USA v David Hicks: Dan Mori

It's 2003. An Australian man is captured by US forces in Afghanistan and imprisoned at the US military prison at Guantanamo Bay, Cuba, on terrorism charges.

The prisoner's defence lawyer is a United States Marine Corps lawyer named Dan Mori.

He's about to be thrust onto the world stage in a fight against his own country's military and political establishment.

(Update: The US government has revoked a plea deal with the men accused of plotting the 9/11 terrorist attacks, Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin Attash and Mustafa Ahmed Adam al-Hawsawi.)

Show Notes

Guest: Dan Mori, Legal Consultant, Shine Lawyers; LtCol, U.S. Marine Corps (Retired)

Case: David M. Hicks v United States of America, CMCR 13-004 (2015) (PDF)

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (PDF)

Sworn charges: Providing Material Support for Terrorism; and Attempted Murder in Violation of the Law of War" , Military Commissions: David M. Hicks. US Department of Defense (1 March 2007) (PDF)

Transcript

James Pattison: An Australian imprisoned overseas. He's at the mercy of our most powerful ally, the United States. Solitary confinement. Deteriorating health. Stuck in legal limbo. Years of legal proceedings and mounting public outrage. And finally, a deal is struck. Now, Melissa, this might sound like the Julian Assange case, but it's not. As you know, before Assange, there was David Hicks. 

Montage Archive Audio: David Hicks was imprisoned after being captured in Afghanistan. The Adelaide man branded a terrorist and jailed in the US military's notorious Camp Hicks raid. States like these and their terrorist allies constitute an axis of evil. The first strike against terrorism is a missile barrage lands on Afghanistan.

Montage Archive Audio: Either you are with us Taliban claims Osama Bin Laden was unhurt in the raids. Or you were with the terrorists. The world waits for the next move.

Melissa Castan: James, this story takes place against the backdrop of the US led invasion of Iraq and Afghanistan. It's a post September 11 world. The Bush administration's war on terror is raging, and Australia is in lockstep with the USA. The year's 2003, and a little known American lawyer is soon going to become a well known face across Australia.

James Pattison: And we both remember this face really well, right? And I'm sure a number of our listeners will too. 

Melissa Castan: But some of our listeners might not have heard of the David Hicks case, or the role that our guest today played in it. 

James Pattison: They mightn't have been born. 

Melissa Castan: True. 

James Pattison: This is going back a little bit. Dan Mori was David Hicks's US Military Lawyer. Dan is now a consultant with Shine Lawyers based in the United States. Dan Mori, welcome to Case in Point. 

Dan Mori: Thanks for having me. 

James Pattison: Dan, we're going to wind back the clock, uh, and, and meet you, a younger Dan, um, in a time before everything got crazy, pre 2003. Can you introduce us to Michael Dante Mori? Who was this guy? Who was this young man at that time? 

Dan Mori: Oh, he was young and fit. You know, uh, I was a Marine Corps, uh, lawyer at the time. I was living in Hawaii. Um, I had probably one of the best jobs, uh, that I had. I was the head prosecutor for Marine Corps base Hawaii. And, um, you know, I'd been in the Marines as a, as a lawyer for approximately eight years. Um, when I got that, fateful knock on my door of my boss asking me saying, Hey, I got to put some names in to be a defense lawyer at Guantanamo. Do you want me to put your name in? And little did I know where that was going to take my life for the next four years. 

Melissa Castan: Was this the offer you couldn't refuse Dan?

Dan Mori: Well, I was the off that I never thought was going to actually happen. You know, I, out of the Marine Corps was submitting names to be defense counsel. All the different services were, I thought, you know, what are the odds of me getting picked? 

James Pattison: Those were the odds. 

Dan Mori: Yeah. I was like, I'm, I'm not getting, yeah, I didn't think I'd get it.

Dan Mori: And I thought I could stay in Hawaii, little did I know I was going to be sent to Washington DC and then to Guantanamo for quite some time. 

Melissa Castan: We're going to hear a lot about the U. S. Military Commission System. What is it and what was your role in it before it got worldwide attention? 

Dan Mori: Well, it really didn't exist.

Dan Mori: The last time the U. S. had used the Military Commission System was in World War II. That was the last time there were any Military Commission trials. And it was for some Nazi saboteurs who had come to the United States. Um, and so after these trials, uh, It never was used, um, until the Bush administration resurrected it, um, in 2001, soon after the September 11th attacks.

James Pattison: So did it differ from sort of the, the internal disciplinary proceedings that you see on, you know, a few good men and, and that sort of, that sort of stuff? 

