Review: In the Company of Cowards.

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This was published 9 years ago

Review: In the Company of Cowards.

By Daniel Flitton

Memoir
In the Company of Cowards
MICHAEL MORI
Viking, $29.99

The law is a loved creation of parliaments, on which politics takes its revenge. That is the David Hicks story in its essence, of politics trumping the law, ably told by his military lawyer, Michael Mori.

When politics trumps the law: <i>In the Company of Cowards</i> by Michael Mori.

When politics trumps the law: In the Company of Cowards by Michael Mori.

Hicks was guilty of training with extremists in Afghanistan in 2001, but at the time this was no crime. So an arbitrary system for prosecution was created to justify Hicks' incarceration at Guantanamo along with hundreds of other newly dubbed "unlawful enemy combatants" swept up on the battlefield.

What followed was farce, with a single redeeming credit. Soldiers, such as Mori, were permitted to vigorously and openly defend their clients and expose the callous disregard for procedural fairness in what became known as the Military Commissions. Hicks spent almost five-and-a-half years in Guantanamo, most of that time without charge, or any clear idea of when a trial would be held and under what rules. Yet he was already condemned as a terrorist by political leaders.

Mori's book comes after several others – most notably, Hicks' own account published in 2010 and a detailed investigation by ABC journalist Leigh Sales. Mori has not engaged these earlier works in a deliberate fashion, which is a pity, as the record is contested. But Mori does acknowledge the most fascinating question – why Hicks was in Afghanistan – is not one he can answer to any satisfaction. It certainly was not clear from Hicks' rather ethereal book.

Mori instead focuses on his attempts to secure Hicks' release from an unfair system after his capture. Mori has written in a pacy style, a manner that somewhat masks the years of obstruction by the Bush administration and the Howard government.

Over and again Mori tells of established procedures circumvented, to allow hearsay evidence or skew the rules to the prosecution. He returns throughout to his personal ethical convictions and belief in the ability of the established courts to provide justice; although his professed faith in the uniformed courts system sits oddly with his claim that being a defendant lawyer in the military is not good for career prospects.

Mori came to understand politics, not the law, would decide Hicks' fate. All the legal challenges to the fate of detainees at Guantanamo, from the US Supreme Court down, only served to delay. "Every legal battle we had engaged in we had won, but it meant nothing," Mori concluded.

So he turned to politics and a public campaign to generate pressure for the release of his client. Mori saw this as an ethical duty, although he clearly made enemies, in the prosecution, among fellow defendant lawyers and in the community. The extent this came down to competing personalities and divergent notions of fairness is impossible to judge from Mori's book alone.

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Mori clashed with colleagues and was himself investigated for possible misconduct after speaking publicly about the unfairness of the Military Commissions. He concedes to having an Australian lawyer Hicks had engaged early replaced for the sake of better media advocacy. Mori wanted to sway Australian public opinion to see the manifest injustice of Hicks' predicament.

His conclusion about the culpability of political leaders is sound. "By arresting and detaining those men, they had painted themselves into a corner from which it was 'politically impossible' to release them."

Except, in the end, and to Hicks' eventual benefit, politics was not bound by the rules.

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