pageok
pageok
pageok
"The Vindication of Major Mori":

David Luban has an interesting post at Balkinization on the plea bargain of David Hicks and the controversial defense strategy of Major Michael Mori.

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.

For more commentary from various perspectives on the Hicks plea bargain and sentence, see the AIDP blog.

John (mail):
Surely there is a distinction between stirring up sympathy for one's client and violating the rules that govern one's conduct. I would have thought Mori could have accomplished the former without the latter. If he did violate those rules, he should bear the consequences.
4.7.2007 11:35am
AppSocRes (mail):
I have to agree with John. The Major is an officer in the Army and subject to Army discipline. If he violated military law and/or disobeyed a direct order, he should be punished.
4.7.2007 12:39pm
AlanDownunder (mail):
John,
Mori's objection - shared by plenty - was with the rules. A just prosecution calls for defence by the rules. This political prosecution called for a political defence, as evidenced by a spectacularly political plea bargain.
4.7.2007 12:47pm
John (mail):
Alan,

Well, I think any one is entitled to challenge rules.

But if, form the many avenues available, you do it by disobeying them, you get to challenge your court-martial later.
4.7.2007 1:25pm
neurodoc:
First, it should be noted that Luban is clearly other than a "neutral" legal analyst/commentator. He intersperses his personal political opinions throughout his discussion of this matter. (The scare-quotes at the start and Luban's explanation of their use; "alternate universe"; "Mori was not involving his country in confusion [that's the Bush administration's job]"; etc.)

Second, he fails to do an adequate job comparing/ contrasting the "rules" for defense attorneys who are civilians and those who are active duty military. ("That's the ABA Model Rule, but essentially similar rules govern lawyers, including military lawyers, in every jurisdiction.") Is there more than one "jurisdiction" for military lawyers, who only defend clients in military proceedings? What exactly is/are the "rule"/"rules" that pertain to military lawyers doing defense work? Luban recognizes there are differences ("...only military lawyers face criminal prosecution for denouncing high government officials"), and that the differences may be consequential ("Mori's representation would have been 'materially limited' compared with what a civilian lawyer could do on Hicks's behalf."), but he doesn't further develop an issue central to "the vindication of Major Mori.")

And what 1L couldn't quickly and effectively distinguish Dratel's circumstances from those of Lynne Stewart? (a quick expression of my own personal political opinion - Stewart was not sentenced to nearly enough jail time.) Dratel balked at signing that statement and binding himself because there was the possibility of "new" rules coming into effect later; Stewart knew the "rules" when she pledged to respect them, then made a conscious, well-informed decision to violate them big time.

For better or worse, the military is different. Things may be required of professionals in the military they would not do in civilian life, perhaps would not be permitted to do in civilian life. For example, one has lesser expectations of confidentiality in military health care than in civilian health care, and military medical officers may under some circumstances be required to "rat out" their patients while their civilian counterparts might be subject to sanctions for doing so. Luban is entitled to his opinion about the desirability or propriety of those differences, but it is the analysis of those differences and their consequences that is of real interest. How can one pronounce Major Mori "vindicated" without engaging in such analysis other than by saying that Mori, whether by means proper or improper ("political" campaigning on Hicks's behalf in Australia?), obtained for Hicks a better outcome than Hicks might otherwise have gotten?

(BTW, does Balkinization generally lean Left in the same way that the Volokh Conspiracy leans Right or libertarian?)
4.7.2007 1:38pm
neurodoc:
Mori's objection - shared by plenty - was with the rules. A just prosecution calls for defence by the rules. This political prosecution called for a political defence, as evidenced by a spectacularly political plea bargain.

AlanDownunder, thank you for giving us your Aussie perspective. Do I understanding you to be saying that in contradistinction to a "just" prosecution, Hicks was subjected to a "political" one? If so, does that mean you think Hicks was an innocent lamb whose misfortune it was to be in the wrong place at the wrong time? Do you think Hicks should not have been apprehended and "transported," or is it that you think that after he was apprehended and transported he should have been promptly released to go about his business freely? If not promptly released to go about his business freely, then what? Are your objections more/less about "procedure" than about "substance," that is "justice"? (BTW, do you feel differently about Hicks than you do about those who perpetrated the Bali attack?)
4.7.2007 1:49pm
Bob from Ohio (mail):
"exactly the right one for his client but exactly the wrong one for his country."