Dan Mori: Right. Do you have JAG? Did you have JAG over there in Australia? Yeah. Right. That was, you know, a few good men. JAG was really, cause it covered, you know, NCIS, right?

Dan Mori: That's all. We have NCIS. The U. S. court martial system, which is completely different than the commission system, um, the court martial system, I think, was, is much fairer than civilian trials. There's much more broader protections, um, of the, of the defendant. Uh, and so, when I thought I was getting involved, And they called it military commissions.

Dan Mori: I thought it was still going to operate just like a U S court martial. Um, I soon found out that that was not the case. 

James Pattison: Do you remember when you first heard the name David Hicks? 

Dan Mori: I was, I'm sorry to go back this far, but I think it was somewhere in June or July of 2003, when I was flown out from Hawaii, I had found out I was selected to be the Marine Corps representative.

Dan Mori: I was still stationed in Hawaii. Um, and I was flown out. To DC to get assigned. And that's why I said, Hey, we're going to assign you to David Hicks, this Australian. Um, and I was sort of happy about that because I'd been in Australia back in the late eighties on a rugby tour. And, uh, uh, I was, you know, and then I was supposed to be assigned to him and then it was stopped, um, because the Australian government was still in negotiations with the U S government.

Dan Mori: Um, and so I went back to Hawaii and ultimately didn't get assigned to Mr. Hicks until November of oh three. 

James Pattison: Do you remember your first meeting with him? 

Dan Mori: Yeah, I was in Guantanamo and in camp X ray, which were these little wooden huts that had been sort of divided in half. Um, and where they were holding the first four people that were going to be charged before the military commission, just a little room with a cell.

Dan Mori: And a shower that's in a, within its own little cell and a, and a little table with an eye bolt on the floor where he was chained to, and I'll tell you a funny thing going the first time I met, I had to go meet my own client. I had to cover up my name tag and your uniform. You got over one of your, your, your best breast pockets.

Dan Mori: You have your name sewn in. I had to cover it up. So when I went in and gave him my own client, I had to cover my name. He could know my name. It was just this sort of foolishness. Because of security, they didn't want detainees to know our names in case we'd become, you know, a target for some terrorist group, but it was ridiculous.

Dan Mori: But it was a sort of Alice in Wonderland world down there at Guantanamo. 

Melissa Castan: So Dan, can you tell us. How did David Hicks end up in Guantanamo Bay? 

Dan Mori: Well, you know, he has written a book and talked about this. So, uh, he got picked up in, in Afghanistan and then sold to the U S military. And imagine this, you know, there's, there's a Taliban force on one side, the Northern Alliance and the U S special forces, the Taliban are surrendering in mass, right?

Dan Mori: Thousands of people. And this small group of U S service members. Have to rely on the Northern Alliance to, you know, who's, who's valuable. Um, and if you couldn't pass yourself off as an Afghani, well, and you spoke English, you were, you know, you were considered a high value, uh, target, high value person. And so, um, because X couldn't speak Urdu or pass himself off as an Afghani, somebody saw him and said, Hey, he's worth cash.

James Pattison: So he was literally sold. 

Dan Mori: Yeah. 

Melissa Castan: Your role, when you met your client, what was your role in the military commission for, for people who don't understand the sort of, um, decision making process and the quasi judicial process, what's your role there? 

Dan Mori: Well, the whole system, right? The whole thing. And you've, from 2000.

Dan Mori: Two, when they had been held, everyone was being interrogated and the prosecution team was set up very early on to figure out who they were going to charge and to create the system and write the rules. And, um, and I think once they identified and had interrogated everybody and thought who they might have that committed a crime, then they said, well, before we can have trials, we need defense lawyers.

Dan Mori: And so then that's where in 03, they started saying, Oh, you know, we need defense lawyers if we want to do any of these trials. And so. You know, I was at, it was advertised to me that I was going to be a defense lawyer. And in my mind, I was going to be a defense lawyer and a military court marshal, which I was competent to do.

Dan Mori: I had never done an, a military commission. I had done study international law intensely. Um, I probably wasn't the best choice for this brand new system. Um, but I went in thinking I'm going to be a defense lawyer. I'm going to follow my emotions and I'm going to treat it like a court martial. 

Melissa Castan: And is that, is that what happened?

Melissa Castan: Is that how it turned out? 

Dan Mori: No, I mean it turned out where really this was, you know, President Bush was the first one to sign his order and then it was turned over to the Department of Defense, um, Mr. Rumsfeld and his general counsel, Mr. Haynes, to create the system. And they created a system which removed Any fair trial protection that you would expect to find in any, any common law court, um, that you're used to.

