The Vindication of Major Mori

David Luban

David Hicks is going home to Australia to serve a "short" sentence arranged in a plea bargain – seven years, with all but nine months suspended. (The word "short" is in scare-quotes for one reason only: Hicks has already served five years in Guantanamo, and the U.S. government insisted in the deal that Hicks’s sentence must not count this as time served. One can only speculate about the reasons for this insistence. Presumably, it’s because the U.S. maintains that Guantanamo detention is not punishment for a crime, but rather immobilization of enemy combatants. Counting it as time served might muddy that theory. Far better to keep Gitmo-time locked up in the alternate universe it’s always been in.)

The plea bargain, we now learn, was based on a political deal between Australian prime minister John Howard, who is hurting politically because of Hicks’s prolonged detention, and Dick Cheney. Part of the deal requires that Hicks not speak with reporters for a year, three months after the next Australian election.

The deal was negotiated between Hicks’s military lawyer, Major Michael "Dan" Mori, and Susan Crawford, the head of the military commissions. Excluded from the discussion was the prosecutor, Colonel Morris Davis, who learned about the deal only when the plea papers were presented to him Monday morning, and who was far from pleased with the result. "I wasn’t considering anything" – any sentence, that is – "that didn’t have two digits."

This outcome seems like poetic justice, because the result spectacularly vindicates Maj. Mori’s decision to go to Australia to try to arouse political indignation about Hicks’s imprisonment – and Colonel Davis had threatened to press charges against Mori for violating a military-law prohibition on speaking disrespectfully of high U.S. government officials. Mori didn’t back down, and we now see that his tactical decision to focus on political sentiment in Australia was exactly the right one for his client.

In the ethics folklore of the legal profession, the criminal defense lawyer’s singular devotion to the client’s interests is one of the most deeply held beliefs. Even critics of the adversary system and adversarial ethics usually make an exception for the criminal defender. (I should disclose that that’s my position, in my book Lawyers and Justice.) In criminal cases, the lineup is"the state" or "the people" or "the Queen" against the defendant. In the usual understanding, the defendant’s lawyer is his sole protection against Leviathan, and zealous advocacy by defense lawyers is a crucial protection against the abuse of state power. William Simon has argued that in most criminal cases the "Leviathan" rhetoric is overblown – see his terrific book The Practice of Justice – but it obviously is not overblown in the Hicks case. The classic expression of the defender’s role comes from the nineteenth-century barrister Lord Henry Brougham, who was defending Queen Caroline against King George IV’s charge of adultery. In the course of the defense, Brougham said:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.

Mori was not involving his country in confusion (that’s the Bush administration’s job) – but in his Australian tour he pulled no punches in denouncing the military commissions and charging that they are rigged for conviction. Those charges were the basis for prosecutor Davis threatening Mori under a rarely-used law forbidding military members from expressing contempt for civilian leaders. (For a sampling of Mori's statements, see pages 14 and 15 here. It seems to me that they come nowhere near violating the statute - essentially they are directed at the commissions, not at personalities.)

Judge for yourself if Mori made the right tactical call. We now know that the political pressure on John Howard was the key factor that resulted in a favorable outcome for Mori’s client.

Perhaps lost in the shuffle by the plea-bargain is the remarkable ethics battle leading up to it. Whether Davis realized it or not, if his threat to prosecute Mori for excess lip on his client’s behalf had been taken seriously it would have required Mori to disqualify himself for a conflict of interest – and so would every military lawyer defending a client before a military commission. Lawyers are forbidden from taking cases in which their own personal interests – in this case, the interest in avoiding prosecution – prevent them from taking actions on behalf of their clients that other lawyers could lawfully take. (It's a disqualifying conflict of interest if "there is a significant risk that the representation of one or more clients will be materially limited by...a personal interest of the lawyer." That's the ABA Model Rule, but essentially similar rules govern lawyers, including military lawyers, in every jurisdiction. Of course, lawyerly zeal on behalf of clients is limited by law - lawyers can't bribe jurors or bump off witnesses. But here the point is that only military lawyers face criminal prosecution for denouncing high government officials. Mori's representation would have been "materially limited" compared with what a civilian lawyer could do on Hicks's behalf.)

Instead, Hicks’s defense team moved to have Davis disqualified for violating a provision of the Military Commissions Act that states: "No person may coerce or, by any unauthorized means, influence... the exercise of professional judgment by...defense counsel." Military Commissions Act, section 949b(a)(C).

So far as I know, the military judge never ruled on this motion. [I’d welcome correction if anyone has better information.] Instead, bizarrely, Hicks’s civilian lawyers were tossed off the case – one because of a technicality in her manner of appointment, and the other for a reason that would have involved him in a conflict of interest. Joshua Dratel refused to sign a statement attesting that he would abide by all the rules of the military commissions – including rules that do not yet exist. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained.

Well, yes. What if the as-yet-to-be-issued rules improperly impeded Dratel’s ability to defend Hicks? If he violated them, he would be open to prosecution for the felony of making a false statement to the government when he signed the statement saying he would abide by the rules. (18 U.S.C. 1001.)

Farfetched? Not at all: false statements was one charge in the indictment against Lynne Stewart, when she violated prison rules after signing a statement saying she would abide by them. After Stewart’s prosecution, no defense lawyer in his or her right mind would sign the statement Dratel was asked to sign.

So the judge bounced Dratel from the case. That left Mori to put the finishing touches on the plea agreement, while Colonel Moe Davis found himself, at least temporarily, relegated to the alternate universe of Guantanamo, where law as we know it does not exist. Dan Mori should permit himself a smile.
Posted 10:02 PM by David Luban [link]