedural and evidentiary safeguards. The Bush administration is viewed, unfairly, as being evil and sneaky for not giving Gitmo prisoners one or the other. It’s a PR problem that won’t go away.
So I’d be tempted to say, fine, you critics win. Congratulations David Hicks, you’re now officially a POW! When the war on terror is over, or at least when fighting in Afghanistan stops, we’ll release you! (And in the meantime, here’s several decades’ worth of reading material.)
As C.L. says, abolishing the unlawful combatant principle would alter the modus operandi “according to which “civilisedâ€? behaviour in war is the ultimate determinant of status”. Nonetheless, that modus operandi is already broken as far as modern conflicts are concerned. The likes of Taliban and Hezbollah are never likely to put on uniforms and respect Geneva Conventions, so the “incentive” value of lawful combatant status is basically redundant.
P.S. I’d like to second Tigtog’s comments about Major Mori. I heard him speak when he visited Adelaide a couple of years ago. He refused to criticise the US military or American foreign policy in general. He was, and is, focussed on the interests of his client — as any good defence counsel should be. Mori struck me as persuasive and charming and formidably knowledgeable about the law.
Why should you expect groups such as Hezbollah to respect Geneva conventions when the US, which is a signatory and claims to respect the rule of law, does not want to comply with them?
As a solier Major Mori says “will set a bad example in which the unfair process of rules could be used to try US soldiers in the future … so you’re worried other countries might turn it around and use these rules on your own soldiers in different countries. I think that’s one of the primary reasons for fighting for David Hicks to get a fair trial, to ensure US soldiers in the future get a fair trial.�
Paulus,
You’re prepared to go further than me. As I said earlier, I am completely agnostic as to whether Hicks should be treated as a POW.
My argument simply revolves around the process by which an individual is determined as being a POW or something else.
This process is mandated under the Geneva Conventions (Article 5, see above).
And the US Supreme Court has determined that the Bush Administration has flouted those procedures.
Were the correct procedures followed, I’d have no objections to Hicks being declared not to be a POW.
However, as Major Mori observed, the Bush Administration has failed to come up with a category under which Hicks should be classed:
So you have a wider range of disagreement with CL than I do, even though you may share an emotional affinity.
And if that is important to you, I hope you’ll find happinenss together.
So why has the official spokesman for the Taliban in Afghanistan before, during and after the CoW invasion been given permission to study openly at an Ivy League university without being detained and charged?
Good question. He should be arrested or, at least, deported. Agreement on something at last.
And yes, tigtog, the Taliban were “baaad.” Interesting that you play down their evil after having dismissed Hicks’ KLA escapades as nothing more than duck-hunting hijinks.
No Katz, Paulus’ position is that because a Geneva-like differentiation process for terrorists and regular soldiers could be seen as pointless – because we are not really at war with any regular armies – we could simply classify them all as PoWs and keep them confined indefinitely. I disagree because I think the PoW model is best suited for regular wars in which large numbers of soldiers sit out the conflict.
But… terrorists are not soldiers under the Geneva Convention and Hamdan vs. Rumsfeld did not require that they be considered eleigible for civilian trials either.
The solution? Military tribunals, re-configured to be simpatico with the UCMJ as per the obvious invitation of the majority in Hamdan.
Katz doesn’t seem to understand that legislatures make law in democracies, not judiciaries. The judiciary in Hamdan struck down a way of doing things – as courts often do. The executive and the legislature are free to re-draft a legal proposal. Hamdan was a major rebuke to those who argue for civilian trials, PoW status, the closing of Gitmo or the release of its detainees.
CL, I don’t like the Taliban. I’m glad they’re no longer the ruling regime in Afghanistan, although I wish the CoW had not diverted their resources to Iraq before Afghanistan was properly secured against the resurgence of both the Taliban and the warlord system, because that’s what’s happening now.
But, just because the Taliban are reactionary theocratic oppressors doesn’t make every single Talibani a terrorist.
I meant to add that the idea Michael Mori likes to cultivate – namely, that a man abroad shouldn’t be considered guilty if he didn’t break any law extant in his home jurisdiction – is total rubbish.
He made it up.
Paulus, do you think you’ve been accurately reported? (I don’t.)
CL, you’re misrepresenting Mori’s argument.
It is a fact that Hicks has not violated any Australian law. An incontrovertible legal fact. That’s got nothing to do with whether the USA should find him guilty on charges under their laws, and Mori has never intimated that it does. He has only ever mentioned it in response to people who ask him why Australians should care whether or not Hicks gets a fair trial.
