Hicks is a 31-year-old Australian convert to Islam who was "captured"
by US forces in Afghanistan. Actually, he was “sold” by warlord bounty
hunters to the American military. Mr. Hicks has rotted in the prison
at Guantanamo Bay for five years without charge, without trial and
without conviction. Until recently, Australia's conservative prime
minister, John Howard, was content to leave his compatriot to rot in
an American prison camp.
Now, the Australian people are up in
arms . . . livid at the US and livid at their own prime minister
because Mr. Hicks' case has taken so incredibly long to resolve.
Australians are livid because Mr. Hicks' military defense counsel,
including Major Michael Mori, Mr. Hicks' family and a determined
campaign by Australian activists, have managed to put David Hicks in
the Australian spotlight.
In the beginning, the United States was prepared to try Mr. Hicks on
charges of conspiracy, aiding the enemy and "attempted murder".
However, when he was
finally formally charged on March 2nd 2007, all of the
original accusations were dismissed for lack of evidence... except
for a new charge of providing "material support for terrorism".
This "crime" did not even exist when Hicks was "arrested" by the US in
2001. The charge was "invented" by Congress in 2006, five years after
Mr. Hicks was sold by Afghan warlords as an “enemy combatant.”
Justice for All?
We should harbor no illusions. Mr. Hicks is not exactly a Gandhi-like
Mr. Charisma. He is a "kangaroo skinner" who some Aussies have
colorfully described as a
"ratbag". But the Australians are rallying to his defense,
nonetheless, because, as people down under have noted, even "ratbags"
deserve a fair and prompt trial. In American jurisprudence, too, the
concept of “justice for all” was once, at least, a theoretical
core principle of law, even for “ratbags.”
Meanwhile, Hicks' military defense lawyer, Major Michael Mori, has
been aggressively trying to get the "new charge" dismissed. He has
criticized the process, the retroactive nature of the crime and the
entire military tribunal system -- in the United States, in Australia
and in front of the media.
What is the reaction of the US Army?
It is now threatening to charge Maj. Mori with a
criminal violation of Article 88 of the military code of conduct; that
is, using "contemptuous language" about the President, Vice President
and Secretary of Defense. If court-martialed, Major Mori could be
busted in rank and imprisoned for defending his client in a way that
the Army does not like. In the meantime, the Army's threat to
prosecute the defense lawyer for defending his client aggressively has
conflict of interest -- Maj.Mori now cannot defend his
client without worrying whether, in doing his job too well, he, too,
could end up in prison. Thus, Maj. Mori may have to withdraw from
representing his client, another defense lawyer may have to be
appointed and the time for trial delayed again.
We Have All Been Here Before
All this should sound more than a little familiar. New York criminal
Lynn Stewart was charged, tried and convicted of conspiracy
to support terrorism for making a certain statement to the press while
in the course of representing her client, Sheikh Omar Abdel-Rahman.
In January 2007,
Cully Stimson, a deputy assistant in the Defense
Department, called for a punitive business boycott of civil law firms
whose attorneys provide pro bono legal representation to
And, of course, there is Lt. Ehren Watada, the first US military
officer to refuse orders to deploy to the Iraq War. He has done so for
the highly principled and legally correct reason that the war is
matter-of-fact illegal. Just like Maj. Mori has been threatened with
court-martial under Article 88 of the military code of conduct for
making “disparaging comments,” Lt. Watada was charged with violating
Article 88 , also for allegedly making "disparaging" comments.
Although Lt. Watada's charges were
dismissed as part of a factual stipulation concerning what he actually
said to the press, the Army colonel presiding over the Watada case,
Col. John Head, deliberately provoked a mistrial in February by
refusing to accept the stipulation. Now, all of the original charges
have been re-filed against Lt. Watada, including those that had been
dismissed as part of the original stipulation. Thus, Maj. Mori,
defense counsel for Australian David Hicks, could soon join Lt. Watada
in the Army's criminal dock for daring to voice criticism of a war and
system of injustice which are patently illegal and unconstitutional.
Neither Lt. Watada nor Maj. Mori are “ratbags”. However, the US does
have its own "ratbag" who has been jailed for years without trial:
Jose Padilla. Mr. Padilla, like David Hicks, was also threatened with
highly exaggerated and inflammatory charges which, ultimately, were
unceremoniously dropped. We remember the lurid "dirty bomb" allegation
against Mr. Padilla that the puritanical ex-Attorney General John
Ashcroft trumpeted to the pandering press as though he had personally
Lex Luthor's diabolical plan for nuclear Armageddon.
Naturally, the “dirty bomb” charge against Mr. Padilla was dropped for
lack of evidence, just like the ballyhooed conspiracy and attempted
murder charges against David Hicks were eventually discarded. Now,
Padilla faces charges very similar to those laid against Mr. Hicks --
aiding and abetting terrorism. This, after having spent 3 1/2 years in
solitary confinement without charge and subjected to daily
"interrogations", deprivation, psychological and physical abuse.
Where's the Outrage?
David Hicks is an Australian whose fellow citizens are loudly outraged
at his treatment by the United States. Mr. Padilla, by comparison, is
a United States citizen whose own government has held him for years
without charges, in solitary confinement and without trial... with
very little outrage by his American citizens.
