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May 23, 2007
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Major Michael Mori (Photo: Newspix)

Life after Hicks

Friday, May 18, 2007
The deceptively folksy Major Michael Mori put a lot of his superiors offside with his defence of David Hicks. Now his reward could be a tour of duty in Iraq as the man he rescued from Guantanamo Bay flies home to Australia. By Leigh Sales.
Major Michael Mori's long adventure with David Hicks is almost over. "You know how I knew?" he asks. "It was the second weekend in a row where I didn't have to go to work."

For three-and-a-half years, Hicks has consumed Mori's life. But within days Hicks is expected to touch down in Australia and settle in at - most likely - South Australia's Yatala Prison until the end of the year, when he will be freed. Mori will be officially off the case the moment Hicks arrives home.

It has been quite a journey for the US Marine. When the Pentagon first appointed him as Hicks' lawyer, the widely held suspicion was that he would provide some sort of half-hearted defence and would be little more than a puppet of the US Administration.

Mori rapidly dispelled any such view. He has been so tenacious, unflinching and outspoken in his campaign against the White House on behalf of Hicks, a confessed terrorist sympathiser, that his career in the US military may have been derailed. The Marines have already passed over Mori for promotion twice - in January 2006 and in January this year. No reason was given and his performance won't be reviewed again until October. In the meantime, he's awaiting word of his next assignment.

"I don't want to talk about that," Mori says.

"Reckon you'll be posted to Siberia?" I rib him.

"We don't have a base in Siberia," he deadpans.

In Australia, Mori, 41, has become a celebrity and, for some, a hero for taking on the Pentagon, the Howard government and the Bush Administration. He's likely to face a tough readjustment to normal life in the US, where he's largely unknown. Meanwhile, he has played a major role in waking Australia from a deep apathy. It is not a question of what views you might hold on Hicks. It is the way in which Mori has exposed a twisted justice system created by his own country and, in doing so, reminded us what honour is really about.

The motto of the Marine Corps is Semper Fidelis - "Always Faithful" - and Mori has taken it and applied it to the defence of Hicks. He has, quite simply, done his job, but he has done it in an extraordinary way. It has been a once-in-a-lifetime experience, for him and for all the US military lawyers assigned to defend Guantanamo detainees.

"Lightning struck these people," says Gene Fidell of the National Institute of Military Justice in Washington, DC. "Fate placed an important responsibility in front of them and this will be the high point of their careers."

Mori did not make the first cut to work on the Guantanamo trials. In 2003, when his application landed on the desk of chief defence counsel Colonel William Gunn, the boss thought Mori lacked experience in international law, and did not hire him in the first intake. When two of the colonel's appointees withdrew, he took a second look at Mori's resume and conducted a phone interview.

Gunn was bowled over by Mori's enthusiasm. He hired the Marine, crossing his fingers that Mori's energy would make up for his inexperience. Gunn eventually assigned Mori to Hicks because he expected the Australian's case would be a comparatively easy one.

Hicks was white, spoke English and had told interrogators he was willing to plead guilty. Gunn wanted to reserve his most senior lawyers for the more complex cases and considered Hicks a good fit for Mori. It would stretch the Marine, but Gunn thought it wouldn't be beyond him. Events unfolded not at all as the chief counsel had anticipated. Mori was thrust to the front line, the only lawyer to date whose client has gone through the whole military commission process.

Mori's friends call him "Dan", short for his middle name Dante, a nod to his Italian heritage. He was born in Beverly, Massachusetts, about 30km north of Boston. His parents, having no military background, were surprised when their 18-year-old son announced he was enlisting in the Marines. He'd just posted terrible results in his first term of college, a victim of all-night partying and too much rugby union. He'd left little time for study.

Like all new recruits, Mori reported to the Marine Corps training centre at Parris Island, the legendary boot camp in South Carolina. After 13 weeks of strict discipline and a gruelling physical fitness program, he was sent to North Carolina on a four-year tour. During that time he decided it would be worth giving study a second try. He enrolled in an undergraduate degree in mass communications at Norwich University, a military college in Vermont, graduating in 1991 and becoming an officer.

During his last year of study, he was offered a slot in the Marine Corps law program and in 1994 graduated from the Western New England School of Law in Springfield, Massachusetts. He was admitted to the Bar in that state. In that 10 years, the former drop-out had turned his life around.

Mori's assignments took him around the US and to Japan, where he worked as both a prosecutor and defence counsel to Marines and sailors on charges ranging from stealing to rape. In 2003, he applied to work on the Guantanamo trials because he thought they would be interesting. "At the time, I was curious about the military commission process and I wanted to see it first hand," he said in a 2005 interview. "I had no real idea what I would find. No one ever believed they would happen."

