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 created a 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 defense attorney 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 Guantanamo detainees.
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 thwarted 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 bar.
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.
Both the 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 the ugly “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.
Zbignew Zingh 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 articles at: www.ersarts.com. copyleft 2007.