There is outrage in Australia that the US Army would threaten to
criminally prosecute David Hicks' defense counsel, Maj. Mori, for
making “disparaging comments” about the Bush Administration. There is
far too little outrage in the United States, however, that the US Army
has made such a threat.
There are scores of American presidential wanna-bes now running for
office. Not one of them, neither Democrat nor Republican, breathes a
word about the travesty of justice represented by Mr. Padilla and Mr.
Hicks, Maj. Mori and Lt. Watada. But why should the candidates take
positions when we, ourselves, do not force the candidates to take
unequivocal stands on significant issues?
In Australia, by contrast, the citizens AND politicians --
conservative and liberal alike -- have rallied to the cause of its
local "ratbag" because they support the principle that everyone is
entitled to a fair and speedy trail. They are demanding that the farce
of the military "tribunals" in Guantanamo be immediately aborted and
their "ratbag" be brought home to Australia where he can be
treated like any other Australian in the Australian court system, and
not turned into a freak show in an American political circus.
The Real Crimes Against Law and Justice
The real crime of Lt. Watada is that his courage in speaking the truth
threatens a breakdown in military order, that is, the strict
discipline that requires subordinates to keep their mouths shut and
just do what superiors tell them to do. For what the Army fears far
more than protest marches, more than letters to editors or to
Congress, and more than roadside bombs in Iraq, is the corrosion of
the military mind-set of top-down authority. That corrosion ultimately
led to the disintegration of the military in Vietnam.
The real crime of Maj. Mori, of the pro bono Guantanamo defense
lawyers, and of Lynne Stewart is that they take seriously their
obligations as attorneys to zealously represent high profile,
unpopular and controversial defendants.
The real crime of Messrs. Hicks and Padilla is precisely that they are
“ratbags.” What they have allegedly done is far less important than
who they are and how they can be presented to the public as unsavory
archetypes by aggressive PR campaigns. They are among the poster
children, not just for the Global War on Terrorism, but the also the
war on the American system of jurisprudence.
Since the days of the Reagan Administration, big business, religious
and social conservatives have embarked on a campaign to turn back the
clock on the basic tenets embodied in the Bill of Rights and
elucidated primarily during the Supreme Court tenures of
William O. Douglas and
Thurgood Marshall. The object of the campaign is nothing
less than to subvert the concepts of equal justice under law and
concepts of fair play. It is a campaign to return to the bad days of
Jim Crow; a campaign to recreate the prejudices of race, religion,
poverty and privilege as they have traditionally existed before the
With the blessing of the Administration, the American public
has been intentionally bombarded with mind-numbing images and
stories about torture, indefinite detention without charge, unlawful
wire taps, secret prisons, CIA kidnappings, terrorism, terrorism and
more terrorism. Mind-numbing is the key concept.
United States and
Israelare engaged in publicly, proudly acknowledged
campaigns of “targeted assassination” of people they deem to be
“terrorists”, never mind the minor “details” of evidence or trial or
the “collateral damage” of murdered innocent bystanders.
The debate on torture has been turned into a discussion about how
effective it is, not whether it is morally repugnant.
Even the debate about wire-tapping in the United States has somehow
turned on the proper protocol for obtaining search warrants
issued by the
Foreign Intelligence Surveillance Act (FISA) Court -- a
secret tribunal with mysterious and unknown judges who consider
undisclosed evidence and that is hardly prone to deny a government
request -- as though this satisfies the open administration of
justice. And what happens should someone, perchance, survive the
kidnapping, drugging, beating, isolation, sensory deprivation and
torture, and seek redress in the courts? The courts may dismiss the
lawsuit out-of-hand because allowing the case to proceed could reveal
“state secrets” that are the very issue on trial.
This, then, is a campaign to inure the public to a lower standard of
justice. The point is to habituate Americans to injustice for “ratbags”,
to desensitize Americans to compassion and rationality. The point is a
counter-reformation in jurisprudence, the re-establishment of a
barbarous old world of summary detention, public flogging, and public
execution for those who transgress the royal will.
Australia was once a British penal colony. Its people still understand
that even “ratbags” -- indeed, especially “ratbags” -- are
entitled to equality, openness and fairness before a court of law.
Similarly, the United States is a nation of oppressed indigent
peoples, refugees, debtors, former slaves, immigrants and descendants
of immigrants -- a rag-tag collection of tired, poor, wretched refuse
yearning to be free in the land of the
Mother of Exiles. Somehow, too many Americans have
forgotten who they are and what they were. Too many Americans believe
that they are immune from the iniquities of injustice because they are
“better” than the “ratbags”. All Americans should realize, however,
that the evisceration of anyone's legal and human rights ultimately
leads to the evisceration of everyone's legal and human rights.
That defines tyranny. And in the eyes of those who would rule
tyrannically, we are all “ratbags” now.
can be reached at:
Zbig@ersarts.com. This article is CopyLeft, and free to
distribute, reprint, repost, sing at a recital, spray paint, scribble
in a toilet stall, etc. to your heart’s content, with proper author
citation. Find out more about Copyleft and read other great
www.ersarts.com. copyleft 2007.