According to one of Mori's colleagues in the Office of Military Commissions, his workmates found him "not such a tight-ass as you expect a Marine to be". He was very friendly and outgoing, and he had two noticeable traits: he was unable to sit still - he fidgeted, wagged his head from side to side and loved a joke - and he constantly chewed tobacco, spitting a stream of juice into whatever receptacle was available.

As Colonel Gunn had hoped, Mori turned out to be a quick learner, particularly when it came to the media. In his early appearances in 2004, he stumbled and sweated profusely. By 2007, he was a brilliant PR practitioner. He was credible and dedicated. With the help of his client's father, Terry Hicks, Mori successfully shifted the public focus from Hicks' conduct to the flaws in the military commission process.

The resulting political pressure allowed Mori to negotiate a very favourable plea deal for Hicks, who will serve only about seven months in prison by the time he returns to Australia.

"It didn't matter what time of day it was, he was always thinking of things to do for David Hicks," says Lieutenant Colonel Sharon Shaffer, one of Mori's colleagues in the defence office. "As far as lawyers go, you could not ask for a better guy."

Mori'srelentless campaign for a fair trial for Hicks transformed the Marine into an Australian folk hero. The reception he received at a NSW Bar Association function in August 2006 was typical. Some 500 top lawyers gave Mori a rapturous standing ovation and the association's Hugh Macken told the room he was surprised the lectern wasn't "awash with underwear".

"He may look like Gomer Pyle, but he pleads like Atticus Finch," journalist David Marr wrote. Curiously, Mori once revealed that To Kill A Mockingbird was one of the books Hicks' Guantanamo jailers would not allow him to read.

Mori's popularity came from two things: first, people couldn't help but admire a comparatively junior Marine who stood up against his own commander-in-chief; second, he talked about "justice" and "fairness". It almost made no sense seeing the man in the sharply pressed khaki uniform openly condemning his own government; but for Mori there were no contradictions. He had a sworn duty and he was going to see it through.

Through the force of his personality and a tireless media blitz, Mori managed to prick Australia's conscience about Guantanamo Bay. He reminded us of the values for which his country, and our country, were supposed to stand. It's hard to imagine any other country allowing a member of its military to speak out as stridently as Mori has done.

Now, whenever Mori walks the streets of Australia, people want to stop him and shake his hand. "It was very positive that a lot of Australians took an interest in David Hick's situation and I'm glad I had an opportunity to represent an Australian," he says.

He is married with twin boys but such matters, along with regaling people about his personal journey, is not something he's comfortable with. "I never like doing that up close and personal," he says. "I didn't do anything different than any military lawyer that would have been assigned to David."

Mori has continually ducked questions about the effect on his personal life or career by responding with comments such as: "Well, nothing I could face is as bad as David being locked up down there at Guantanamo Bay for nothing." He told The New Yorker magazine in 2004: "It's a noble thing to stand up for someone who might have no one else in the world to stand up for him. Marines love underdogs. I'm a Marine." Yet not everyone thinks Mori should be beatified. Adelaide lawyer Stephen Kenny has dealt with Mori more than most, as the original Australian lawyer on the Hicks' case. Within days of Hicks' arrival at Guantanamo Bay in January 2002, Kenny had rung Terry Hicks to offer his services pro bono.

Kenny had a longstanding interest in human rights and was immediately concerned that the US was holding prisoners beyond the reach of the law at Guantanamo Bay. By late 2003, when Mori was assigned to the Hicks case, Kenny had been working for the family for nothing for almost two years. Over time, the Australian lawyer and the Marine fell out.

In February 2005, the defence team imploded spectacularly when Kenny received an email from Mori informing him his services were no longer required. At the time, Mori told Kenny that Hicks had ordered his sacking, but Kenny never believed it and has broken his silence for the first time: "I don't complain about David's role in this. It appears to me it was Mori who made the decision. I had concerns regarding Mori's experience … we had differences. I have to be honest about that."

It was personalities and tactics - and Kenny isn't the only one to have found Mori hard work. Journalists and lawyers who deal with him regularly trade stories about his high-maintenance attitude. Last year he wasted a 7.30 Report crew's time in Washington with his childish antics during an interview - refusing to answer innocuous questions, rolling his chair out of shot and switching his microphone on and off.