Wouldn’t you want our government to fight for your right to a fair trial no matter what, but especially if the acts of which you were accused did not constitute a crime under our laws?
Under international law as it currrently stands the Israelis would be quite entitled to do more than that tigtog. Depending on how proportionate attacking and killing the Hezbollah commander was to achieving their military objectives the Israelis would be quite entitled to attack that commander notwithstanding that to do so would likely involve the death or injury of the civilians that he was using as shields, without being in breach of international law.
http://72.14.203.104/search?q=cache:ZdS7XFPCyPkJ:www.manilatimes.net/pdf_version.php?id=1593 george fletcher disproportionate force&hl=en&ct=clnk&cd=1&client=firefox-a
You’re quite right, Katz. My point was tangential to Paulus’s. His related to the public perception of different classifications and the politics and PR of that. Some people have reached his conclusion via the observation that we aren’t at war with regular armies, the differentiation process is therefore inapplicable anyway and we should simply use PoW status as a way of getting a tough alternative to civil and military trials.
Very tough. I think too tough.
In a war that will have no Appomattox moment any time soon, PoW status could be considered more unfair than the current/pending regime.
Michael Mori on Lateline, 30 June:
This is what I meant by TV-eager Mori being cute and making things up. He tries to convince people that poor David couldn’t have done anything wrong because there was nothing on the books back then IN AUSTRALIA.
Oh sure, case closed.
That’s my understanding of international law as well, GregM. I was however answering a question about whether lefties considered a Hezbollah commander ordering rockets fired from behind a civilian shield as committing a war crime, so I confined myself to a scenario where such a Hezbollah commander would be put on trial, which would presume him being captured rather than killed.
Lefties are often accused by hawks of sympathising with various villains for not being on record as condemning this or that as if that means we actually support various atrocities and brutalities. The truth is that I expect anyone civilised to assume that naturally I would of course condemn such wrongs, so I don’t bother to waste pixels clarifying that I condemn what any other civilised person would condemn.
It seems sad that bad faith is so rampant that one is expected to clarify with a broad brush that one does not support terrorism or war crimes every time one posts on finer brush issues to do with due process for accused jihadists or the case against the war in Iraq. I realise that there are leftists/progressives who paint the hawks with an equally broad brush of a different hue, but I do try to not be one myself.
Will this “war” ever have an Appomattox moment? Since the police forces of the world have been much more successful at stopping terrorist attacks than the armed forces, perhaps a redefinition of the “war” on terror is in order.
In the meantime let’s remember we are defending the rule of law against the onslaughts of the barbarians.
CL, what else do you expect a defence attorney to say about his client?
Katz asks, “Paulus, do you think you’ve been accurately reported?”
Yes. C.L. is absolutely correct when he wrote, “Paulus’ position is that because a Geneva-like differentiation process for terrorists and regular soldiers could be seen as pointless … we could simply classify them all as PoWs and keep them confined indefinitely.” And CL’s right too in saying this is a tough alternative.
I would argue for it because:
a) No matter how it is established, many people (eg most LP regulars) will NEVER accept the legitimacy of a military commission that has any less protection for the accused than a standard US criminal trial.
b) They will thus never accept the validity of a guilty verdict, and Hicks’ imprisonment will be a continuing diplomatic irritant between the US and Aus.
c) There is also the intriguing possibility of Hicks being found not guilty, or only guilty of a relatively minor offence. Assuming he has only been a dumb al-Quaeda or Taliban footsoldier, it may not be possible to directly tie him to any specific crime. Therefore, he may only be found guilty of some ‘membership of proscribed organisation’ type offence.
But I don’t want to see the bugger walk free, so I say: give him POW status, make the left happy with what they will perceive as a Bush backdown, and make the right happy with Hicks staying behind barbed wire. Everyone would be happy! (Apart from Davo himself.)
Paulus, I for one would be totally on board with a standard court martial.
Dear People. I started in on this thread about 90 messages ago. And as far as I can see a couple of days later is that nothing that anyone has contributed to this thread will do anything to alter the existing views of anyone. You have all demonstrated that reasoned argument backed by evidence do little if nothing to make any real difference. CL and his ilk are convinvced – prima facie – that Hick’s deserves to rot in prison. (Note that they never say how long for. What about 50 years for guarding a tank? Any advance on 50? What about 100? Maybe 350 – pretend it’s Texas. Fuck, why not the death penalty – strap him to a gurney and give him a hot shot). Anyway.