Dan Mori: And, you know, just take, for example, the right to remain silent. It doesn't exist right in the commissions. You're going to be interrogated until you. You, you cooperated and only after then would they charge you or provide you a lawyer. 

James Pattison: Dan, I'm going to play some audio now of your first press conference that you gave in January 2004, um, in Washington DC.

James Pattison: Um, let's have a listen. 

News Archive Audio: The military commissions will not provide a full and fair trial. The commission process has been created by those only with a vested interest in conviction. The commission's two orders and nine instructions have removed any resemblance.

James Pattison: Pretty strong words from you straight out of the gate. I remember seeing you advocating so hard for your client. Which I know is your role. From the get go, was there any hesitancy that you had about basically arguing against your side? Sides were being taken in the War on Terror. And was there potentially a perception that you were being seen as being on the wrong side?

James Pattison: The wrong side of this. 

Dan Mori: The first decision of what do you as a military officer even talk publicly because as a military officer, he didn't go talk to the media. Right. Um, and so I had to get a lot of advice on it and you're, it's hard to imagine for a lot of people that haven't, you know, they've grown up in the war in terror back that time.

Dan Mori: You know, anybody who said anything against Bush's policies or what the U S was doing was sort of labeled as you know, unpatriotic. But it was something that I truly believed what I said, that this was not a fair system. And, you know, it felt like you had to go on the record ahead of everything, um, to make sure it was known that an Australian citizen wasn't going to get given a fair trial and wasn't going to get given a fair shake.

Dan Mori: You can't, you can't complain about it afterwards. Right. Um, and so it was, that was probably one of the most stressful things I had to do during the whole commission process to talk to the media. 

James Pattison: Was it that very press conference that we've just heard was What was, what was the feelings of standing up there for the very first time in, in DC?

Dan Mori: I remember, I remember being down in our office and it was up one level and, uh, the other defense lawyers were lined up at the door, go shaking their head. Like, are you sure you want to do this? This isn't a good idea. Um, just because didn't know what there were, the government's response was going to be to somebody in uniform, um, that they, the, you know, the administration couldn't label as unpatriotic, taking a strong stance against the system.

James Pattison: I mean, we, we sort of jokingly refer to these as CLMs, career limiting moves. And did you have a sense of, of that, you know, it was, was it that serious that this could be some repercussions for you? 

Dan Mori: I knew people were going to wonder why is this military officer talking in the media and saying these things that Seeing someone in uniform saying something contrary to the press conferences that Rumsfeld, um, Mr.

Dan Mori: Haynes, the people controlling the commission process had been out there before talking about what a wonderful system it was. Um, I knew it wasn't going to be looked on favorably, but once. There was a rational reason to do it and was it going to benefit my client and then you had to do it 

Melissa Castan: Dan How was the response from your colleagues in the office and from other people in the legal sector?

Dan Mori: Well, it's funny Like I said in my that when I walked up to that press conference, they were shaking their heads in this might not be a good idea, but once I did it and And the black vans didn't show up and take me away. They, they soon saw that there was, you know, it was okay to speak your mind. I had to get permission from the, I, before I did that press conference, I had to request permission to, to, to talk to the media and, and I asked permission to give the defense perspective on the fairness, um, of the process.

Dan Mori: And so that was a pretty big hole I could drive pretty much anything through. 

James Pattison: So Dan, let's, let's look at David Hicks. Thanks. Thanks. In Guantanamo Bay, you've described meeting him for the first time. What were some of the conditions that he was held under? And, and as time went on, how is he being treated?

James Pattison: What were some of your concerns? 

Dan Mori: Well, when I first, my first concern was making sure he was getting proper food. And, uh, that was a big thing that we pushed for. The whole team did initially was to make sure he was getting the proper meals. Um, uh, you know, he was not being allowed to go outside and exercise during daylight.

Dan Mori: It was those sort of, uh, basic. Um, human conditions that we had to address when we first got involved, his defense team got involved and, um, you know, we had a lawyer from Australia, we had a civilian lawyer from the U. S. and that was probably the number one thing to deal with. And normally you're not dealing with that with a criminal, you know, you're not dealing about your, your, your client is getting properly fed, but that was something we had to do.

Dan Mori: Um, You know, for the first six months that I was there, he wasn't allowed out during sunlight, which was just, I don't know why that happened. Um, and his, and the conditions changed over time. He was in those, the huts, he went to an open air cell, then he went to a solitary confinement, um, complete solitary confinement, the new sort of maximum security prisons they built there.

