David Hicks’s lawyer, the outspoken Major Michael Mori, has been threatened with a military discipline charge by chief US prosecutor Colonel Morris Davis.

And it’s fair enough, says Neil James, Executive Director of the Australian Defence Association. It’s probably not so much an attempt to intimidate Mori as “an attempt to remind him to be more of a professional lawyer “.

Davis has accused Major Mori of breaching Article 88 of the US military code which is used to punish any “commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department…” and attracts punishments of jail time and the loss of employment and entitlements.

As an American lawyer, Mori is a “very good showman”, says James. And so far he’s mainly been fighting the Hicks case in the “court of public opinion”. But this has obscured many of the real legal issues.

Ask most Australians and they’ll tell you the crux of the matter is that Hicks has not yet been tried. That’s why there are concerns that Davis’s latest manoeuvre will further delay a trial and therefore a final resolution to Hicks’s situation.

More obfuscation, says James. Hicks isn’t an ordinary criminal prisoner; he’s a prisoner-of-war equivalent under the Laws of Armed Conflict (LOAC). And it’s by recognising this essential difference that the government should be able to lobby for Hicks to return home sooner rather than later, regardless of whether he is tried on criminal matters.

Hicks is considered “a belligerent for one side in a war and was captured by the other side”. And his detention is legitimate, as the US Supreme Court emphasised in the June 2006 Hamdan test case. Even if every criminal charge against David Hicks was dropped tomorrow he could “still be legitimately detained under LOAC until the relevant conflict ends or, even more importantly, released earlier on captured belligerent parole,” wrote James in an article titled “What a to do about David Hicks” for the ADA’s journal, Defender.

The US will hold Hicks for as long as they believe he represents a danger of returning to the fight. And therein lies the problem — and Australia’s solution to it. Forget trying Hicks, further detention in Australia or paroled release in the community under a control order is a “much more achievable solution”.

Hicks would “need to give undertakings not to resume activities as a belligerent” and to abide by this parole until the applicable conflict ended, but his lawyers have already “indicated he is prepared to do this”.

In fact, Major Mori has told the ADA he thinks that their discussion paper, “How to Release David Hicks” is the most comprehensive in the country, according to James. “But he doesn’t quote it in public because it doesn’t help his showmanship approach”.

Peter Fray

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