Balkinization  

Sunday, April 01, 2007

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.

Comments:

The Australian prime minister is John Howard, not John Hicks -- despite how much you admire/lionize him.
 

Okay, so my snarky comment was a bit unfair.
 

No it was simply stupid. The post and the compliments were not about Hicks but his lawyer.
 

good eye, humblelawstudent, I didn't even catch that typo when I read the post.

By the way, thanks for a fascinating post, Professor Luban. Things like this are why I come to this blog.
 

Oops! I shall fix the typo.
 

I am unsure why we should be celebrating a defense attorney enabling his client to avoid facing the evidence against him through a marketing campaign ending with a political fix plea bargain.
 

Dear David,
Thanks for this fascinating insight in the ethical intricacies of defending your client within the Gitmo system without accepting the monstrosity of Gitmo itself. In this regard, I ask myself whether, upon the return of Mr Hicks to Australia, his lawyer should not demand his immediate release, because his confession was clearly coerced and because the Gitmo proceedings do not meet minimal judicial standards (or, in the words of Mr Depalma, "political" also on the government's side). I also wonder, however, whether this might risk another prosecution "down under". Some comments for a continental lawyer would be helpful.
Thanks!
Andreas Paulus
 

Excellent post, and it reminds me of last Saturday's WSJ front-page article on Lt. Col. Stuart Couch, who asked to be relieved from his assignment rather than prosecute an alleged 9/11 plotter who'd been tortured & abused at Gitmo.

Because it was a Saturday, and b/c it was in the WSJ, I'm afraid that article isn't going to get much attention. Andrew Sullivan has picked it up, fortunately.
 

What about it, Bart and HLS? This is one time I would expect you to be as outraged as I am.

If Hicks is guilty and as dangerous as has been alleged, our government has agreed to unleash a murderous terrorist onto the world in hopes of tipping the Australian elections. If he is innocent, or if he is small fry and no real danger, he has suffered five years of detention and abuse to no purpose.

Either way, our government seems more interested in hushing up its own misdeeds than either keeping us safe or serving justice.
 

I'm ambivalent about this deal. In all the statements that have been made public, Hicks has shown himself to be a worthless, hateful man, knowingly breaking the law in his own country and taking arms up (even if he didn't technically use them) against ours. I'm very dubious that the statements made before his captivity were coerced, and they're damning enough for me.

On the other hand, I agree with David that it demonstrates the tenacity and professionalism of Major Mori. That's the kind of guy you want representing you, and hopefully his reputation can be leveraged into a sweet post-military career.
 

"Bart" DePalma:

I am unsure why we should be celebrating a defense attorney enabling his client to avoid facing the evidence against him through a marketing campaign ending with a political fix plea bargain.

It was your maladministration that engineered the plea bargain so they wouldn't have to trot out the evidence against Hicks (or lack thereof).

Suck it up, "Bart". Your idols went for the cheap "win".

If you check out the other Hicks thread a couple below, folks that are up on the laws of Oz are suggesting that Hicks, stoopid though he may be, might be released by the courts in Oz despite his plea bargain agreement. I'd think that he might best shy away from trips to the U.S. afterwards though....

Cheers,


Cheers,
 

PMS_Chicago:

On the other hand, I agree with David that it demonstrates the tenacity and professionalism of Major Mori. That's the kind of guy you want representing you, and hopefully his reputation can be leveraged into a sweet post-military career.

Yes. "[P]ost-military". Because after what they did to Lt. Cmdr. Swift, that's the next stop on his professional train....

Cheers,
 

Great post.

David Hicks is somewhat of a hero in Australia for precisely those reasons.

PMS Chicago

"Hicks has shown himself to be a worthless, hateful man, knowingly breaking the law in his own country"

I won't quibble with the first part of that statement, but the fact is that Hicks did nothing wrong under Australian law and the Australian Government refuses to apply retrospective legislation to achieve a conviction. This is the main reason the Government was happy to leave him in Guantanamo as has been openly admitted by Howard on numerous occasions.

The blatantly political maneuvering around the detention of Hicks and his abadonment by the Australian Government has made many Australians very angry indeed and with a Federal election approaching at the end of this year, Howard is moving to plug the hole that the issue has created.