Presumably they – CL and his fellow travellers – have enough evidence – and the fair, open transparent legal process to establish this beyond any reasonable doubt whatsoever – to convince them of this fact (Did none of you people ever hear of the ‘verbal’?) and that any attempt to give him the protections under law that he IS be entitled to will rent the fabric of civilsation so far that it will never recover. The rest of us want David Hicks to get a fair go by the very rules that the people trying to lock him up say they themselves support.
Cheers…
Dear Katz. What precisely is a “poor, low functioning RWDB”? Just curious. Thanking you in advance.
I think that Katz just has a good line in tautology.
Okay, here is my completely non-legal question to all you ‘lock him up and throw away the key’ type people:
If it is such a good/right thing, why did the US not do it to US citizens? Why were they exempt?
There are other examples I could throw at you, but seeing as I have already lowered the level of this debate, I will leave you to explain that one first.
A tautology.
CL [at 1:02am]:
Well, yes I am ….. but just bear in mind why one of the nicknames for America’s Worst Politician is “Son Of Drugs”.
They could have put in airstrikes on the Medillin Cartel but did not because [a] Pablo said “No”. [b] A puppydog ate all the WAC so the pilots got lost on the way. [c] The signs of the Zodiac were inauspicious [d] It takes money to run political campaigns and slush-funds.
9-11 was not the only mass-crime that was committed against innocent Americans …. it just happened within a single morning and not over a couple of decades.
… and having read Adrian’s nice post, my above is a redundancy.
OK, it’s a tautology. So what are the elements that are tautologous?
Cheers…
I guess he taut you a thing or two!
No Paulus. You stated that you see the Bush Administration’s actions vis a vis hicks et. al. as “counterproductive”.
CL characterised your view of these actions as “pointless”.
Pointless≠counterproductive.
Both of them are less than complimentary characterisations, but in different ways.
An example:
A RWDB who is in the customary predicament of not being able to get a girl to go out with him, may pray to the spirit of Ayn Rand for assistance. That would be pointless.
The very same RWDB may carve his invitation to his intended date into his forehead with his trusty bowie knife. That would be counterproductive. (Really, it would.)
Now Mick that question is a redundancy.
Mick obviously can’t read. I dont want David Hicks to rot in prison. Many people who propose PoW status or a lengthy civil trial DO want him to rot in prison.
Like Katz, they also want to destroy the Geneva Convention.
The Supreme Court disagrees with their opinions. And Hicks cannot be court-martialled because he isn’t a soldier.
PS: “RWDB” explained.
Don’t the Geneva Conventions stipulate that any PoW charged with war crimes must be tried via a court martial?
If he is determined to have PoW status he doesn’t rot in prison, he gets a properly convened trial.
But on the other hand, Tigtog, if the war goes on for a long time, then the POW can be detained for a long time.
The overarching question is whether the so-called “War on Terror” is a war in the legal sense. Is it rather a rhetorical war, like the so-called “War on Drugs”?
And if it is a proper war, where are the enemy soldiers that can be considered to be bona fide POWs?
If there are no bona fide potential POWs anywhere in this so-called “War on Terror”, can the “war” be said to exist in any juridical sense?
The problem with Hicks is that allegedly he was fighting in the service of a sovereign government, even though only three nations recognised the legitimacy of the Taliban regime.
If recognition of the regime were to become an issue, then there is no compulsion for Lebanon to recognise Israel’s soldiers as legitimate POWs.
Katz, backing up a bit — don’t you mean an oxymoron? (It would gel better with your rhetoric for a start
)
Name-calling is not evidence, although certain commenters here seem to think it is. Hicks’ status as a solider may be disputed in court if there is sufficient evidence to argue he was not engaged by the Taliban but rather by al Qaeda, in which case he could be legimately declared a terrorist. Until such determination is made, he was captured in a war zone and should be treated accordingly. Just because the war deposed the existing government doesn’t mean it wasn’t itself legitimate, so its soldiers are, too. Once the war is over, all prisoners of war are expected to be repatriated or tried for any war crimes that can be proven to have taken place with their particpation or at their instigation. Is Hicks a prisoner of war from the ‘War on Terror’ or the war conducted against the Taliban in Afghanistan? Since the ‘War on Terror’ is only a political trope, he can only be a legitimate POW unless sufficent proof exists to separate him from the Taliban.
Thanks for clearing everything up, Greg.