Dan Mori: So the conditions changed over time, got worse, got better, um, but we had to do a lot of advocating to help, to try to improve his conditions. very much. 

James Pattison: Did he ever, did they ever extract any, you know, confessions from him with their, with their torture, was there, well, at least they were calling it enhanced interrogation, I think at the time.

James Pattison: You know, he wrote an 

Dan Mori: affidavit in the British, uh, court system that we went through describing it all. Um, you know, The one thing is, he wasn't, he didn't hate Americans, right? He didn't, he didn't hate Americans. They didn't need to use any enhanced interrogation techniques. They should never have done it, um, because it wasn't necessary.

Dan Mori: It was cooperating, um, but I don't think the system ever saw that. They, they used the same techniques as they used against everyone there. Um, food was a big, a big weapon to use to control people. Deprive them of food, calorie intake. If you're cooperating, you get more food. If you're not, you lose more food.

Dan Mori: And that was one of the basic things they used. Um, you know, where you, when you were allowed to exercise, loud music, uh, and this type of thing, but, um, nothing, you know, you see what happened to the, The people who were waterboarded in that extreme was horrific. It was, it was definitely an environment that was controlled by military forces and the interrogators.

Melissa Castan: Dan, there's a couple of Supreme Court decisions in 2005 and 2006 that had the potential to upend the whole military commission system and, and therefore affect your client's case. What happened in Russell and Bush and Hamdan and Rumsfeld? 

Dan Mori: Russell The Bush, which was decided, if I'm remembering correctly, June of 04, and that was the first case that allowed detainees to even challenge their, their detention in Guantanamo.

Dan Mori: It was very smart on the Bush administration side to pick Guantanamo. And they picked Guantanamo because their argument was U. S. federal courts don't have jurisdiction there. And so federal courts. You can't get involved, neither the detainees can go to a federal court trying to seek their release. So it took almost two years from the beginning of 2002, um, and David Hicks was part of that first group of detainees challenging, um, in the U.

Dan Mori: S. federal courts to even get access to the federal courts. So in 2004, Supreme Court says yes, but all they say yes to is, You can go back and start over and file your claim, uh, your challenge to the commission process and your detention at Guantanamo. And then Hamdan was a challenge to the commission process.

Dan Mori: Um, and again, that took almost two years to get to the Supreme court till June of 2006. And all that did was say, Hey, this system that you've set up is, uh, violates the Geneva convention. And as soon as that everyone was really happy in our defense office. Yeah, big win. All it did was Bush got on the news the next day and said, we're going to create a new system and Congress is going to approve it.

Dan Mori: And it's going to start all over again. So neither of those Supreme court cases led to the release of anybody. 

James Pattison: It just slowed things down. 

Dan Mori: It slowed things down and it achieved what the right. The Guantanamo was able to operate for four years. Um, the good news out of it was that you could challenge the system.

Dan Mori: You could at least get into federal court, um, until the Congress passed the military commission act and then, um, and restarted the whole system. I remember after the Supreme court decision and Bush said he was going to, you know, have Congress approve it. It, we just started over and Hicks being charged again in the beginning of 07.

Dan Mori: Um, and they were going to try David Hicks first. 

James Pattison: This Military Commissions Act was passed in September 2006 by U. S. Congress. It, as you said, sort of established a new legal framework for these commissions, really trying to, to bolster their legitimacy. But they, there were criticisms of this new system.

James Pattison: What were some of those criticisms that you had? 

Dan Mori: Well, and some of them were very similar from the old system, right? There was no, there were no rules of evidence. At all, you know, and that was because the government strategy from the beginning is, was to use unsworn statements. Um, what, you know, we commonly talk about hearsay, right?

Dan Mori: They, they didn't want any of those pesky rules of evidence keeping some agent from getting on there and saying, this is what this detainee told me about this accused. And without ever having to bring the detainee or the witness, right? Um, because they were really trying to get a system that was going to guarantee convictions.

Dan Mori: And you do that by making up charges and removing any fair trial protections. And that's what they did. 

Melissa Castan: Dan, I'm just, I'm really struck by what you're describing here and the persistent attempt by the By the American government to sort of cut off any angle of, of the fair trial sort of assumptions that we have, and that are held up in your country and in ours as being the best possible standards for, you know, getting solid convictions based on the evidence, you know, so that you're actually reaching the truth in, in the situation.