There have been suggestions that an appeal may be lodged on his return to Australia given that he has still committed no crime under Australian law, but astute obsevers here have pointed out that the lenient sentence is precisely to avoid a politically damaging appeal taking place during a Federal Election. Hicks is timed to be released just after the elections take place and has a gag order preventing him from speaking to the media for an additional 3 months.

It's so extraordinarily transparent as to be almost laughable.
 

Enlightened Layperson said...

What about it, Bart and HLS? This is one time I would expect you to be as outraged as I am.

If Hicks is guilty and as dangerous as has been alleged, our government has agreed to unleash a murderous terrorist onto the world in hopes of tipping the Australian elections. If he is innocent, or if he is small fry and no real danger, he has suffered five years of detention and abuse to no purpose.


I am too cynical about plea bargains to be outraged about the Hicks deal.

I think we essentially share the same point of view. We both want him to face whatever evidence there is against him.

Where we differ, I think, is that I do not consider material support for mass murderers to be "no real danger." Terrorists cannot operate without a network willing to provided material support. The latter are as guilty as the former.

Either way, our government seems more interested in hushing up its own misdeeds than either keeping us safe or serving justice.

How do you figure?

Hicks has been making various claims against the United States through his attorneys to the press for months now.

When he gets released in Australia next year, I expect the usual ghost written book along with a media tour pitching how the poor man lied when he pled guilty, was actually in Afghanistan as a "tourist," and was "tortured" by the US into admitting that he was running with the Taliban.

This deal is being cut because a close and loyal ally has requested it. It is hardly in the interest of the United States.
 

I won't quibble with the first part of that statement, but the fact is that Hicks did nothing wrong under Australian law and the Australian Government refuses to apply retrospective legislation to achieve a conviction. This is the main reason the Government was happy to leave him in Guantanamo as has been openly admitted by Howard on numerous occasions.

My bad. I had thought that Lashkar-e-Toiba had been classified a terrorist group prior to Hicks' capture. Thanks for the correction!
 

Andreas Paulus writes: In this regard, I ask myself whether, upon the return of Mr Hicks to Australia, his lawyer should not demand his immediate release, because his confession was clearly coerced and because the Gitmo proceedings do not meet minimal judicial standards (or, in the words of Mr Depalma, "political" also on the government's side). I also wonder, however, whether this might risk another prosecution "down under". Some comments for a continental lawyer would be helpful.

I haven’t actually seen the plea agreement or the transcript of the hearing, but the accounts by the ACLU (http://blog.aclu.org/index.php?/feeds/index.rss2) and Amnesty International (http://www.amnestyusa.org/document.php?lang=e&id=ENGAMR510552007) both state that Hicks’s admissions to the facts in the plea were admissions “either that he believed and admitted that the elements accurately described what he had done or that the allegation could be proven by the prosecution beyond a reasonable doubt” (AI). In other words, they were like what in U.S. procedure would be called an “Alford” plea (after the Supreme Court North Carolina v. Alford): an admission that the government’s case is strong enough for a conviction, but not an admission of the truth of that case. (In the original case, Mr. Alford said to the Court “I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.” 400 U.S. at 29. The Supreme Court held that Alford’s guilty plea was voluntary, although three Justices dissented.) I don’t know whether Australia has a procedural device analogous to the Alford plea, but if not, I should think there is substantial reason to suppose that under Australian law it was coerced. Worse: Hicks said that the strong evidence against him that he had seen consisted of interrogation notes of other US prisoners. That might be evidence obtained by torture or lesser forms of coercion, and it might be either inadmissible or unreliable or both. So it seems to me that Hicks might have good grounds to demand immediate release in Australia. As to your second reason (that the Gitmo proceedings do not meet minimal judicial standards), that strikes me as less likely, because Hicks’s guilty plea means that the “standards” of military commissions have not yet been tested.
 

Bart says:

"I am unsure why we should be celebrating a defense attorney enabling his client to avoid facing the evidence against him through a marketing campaign ending with a political fix plea bargain."

Zealous representation, etc. Surely you understand what the rules of professional conduct, and the highest traditions of our profession, require of criminal defense attorneys. You may not like the outcome for political reasons, but no sentient lawyer can do anything but applaud.
 

burnspbesq:

You may not like the outcome for political reasons, but no sentient lawyer can do anything but applaud....

Here, let me explain this all....

Cheers,
 

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