There, I fixed that last sentence for him.
4.7.2007 2:00pm
Pub Editor (mail):
AppSocRes,

Major Mori is a Marine officer, not Army.

Of course, the same UCMJ provisions and other rules apply, whatever their effect.
4.7.2007 2:20pm
Random Commenter:
Luban's post makes me uneasy, because he appears to subscribe to an anything-goes interpretation of a lawyer's obligation to represent his client. In particular, he seems to believe it's permissible for Mori to have committed what might have be a crime (adverse public commentary on high Federal officials by a uniformed service member) in pursuit of his client's interest. If that's so, then I am curious where Luban draws the line between acceptable criminal conduct undertaken to support a client and unacceptable conduct. Is anything OK as long as you get away with it?
4.7.2007 2:41pm
Humble Law Student (mail):
Yes, it's poetic justice that a possible terrorist is getting off the hook.

Maybe when (if) we capture UBL mistakes will be made by the administration that leads to him being released. Oh to be so lucky...

Death from within, it's how it always happens...
4.7.2007 5:43pm
Humble Law Student (mail):
neurodoc,

All the contributor's to balkanization are well-known leftists (to use an overbroad generalization). Some like Professor Lederman and Balkin write from a fairly politically neutral perspective and don't try to score cheap points. Others are less restrained.
4.7.2007 5:45pm
AlanDownunder (mail):
Answers for neurodoc:

Do I understanding you to be saying that in contradistinction to a "just" prosecution, Hicks was subjected to a "political" one?

Yes, it's political when coerced evidence is admissible, habeas corpus is denied, charges are retrospective, defence attorneys are required to sign up rules the tribunal may in future make, etc.

If so, does that mean you think Hicks was an innocent lamb whose misfortune it was to be in the wrong place at the wrong time?

I don't know what to think. Due to the predominance of political GWOTting over evidential fact-finding, we'll likely never know.

Do you think Hicks should not have been apprehended and "transported," or is it that you think that after he was apprehended and transported he should have been promptly released to go about his business freely?

False alternatives. Once handed over to US forces by the Northern Alliance, he should have been promptly tried according to law - not Gitmo'd.

Are your objections more/less about "procedure" than about "substance," that is "justice"?

False dichotomy. Correct legal procedure is a precondition for substantive justice. Unless you're nostalgic about Dodge City or lynch mobs, that is.

(BTW, do you feel differently about Hicks than you do about those who perpetrated the Bali attack?)

The Bali bombers killed lots of people (that many were Australian is irrelevant). Hicks killed no-one and, as noted above, his detention, trial and finely-negotiated plea deal could not have been better designed to not shed any light on how I should feel about him. All I know is that he has done 5 years plus in conditions way worse than any prison. On the various scant and hazy "charges" put up, if he was guilty he has done adequate time. If he was not guilty, or barely guilty, he has been grievously wronged. Were he to suicide bomb an Australian mall after his release (unlikely) I'd wonder what deranged him more: his weeks with Bin Laden or his years at Gitmo.
4.7.2007 10:57pm
Random Commenter:
"I don't know what to think. Due to the predominance of political GWOTting over evidential fact-finding, we'll likely never know. "

But of course it's pretty clear you're not being candid here, because your whole post is dismissively critical of the US administration, the legal processing of battlefield detainees, the manner in which evidence is being collected, the conditions in which detainees are being maintained, etc etc. Why not be honest? It's not as though a post that claims Guantanamo is "way worse than any prison" is likely to be taken seriously anyway.
4.8.2007 12:39am
Humble Law Student (mail):
AlanDownunder,

You wrote, "False dichotomy. Correct legal procedure is a precondition for substantive justice. Unless you're nostalgic about Dodge City or lynch mobs, that is."