Dan Mori: Well, if you think about it and you say the American government, this is really the, you know, well, Bush authorized the use of military commissions. It was Rumsfeld's office. and his general counsel and some of the military lawyers that were initially appointed to create it. And they didn't want to lose.

Dan Mori: Um, but once they, it's like, you know, there were 770 people there that had not been investigated prior to going to Guantanamo, right? These were people that rounded up, brought to Guantanamo and now to say, what crimes did they violate? It's like you randomly went in Melbourne and rounded up 770 Australians and said, okay, now let's figure out which one of these are criminals.

Dan Mori: Right? And so they needed to create crimes that they could charge people with and they needed to create a system that was going to allow them to get convictions. 

Melissa Castan: It just sounds like it's a judicial system turned right upside down. 

Dan Mori: It took me a little while, but I really came to the realization that it was a political system and the charges were, I remember being in my office very early on and saying, you know, I need to learn about this international law and international criminal law.

Dan Mori: And I. What's, what should I look at? Well, I should look at some of the, the rules and statutes from like the International Criminal Tribunal for Yugoslavia, the International Criminal Court. Well, the U. S. wasn't part of it. We wrote the crimes for that. And I remember taking the military commission's charges and looking at these other international tribunals that were set up to deal with war crimes.

Dan Mori: And there were three crimes in the commission, you know, book that weren't in any of the other ones. And it was aiding the enemy, material support for terrorism, conspiracy, because, uh, in this attempted murder, murder by an unprivileged belligerent that just didn't exist because they weren't war crimes, but they had to create these crimes.

Dan Mori: Um, and basically try to criminalize you being on the other side. 

James Pattison: And these were the specific crimes that David Hicks was charged with, right? The ones that you've just mentioned. 

Dan Mori: Well, that's, that's the thing I found. There's three that don't match. Guess which ones he was charged with, right? The three that don't match, right?

Dan Mori: And, and it was just, and the people that were creating this stuff, they were smart. They knew, but they They needed, you know, they had their marching orders and they were going to do the best they could to try to expand, uh, international criminal law to capture these people. Um, and, and then, and then they got to set up the, uh, the rules of evidence.

Dan Mori: And it was interesting because it came out maybe a year or so after that the head of Guantanamo said, you know, we don't, we don't record these interrogations. Because defense lawyers might get access to them and then it might become exculpatory at their trials. So, they were, they were not documenting evidence because they didn't want the defense to be able to have access to it.

Dan Mori: And they wanted to create rules to just let in hearsay, uh, and unsworn statements to come in with the hopes that at that time, the highly emotional time following 9 11, that these convictions would just, you know, just happen. 

James Pattison: Did you feel that your client, was getting that cut through in terms of public opinion.

James Pattison: As his lawyer, these are such very clear issues to take with the whole system. Do you think the public was starting to come around to that? 

Dan Mori: Well, the problem was the media, right? It took a while to get the media to be critical and to really look at how the system worked and how it was set up. Um, and you know, Until you're involved with something that the media is reporting on, you don't realize how wrong they get it.

Dan Mori: But I also appreciate the challenge they had to take these very complex issues and cram it into the 600 words that their editor gives them, right? So, uh, I don't want to blame the media for everything, but you know, those rules were there and it had a reporter wanted to read the rules and see that what was going on.

Dan Mori: That should have been an issue very early on. This system is unfair. You have these rules that are unfair. You've got these charges that you made up that don't match any other international criminal court. Um, so it taught, it first began as trying to educate the media on it. Then it was educating the public.

Dan Mori: And really it was the public in Australia that, that, um, finally got behind the goal of getting an Australian affair trial. 

James Pattison: This point that you make about the media, to people who remember the, this number of years that you were David Hicks lawyer, um, they will remember your face because you did no shortage of public advocacy in the media for David Hicks.

James Pattison: I remember, um, so the invasion of Iraq happened when I was in year 12 and I was an, uh, a young law student, uh, when I started seeing your face on the news, like it would be a couple of times a week. It seemed, I remember staying up very, very late, watching you on late line and, um, and advocating for your sitting there in your military uniform and advocating so, so strongly for your client.

James Pattison: I later went on to work in the media and in TV and radio and understand. The power that it has for the public to see someone in uniform arguing for their client. How much time and effort and how much of a strategic focus was it for you to do media? 

Dan Mori: You know, there was the initial press conference and initial media about the system.

Dan Mori: Um, and then I think, you know, once it became clear that this was a political system, the only solution was going to be a political solution. And especially when they started letting the British go. Right. The British government said this system is not, doesn't, is not a fair trial system and we're not going to let our citizens go through it.

