Staff Review by Chris Saliba
Michael Mori's revealing memoir describes an ad hoc legal system like something out of Kafka's The Trial.
Michael Mori was much in the Australian news a decade ago. The war against terror was in full flight. Everyone lived in dread of another horrible terrorist attack to equal 9/11. Mori, a US military lawyer, had been assigned to defend Australian David Hicks, who was a detainee at Guantanamo Bay. Hicks, at the time, was considered one of the worst. All sorts of charges were laid against him. His history is well known. Captured in Afghanistan in 2001, he was sold by the Afghan Northern Alliance to the United States for $5000.
Most of In the Company of Cowards concentrates on the law, the military and due process. For those who lived through the whole Hicks saga a decade ago, you may think there’s nothing really new to add to the story. However, Mori’s experiences provide a different angle and quite a few surprises.
Hicks was to be tried under the military commission system created by Presidential Order. This system was seen as contrary to well established principles of law right from the get-go. As Mori writes, it was a political system, not a legal system, designed to get a desired outcome. In other words, it was rigged. Because the system was entirely new, it creaked and groaned, in fits and starts, into action. Mori and his client existed in this legal no man’s land. Hicks would remain incarcerated in Guantanamo for some five years, under dreadful conditions.
The whole pointless exercise could have been ended much earlier. All that really had to happen was for John Howard, the then prime minister, to request Hicks be returned. At first Howard simply wanted to wash his hands of Hicks, declaring him a terrorist. But then as the whole process hit hurdle after hurdle, becoming in the end really awkward, Hicks became a liability and the situation an embarrassment. Under public pressure Howard, it seems, requested things be sped up and Hicks ended up back in Australia. He spent 9 months in an Australian prison before being released.
There are several things we learn from In the Company of Cowards. Firstly, huge amounts of time, money, energy and resources were wasted running Guantanamo Bay and the military commission system. It was a legal mirage that couldn’t stand up on its own. It was just a matter of time before it all crumbled. The question is why so much effort and time was wasted pursuing people who were not terrorists, when those resources could have been used actually fighting terrorism. Secondly, the US abandoned all of the POW rights it had fought for after having had its own soldiers subjected to inhumane treatment during the Vietnam war. It walked away from the Geneva Conventions. In fact, the US treated their prisoners of war appallingly. Thirdly, we learn that John Howard backed himself into a ridiculous corner by stating that Hicks wouldn’t be found guilty of any crime if he was returned to Australia. Hence Howard considered he should remain in legal limbo in Guantanamo. Surely a day of reckoning had to come.
On the positive side, Western democracies are able to self-correct for these failures. It took many years, but eventually Mori was able to (with the help of many other campaigners) turn around public opinion in Australia. This led to John Howard becoming more proactive in getting Hicks back.
As I read through all the legal contortions of Hick’s “journey” it was Kafka’s The Trial that kept coming to mind: a never ending series of dead ends. This was a five year nightmare that could have ended much sooner. Time and money could have been spent so much more productively.
In The Company of Cowards: Bush, Howard and Injustice at Guantanamo, by Michael Mori. Published by Allen Lane. ISBN: 9780670077854 RR: $29.99
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