It's surprising to learn that Mori barely keeps in touch with Terry Hicks, who has often learned of developments in his son's case via the media. Some of Terry's closest supporters praise Mori's efforts for David, but are not personally enamoured of him. Adelaide lawyer David McLeod, who took over from Kenny in 2005, won't comment on Mori, but it's an open secret that their relationship is barely functional.

One source of conflict on the defence team was Kenny's desire in 2004 to go public with full details of Hicks's abuse allegations. The American lawyers wanted to save it for the courtroom. "They opposed it on tactical grounds. They thought it would be better to bring it out at trial, springing an element of surprise," Kenny says. "I felt it would have looked unusual if we hadn't spoken out as soon as we could."

Kenny appears to be right: it does breed scepticism that Hicks's original 2004 affidavit alleging abuse in US custody doesn't mention some of the more serious allegations he made later, including two 10-hour beatings and anal penetration with an unknown object.

Despite their bitter rows, Kenny was still blindsided when he received Mori's 2005 email telling him he was sacked. Terry Hicks was in the dark as well. The first he knew of it was when Kenny rang to tell him.

To this day, Stephen Kenny represents Terry Hicks, whereas David Hicks is represented by McLeod. It may make for an awkward situation when the parties are negotiating future media deals. For Kenny's part, he holds no ill will towards Mori. For his part, Mori has never commented on the defence team breakdown or the reasons for Kenny's dismissal.

Among Mori's defence office colleagues, only Navy Lieutenant Commander Charlie Swift ruffled as many feathers. Swift represented Yemeni detainee Salim Hamdan, whose case caused the US Supreme Court to strike down the Guantanamo military commissions in 2006. Soon after, Swift was passed over for promotion and forced to retire under the Navy's "up or out" policy.

"I don't understand why the role that he played didn't cinch his promotion," says Gene Fidell, who has closely followed the Guantanamo cases. "I don't think anybody sat down and said, 'We're certainly not going to promote this guy', but why didn't they recognise the unusually distinguished work he had done?"

Is it now time for the US Administration to deliver Mori's payback? When Colonel Gunn hired the defence team, he feared their careers would ultimately suffer. "I was worried about that because I had a lot of experience in the military," says Gunn, who retired in July 2005. "It's hard enough being a defence counsel because you are always going against the military power structure, but at least you are defending a soldier. In this process, it was … even tougher, because our clients were accused of being members of al Qaeda."

Mori has for some time been hoping for elevation to lieutenant-colonel. It is easy to conclude that he's being punished for Hicks. But being passed over is not necessarily sinister - it may simply mean other Marines considered for promotion at the same time were more qualified for the limited number of senior positions. Mori also has an interest in becoming a military judge and has had some opportunities to join the military bench during the past couple of years, but that would have meant abandoning the Hicks case and he was not prepared to do that. There are reports that he has been offered remote postings to Guam or Chile.

Mori is having discussions with the Marines about his options, but he won't reveal the details. He could find himself on the battlefield in Iraq, as Marine lawyers are required to alternate their legal work with periods of command service. "They look at your experience and decide, they basically say, 'This is what we have for you'," says Mori.

Fidell says: "We're in two shooting wars at the moment and the work that he has done very capably in the Hicks case means he hasn't been where other Marines have been - to Iraq or Afghanistan."

If Mori is not promoted during the next 3½ years, he will be forced to retire from the Marines when he reaches 20 years of service in 2010. He will then be entitled to a military pension. Mori would like to see out that time, but missing out on the higher rank is a blow because his pension will be determined by what he's earning when he retires.

As for Mori's aspirations beyond the military, he's not sure what he'd like to do. For the past 3½ years, he has had no real interests other than Hicks. "I think it won't be reality until David Hicks is back in Australia," he says.

The case has dominated Mori's life to the point that at one stage the screensaver on his computer was a photo of his client. He has a vastly higher profile in Australia than in the US and would consider relocating here. His sister lives in Australia and Mori has enjoyed his involvement with our country: "Truthfully, I've met a ton of wonderful people in Australia," he told me. "But Leigh, I don't know. My sister would give me a hard time for copying her; you know what older sisters are like."

Given Major Mori's hero status in Australia, if he does decide to make the move with his wife and sons, he'll no doubt have his pick of jobs. That's if the Australian government granted him a residency visa.

Mori's concern remains with Hicks: "I hope David finishes with his educational goals and that he's given an opportunity to get on with his life without the media focus and attention that can sometimes have a negative effect on people. And I hope to keep in touch with him."

Leigh Sales is the author of Detainee 002: The Case of David Hicks, Melbourne University Press, $32.95

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