Dan Mori: And the Americans said, okay, take them back. And, and that really fired me up a little bit on why was Australia being treated like some second class country relationship with the U. S.? Um, but you had Howard. Who didn't want to take Hicks back. And so, and in Australia, I didn't know that Hicks was going to be a, you know, a headline story for three and a half years.

Dan Mori: But I remember my first trip to Australia and some media being there and I think I, a legal group asked me to do a talk and I think I had like six slides and the place was packed. People were interested. And I, and I was really going to thank the legal community for being the first to really want to what's going on here Um, and then the general public As as different groups got involved yet get up many of the the church groups and amnesty in australia really got involved and Gave me a platform which to educate the public on how unfairly an australian was being treated And, and it was, uh, you know, I think ultimately the resolution we got was because of the public's concern.

Melissa Castan: So Dan, 2007 then becomes quite a big year for your client and 2007 is the year then where the Australian government actually changed over and Howard finished his term and Kevin Rudd became Prime Minister and I'm not sure what the interplay there is. But what were the key factors that led to the decision for David Hicks to accept the plea bargain arrangement?

Dan Mori: Well, to even get right to be the day they called me in there and said, Hey, does your client want to go home in 60 days? Um, that was an easy answer. I get out of Gitmo. That was that was the strategy. How do we get him out of Gitmo? Um, and there were so many people helping, right? In the public arena, Australian Lawyers Alliance brought me out there and had me go around the country and do talks, but it was also so there was the public advocacy, but there was also the legal cases we knew we weren't going to get a fair trial on the commission.

Dan Mori: So we knew we had to fight the commission system in the U. S. federal courts, and we had a law firm in the U. S. helping us do that. We got David Hicks, his British citizenship, and then the British government took it away and we had to fight in British courts, um, to have him keep his citizenship. Um, and we won that.

Dan Mori: In the beginning of 2007. And so a British court was going to look at the commission system. And then we went to Australian federal court and did a habeas action there where the government tried to strike it out. Uh, and, and you're in Sydney and the judge ruled in our favor and was going to have an expedited hearing on Guantanamo and whether or not Howard could have him.

Dan Mori: Should be taken out of Guantanamo. And then all of a sudden, and the public swell was also happening at that time. There were mass rallies and, um, a lot of other people were speaking out. I remember the first, uh, female prosecutor for the Australian defense forces, she came out and saying, condemning the military commission system.

Dan Mori: Um, all the law councils, uh, the law council of Australia had come out, um, had sent an independent observer to the proceedings and had written a very scathing report about the process. And so things were culminating and all of a sudden Cheney was in Australia, I think in February of 07 and a couple weeks later is when we told, hey, does he want to go home in 60 days?

James Pattison: Where was the Australian government in all this before 2007? 

Dan Mori: Well, I, you know, Howard, laid the course and said, you know, we want him to be tried there. We, you know, which was odd because when I first got involved, the Australian government said he hadn't violated Australian law, but we're going to leave him in Gitmo to be tried.

Dan Mori: It seems sort of backwards, right? Um, if he hadn't violated Australian law, why was he still being locked up? Um, You know, I remember, you know, Barnaby Joyce, right? He, uh, he was probably one of the first of the coalition at that time to come out publicly and say, you know, we've got to change direction on this.

Dan Mori: He's outspoken like that, right? I was going to say, he's, 

James Pattison: he is usually the first to come out and say something that runs against the tide of, you know, opinion, either public opinion or opinion within the coalition. Um, yeah, but 

Dan Mori: it took somebody, it took people to, you know, when I always remember that there was a conference, uh, I mean, uh, a presentation I'd done that he had attended and, and afterwards He got in the media and said, we got to change course on this.

Dan Mori: This isn't right. And, and, you know, there was a lot of parliamentarians involved and I would, the Austrian government was great. Everyone I met with in the attorney general's office, AFP, um, within the parliament, local governments, um, were great. I never met Downer. I never met Ruddick and I never met Howard.

Dan Mori: Um, I brought him t shirts, but I don't know if they ever got them. Um, 

James Pattison: What was on the t shirts? 

Dan Mori: Oh, it's Guantanamo Bay security forces from the Marines that guard the fence line. 

James Pattison: Did you, did you send it to them? I went to, when 

Dan Mori: I went to the department, I said, here's a t shirt I brought for Ruddock and 

James Pattison: I hope you got it.

Melissa Castan: That's 

James Pattison: fantastic. This is where we would have made it social media at the time. Cause that would have been a really, really good zinger. 