Umm no. Your argument doesn't work. What is the "correct" legal procedure? All that is required for substantive justice is (usually) some minimum content of procedure.

However, we as a society have found that greater levels of procedure serve certain goals and we therefore afford greater precedural protections in general. But, the fact that a particular level of procedure (above some minimum) wasn't followed, hardly means that substantive justice can't be achieved.
4.8.2007 12:53am
Kevin P. (mail):
AlanDownunder:

I don't know what to think. Due to the predominance of political GWOTting over evidential fact-finding, we'll likely never know.

Oh, don't be so coy. Why not just come out and defend Hicks' right to sign up with the Taliban to engage in jihad? It's not like they ever oppressed anyone or anything.


The Bali bombers killed lots of people (that many were Australian is irrelevant).

Your lack of concern for your fellow countrymen is noted. It appears that your concern is reserved for killers like David Hicks. Maybe he should be handed over to the Indians so they can treat him with tender mercy.
http://www.news.com.au/story/0,23599,21200396-2,00.html
Excerpts:


The American file is consistent with a letter Hicks wrote to his family in Adelaide in which he admits to firing hundreds of bullets in Kashmir at the enemies of Islam.
...
The training camp [that Hicks attended] was run by Lashkar-e-Toiba, the army of the pure, Islamic fundamentalists fighting to free Muslims under Indian rule and designated a terrorist group by Australia in 2003.
...
Australia has an extradition relationship with India as a fellow member of the Commonwealth that could allow the transfer of a suspect in special circumstances.
...
LET [Lashkar-e-Toiba] has waged a brutal insurgency aimed specifically at "destroying" India and "annihilating" Hinduism and Judaism, having proclaimed Hindus and Jews to be enemies of Islam.

It has over the years - including 2000 when Hicks was apparently in action with it - waged a war not just targeting Indian troops in Kashmir, but also rounding up Hindus and Sikhs in the disputed territory and massacring them.


Please spare us the posturing about lynch mobs and the evil Guantanamo Bay detainment center and consider supporting innocent victims of terrorism worldwide instead of scum like David Hicks.
4.8.2007 2:07am
CatCube:
The part I like is that when Mr. Luban says that "Colonel Davis had threatened to press charges against Mori..."

Colonel Davis isn't in Major Mori's chain of command, and can no more swear charges against him than I can.
4.8.2007 10:31pm
davod (mail):
No comment on the fact that Hicks got a better sentence from the Military Commission than our home grown Californian boy got from the civil courts.

Is a defense attorney allowed to lie to support his case.
4.8.2007 10:41pm
ed o:
even better than telling lies, if the attorney has a choice between his country and his country's enemies in a time of war, the attorney can choose the enemy and be lauded for the benefit to the public good from their choice (even if that public good is used to gin up retainers from less than savory middle eastern regimes)
4.9.2007 3:00pm
Xanthippas (mail) (www):
I really appreciate these useful and insightful comments, which I'll quote below:


If he did violate those rules, he should bear the consequences.



and the more more elaborate:


If he violated military law and/or disobeyed a direct order, he should be punished.



Well yes, we all agree that if someone violates military law, they should be punished. The point is, whether criticizing the tribunal process is criticizing the President. Of course, to those on the right, that's assumed.


In particular, he seems to believe it's permissible for Mori to have committed what might have be a crime (adverse public commentary on high Federal officials by a uniformed service member) in pursuit of his client's interest.


This only sounds less equivocal, but again, it's assumed that criticism of the tribunal process is criticism of federal officials who instigate the tribunal process. Similarly, a soldier who thinks he's fighting an awful war, is not allowed to say so, for that would be criticism of the President and thus, a violation of military law...it is assumed. It would be more accurate to say that it is an offense to the President, and thus his followers, and so worse than a violation of military law.

Of course, at least those guys equivocate. Davod just assumes Mori lied, and ed o believes that representing a client in a criminal prosecution (even one for a terrorist) is working for enemies of the country.
4.9.2007 11:09pm