Dan Mori: I'm so glad there was no social media at the time. Talk about it. It's stressful and that's talking to the media, let alone anytime you're out in public people might be recording you.

Dan Mori: I can't imagine it. But the problem was the position the government took. And I really thought, you know, unless you brought up the homing case, I really thought once the Supreme Court came out in June of 06 and said the commission system violates. the Geneva Conventions, affirmed everything I had been saying, that that was the time Howard was going to say, enough, you know, we stuck with our allies, but at this point, we're bringing our, our, our citizen home.

Dan Mori: I thought that was going to happen, and it didn't, which was disappointing. 

James Pattison: I think your, your sentiment towards the attitude of the Australian government is basically, um, summarised in the title of your memoir from the time, which was In the Company of Cowards. 

Dan Mori: I came up with that title just thinking about, I don't know, I was just thinking about a lot of the people that I was involved with, the people that were going along with this corrupt system because it would benefit them.

Dan Mori: Because this system doesn't happen with a lot of, without a lot of people collaborating, right? It violated the Geneva Convention. There were a lot of people that were supporting it. Um, but there was a lot of people that were willing to turn the blind eye to unfairness just because it would help their career.

News Archive Audio: He was the only Australian held at the U. S. military prison at Guantanamo Bay, Cuba. Qaeda supporter. And now David Hicks is back on Australian soil. Hicks was transferred to a maximum security prison in his hometown, where he'll serve seven more months of his sentence. 

Melissa Castan: So Hicks takes the, the plea deal and he ends up back in Australia.

Melissa Castan: Does that mean your role with Hicks finishes at that point? 

Dan Mori: Yeah. Once Hicks, I was down there for when he flew out. Once he left the island, um, got back to Australia territory. My, my job was, was done for him. Um, And I moved back, went, went back to the Marine Corps. 

James Pattison: And Hicks then went on to serve, part of the agreement was that he would serve the remaining, uh, nine months.

Dan Mori: Seven, six months. I mean, he did two months there and I think six or seven months back in Australia. And then he was out, right? I mean, he was the first detainee that was charged at Guantanamo. They got his freedom. I didn't know that. Right. For him, the quickest way out of Gitmo was going through the trial.

James Pattison: So it was play, play ball, allow. The United States not to lose face. 

Dan Mori: Well, it was, it was survive, right? It was, how do you get out of this detention facility? How do you get out? Um, and when you're getting told you're going to go home in 60 days, that was, that was a, that was an easy answer for me. He needed, to his survival, he needed to get out of there.

James Pattison: We fast forward a few years to 2015 and the U. S. Court of Military Commission review overturns. Hicks conviction. What happened? I mean, this is huge. If you go back 

Dan Mori: to the guilty play, basically they just said, you have to plead guilty to this made up charge. Okay. I knew it was a made up charge. I knew it wasn't a legal charge.

Dan Mori: Um, and I anticipated that sometime in the future it would get thrown out. Right. And so you can sit at Gitmo while you do your appeals challenging it, or you can be free. And, and I think for anybody, you know, their sanity is to get out of there. And ultimately 2015, almost eight years later, it came true and the conviction was thrown out because it was not a valid law of war offense.

Dan Mori: What I've been saying and written motions about in the commission system that they didn't want to hear. 

James Pattison: Was that a surprise to you? That it had happened. You just, you, or you just knew that at some point in the future, this is going to self correct. 

Dan Mori: You know, the good thing about the US, right? I mean, right.

Dan Mori: Only in the United States with the, uh, Department of Defense set up a corrupt, uh, trial system, but invite the world media to come watch it and then set up for, have them at press conferences, right? That's, That's, that's the US, right? That freedom of speech, um, and, and access. So, you know, I knew the court systems would take some time, um, correcting the problems.

Dan Mori: Um, and it took eight years, but, uh, you know, it took four years just to get the Supreme Court to that first decision on the system. And then another, you know, almost nine years from them. But to me, that was the right decision. And I suspected that from the very beginning, when I first started looking at the charges, that this wasn't a valid offense.

Dan Mori: I didn't do this all right. You know, we had a civilian lawyer, Josh retelling in the US helping me. I had a couple other lawyers, Rebecca Snyder on my team. We had three Austrian lawyers, Steve Kenny, David McLeod and Mick Griffin. John North was a solicitor who helped us with our federal action. Brett Walker was the barrister for our federal action, which really put a lot of pressure on the Australian government.

Dan Mori: So there were so many people helping, um, and I needed that support and, and nothing, none of this would have been able to be accomplished without other people pitching in and really taking a lead on many of it. 

Melissa Castan: So Dan, can I take it back to you for a moment? Did you face any personal or professional repercussions that caused this?

Melissa Castan: Came out because of your advocacy and because of your outspoken defense, um, in this case and elsewhere. 

Dan Mori: Oh, look, I don't think it helped me on the promotion boards, uh, to have been out in the media. Um, 

Melissa Castan: well, the important thing is, did you get back to Hawaii? 

Dan Mori: I did get, I did get promoted to Lieutenant Colonel.

Dan Mori: Um, and I did get made a military judge in Hawaii and got back to Hawaii. So I was very. And, you know, you asked me earlier about my colleagues. I think the lawyers, those that were lawyers in the military understood what I was doing from a, you know, that's, that's his job. Um, is it to advocate for his client and they understood that.

Dan Mori: And so I didn't feel. I felt welcome back into the legal community in the Marine Corps because people understood. 

James Pattison: We can talk in, in retrospect about this period that has now passed. There are still people who are locked up in Guantanamo Bay and have been there since, in some cases, 2002, 2003. Yeah. Yeah.

James Pattison: What is the state of play with Guantanamo Bay? I didn't mean for that to rhyme, but it rhymed. 

Dan Mori: Right now, 2024, the 3 9 11 suspects, um who had been waterboarded and and there's been a lot of media about that attention. It was just Released that they're pleading guilty in exchange for not facing the death penalty So that was three trials that have been going on for years that i'm not sure when that plea will happen But could be wrapped up by the end of this year end of 2024 maybe the beginning of 2025 and it really just leaves a few trials left one of the people accused of um, You The bombing of the USS Cold and more relevant to Australia is Hambali, who's accused of the Bali bomb.

Dan Mori: Um, and so that, that'll be two trials that I'm sure will be, be looked at. But once those are done, there are some detainees that are there that the U. S. government says they don't have, they're not going to charge with crimes, but they're too dangerous to release. And they, some people have labeled them the forever detainees, you know, what's going to happen with them.

Dan Mori: And if you, if you give these 9 11. Suspects of life sentence. Well, I'm assuming they're probably going to serve at Guantanamo. And does that mean Guantanamo is going to, at least in its role as a detention facility, is going to remain until these three gentlemen with life sentences die? 

James Pattison: There was a news report in the New York Times about the plea deals that the 9 11 plotters are apparently going to go ahead with.

James Pattison: And, and in it, there, there are quotes from the United States, uh, lawyers saying that. This will finally bring some justice for people who were killed on 9 11. After over two decades of, of waiting and wars in Iraq and Afghanistan and changes in the legal administrations in the United States. I mean, is it, is it too little too late?

Dan Mori: I don't know. That's a tough question. And, you know, I hope it brings some. Some resolution of those that were directly lost loved ones in 9 11. Um, you know, that's, that's a personal feeling I'm sure for everybody involved with it, but it shows to me, I still sit back and I go, had these people been trying the federal court in 2007, their trials would have been over years ago.

Dan Mori: And so there was a more effective and fairer system to use the U S federal court system that could have tried these people and not make them wait. 10 years, 13 years, 14 years for justice. 

James Pattison: And also be more, more visible, I guess, to the, the victims families, um, to see justice served. 

Dan Mori: Absolutely. Right. It would have been covered in the main media much easier.

Dan Mori: They could have attended. Um, and while they do get to attend some of the proceedings, you know, it would have been much, much more convenient for it to be done, being going on in New York where it could have been tried. Um, the first World Trade Center, when it was bombed in the 90s. The trials happened in New York.

Dan Mori: Um, so it could have been done, could have been done much quicker in a, in a process that would have had more access, um, and not make people wait 15, 16 years.

Dan Mori: I do this like every year, Melissa, that I teach my law of war class. I'm, you know, maybe there's two of that. We're alive and remember 9 11. It's hard to go back and get people to think about the mindset in the world. You know, there was nothing the U. S. could do in 2002, 2003 that the world wasn't going to just go right along with.

Dan Mori: Right? The moral, the power that the U. S. had at that point to do good, which I think unfortunately they wasted. They could have done a lot of good having that sort of moral authority over the globe, right?

Dan Mori: Instead they went the other way down the dark side.

Melissa Castan: You've given us a terrifying insight into a particularly arresting case of law and legal process. Dan Murray, thanks for speaking with Case in Point. 

Dan Mori: Thank you very much for having me.